English crown grants

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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 LA W

NEW YORK

THE LAW AND HISTORY CLUB

PUBLISHERS 39 CORTLANDT STREET

COPYRIGHT, 1918, BY S. L. MERSHON

aiVIV£KSITY OF SOUTHERN CALIFORNIA LIBFJ\lt^

A;

CONTENTS - 7 _

PAGE

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

192S6SS

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 title 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 involv^ed.

FOREWORD

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 frtireatened 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 Irom
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. Tn
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 Humanitv'^ 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 unconscious
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 processes, 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,
lenves, 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 Egeria. 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-
"talned. 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 rehgious 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 yonnq; 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" are
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-
pie 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 Rolle 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 therefore 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 of sovereignty, conscrip-
tion was a "Divine right." Even *n 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 wailing 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
vallev well adapted for herding or tilling would there

IS

i6 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 bv 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
dwelling.^ 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 agressive 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 thev could co-ordinate and direct
them. These formerly independent but lesser chief-
tains qraduallv 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 GRANTS

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 proprie-
"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 firmlv 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 ^J^juyj^ 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 i2th,
"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 demarkation 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 English 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
mersfe the KIno['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
v.-ere 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 Statcn
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 serv^ant 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 office, 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.

5 th — 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.

7th — 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 Parliamentary 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 sufficient 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 numbenof 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 formally 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
Enf^lish 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 s©
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 under 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.

¥vom 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 Govej:iu2r-Gener3ls 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
niother country, it was ordained by Parliament that

so 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 official 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 Goyerriorj;GejiexaJ& 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
to 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
records.

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
was 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 solici-
"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 voyaged 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 Graced'

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 tidal 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 World 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 English 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 we
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-

60

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 Grants iwhich 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 l£^cflgcapJie£& 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 ty'pes of true and perfect womanhood.

Modern grace may be exemplified in death, but
the grace of our forefathers was immortal. It never
dies.

Wc Americans with somewhat less of ceremony

ENGLISH CROWN GRANTS 63

than bnisqueness denied the "divine right of kings,"
at the same time we accord to our judiciary "the
-diviiTC 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
companies 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 GROWN GRANTS 6s

ccived" 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 the 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 makihg 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 XQOamfilicial.
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-
ting 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-
"munlty; 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 de-
"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
\oi the Grant under consideration.

V

We must go back to the "stuffy little old English
Court room" of the Colonial period. We must there

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 througli^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," i^rrnpated 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", hut 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

cral, 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!

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 1791 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 tt
"all, if its conditions are performed."

"Nor can a State constitutionally confirm a
"void patent, so as to divest a title legally ac-
"quired 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-
cd, 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-

8o ENGLISH CROWN GRANTS

plcte 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 betok-
ened an absolutely void Grant. Such authorization,
however, by the Crown and Council renders such in-
struments complete and effective.

"Some, or at least one Grant has been made

"without the advice of the Council, which is

"conceived to be against the Queen's Commis-

"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 which 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 days

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, "fVhen 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."

(2 U. 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; 104U. 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, Ajffirmed 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 set up 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, 5 18.)

"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. HartU. 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
atuay; 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. 18

Hart, 12 Johns (N. Y. 77).
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 form 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 rC'
"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 Govem-
*'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. * ♦ * All
"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.

Modern 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 difficult 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 heretofbre 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 wars
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-
sufficient 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-official, repre-

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 Shinnecoct
oysters and clams.

It is an interesting fact, and worthy of note, that
in many respects the Indian common larv 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 1 5th, 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 Countv, New York. The deed
wns dated Mav T3th, 1664. The conveyance was
for "both of upland and marshes anvway 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

98f 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
New 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 held
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.'*

100 ENGLISH CROWN GRANTS

The Indian's clear, 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
Nicoll 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 I" (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

amVERSITY OF SOUTHERN CALIFORNIA UBRARi

.I02 ENGLISH CROWN GRANTS

the Atlantic Coast referred to 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 benign 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 87 1 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
privillges 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:

iq6 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 hank, 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 ENGLISH CROWN GRANTS

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 iii

"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."

^ ■ I ■■■ -

The human mind is helpless in any attempt to con-
ceive any theory upon which these admittedly "vacant
and unappropriated lands," between high and low
water mark, constituting the "shore" of Staten Island,
can possibly be excluded from the scope 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-
"palrlng the contract or vested rights of persons
"holding under valid, prior Independent titles."

(Devlne 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-
"tlon 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-
"tion 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. Supreme 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

ing 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,
188N. Y. 74.)

(Reversed on other grounds but this prin-
ciple held.)

"The mere fact that in the iQtH 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, Famham, 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

120 ENGLISH CROWN GRANTS

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 commercial 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 Hy 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 Fishkill-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, 19 16.)

"The English case of Blundell vs. Catterail
"(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 ivas 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 indi-
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 17 19) 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 tinder
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 miner-
"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-
"cies 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,
"transcient, 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, 19 16.)

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 Montgomeric
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. Underbill, 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
easter 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 east 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 majestie.

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 Langloisere "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.

The 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 CROWN GRANTS

along the New England and Long Island shores, as
is dearly 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 Lillius 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." (Tinicum Fishing Co. vs.
Carter, 6i Pa. 2i, 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."
(Tinicum 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.
Harm an 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 Justice 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-
"taining' 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 Svmes 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 appurteying."

"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

ENGLISH 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 J' (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.)

ISO ENGLISH CROWN GRANTS

"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." (Neill 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 Adrlensen 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

iS8 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 payment 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 Grants
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

i62 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 oflicial 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 occupanqr 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.

id4 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 title 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 insti-
"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 titles 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 title 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 of 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 Title 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 entitled "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 !

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 modem 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 Title

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 back
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 burled 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 !

i8o 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 I

"Such, if admitted, would of high heaven a
"hades make."

The American Title and Trust Company recently
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 promptly
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 i8i

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 Combury 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 proprietorship 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." (17 13.)
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 CONFIRMS
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 enjoymeit 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 EYEING, 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.

"ffcedings,"

These are pasturing lands where cattle 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." (Bouvier — "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 Kull, 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 Hmitts" of Rich-
mond County. The Crown had thereinbefore
granted the title 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: occasionly 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 outlets,
ponds of like character or with outlets.
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

pedically 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 appurtaining."

(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 Sjnnes 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 1 830, 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-
"action 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 arc
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)

208 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 "Placentia." 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 Navy. 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 the rights and pow-

214 ENGLISH CROWN GRANTS

ers properly exercised by the Lord or Lady of other
Manors. There is nothing, therefore, exceptional,
unusual or specially significant in the selection of the
Manor of East Greenwich in preference to the selec-
tion of other Manors, of which the King was the
Lord or the Queen was the Lady excepting however
that the original Grant of the Duke of York and
other basic American Grants were made as of the
Manor of East Greenwich.

The peculiar significance in such transactions was
in the fact that the Crown in dealing with much of
the Crown lands made such Grants "to be held as of
the Manor" and not as of the Throne.

"They were Grants by the King and not by the
Kingdom." When land was granted it was of the
personal Crown Estate while political authority when
granted was by kindly prerogative.

The three Charters of Virginia granted by James
I were held as of the Manor of East Greenwich;
so was also the New England Charter, issued in
1620; all these were granted by James I, between
1606 and the latter date. Charles I in his Grant of
Massachusetts Bay Charter in 1629, and the Charter
for the State of Maine in 1639, were held as of the
said Manor of East Greenwich. Charles II then fol-
lowed by issuing the two Charters of the Carolinas in

1663 and 1665, respectively and with the Rhode
Island and Providence plantations charter in 1663.
The two famous Grants to the Duke of York cover-
ing New England, New York and New Jersey, in

1664 and 1674 respectively were likewise held from
the King of England, "as of the Manor of East

ENGLISH CROWN GRANTS 215

Greenwich in the County of Kent in free and common
soccage and not in capite or by knight service."

Among all the American Colonial Charters, the
only departulre in such practice were the Grants of
Maryland, in 1632, and Pennsylvania in 1681, in
each of which it was provided that the same was to
be held of the Manor of Windsor in the County of
Berks, England. That of Georgia, granted in 1732,
was granted as of the Manor of Hampton Court in
the County of Surrey, England.

The issue of Grants of lands to be held as of the
King's Manor and not direct from the Crown, has
profound legal significance. This is best expressed
in the language of an eminent authority as follows :

"It was simply an adaptation to land beyond
"the sea, of a form originally used in the grant
"of Crown lands in England. Its use may be
"taken to represent the closeness of the legal
"connection between the colony and the home
"government — that America was, in the view
"of the King, simply an extension of the soil
"of England:'

This declaration prepares us for the statement that
the original title to waste, vacant, unappropriated and
unpatented lands of the realm was vested in the
Crown; that the English Sovereign by and with the
assistance of its Council, which it appointed and
could ignore, made Grants, therefore, to individuals
and corporate bodies; that lands granted thereunder
were held as of an English Manor, of which the
English Sovereign was Lord or Lady. Therefore
we must hark back to English Common Law pre-

2i6 ENGLISH CROWN GRANTS

vailing at that time to properly interpret and under-
stand the rights, conditions and stipulations expressed
in the Crown Grants so issued. To understand the
privileges enjoyed and the obligations incurred under
English Crown Grants to lands on Staten Island, we
must refer and defer to the Common Law of Eng-
land then governing the land tenures of the Manor
of East Greenwich in the County of Kent.

"The tenures of Kent were conclusive to the
"Court when judicially interpreting and defin-
"ing the Common Law of England as relating
"to land titles."

ADVERSE POSSESSIONS

UNDER

CROWN GRANTS

If it be true that the original source of every good
title was in the one Great Sovereign, and that it has
descended from the Beneficent King, for the com-
fort and well being of his subjects, certainly a title
by adverse possession constitutes a complete reversal
of that theory and must have emanated from the
chief potentate of the nether world.

The feudal system, with all that followed there-
from was based upon military conquest. It con-
stituted the reward of the victor. The victim, how-
ever, in flight from his foe, explained to those upon
whom his presence had been forced, that his adver-
sary had violently seized his estate and now held it by
adverse possession.

Society of even a Christian civilization, appears
at times to have found it necessary to accept the ob-
noxious doctrine that "Might makes right" even
though the Furies themselves overwhelm with cruel
violence the weak and innocent. A de facto tyranni-
cal government, though based on violence and blood-
shed is recognized by the family of nations if it sus-
tains itself for a reasonable period even at the ex-
pense of human liberty and freedom.

A nation seizing and holding territory by conquest

217

21 8 ENGLISH CROWN GRANTS

in an unrighteous war, extends its jurisdiction and
thereafter receives international approval and recog-
nition of its sovereignty so unrighteously obtained
if it but maintains possession and stamps into sub-
mission its newly but murderously acquired province.
Adverse possession is the child of this unholy doc-
trine but is accorded recognition in the temple of
Justice, but under rigid surveillance of the law. We
are not, therefore, surprised to find it looked upon
in our legal text-books as a foe of human society, and
yet as deemed a "necessary evil." It quiets litiga-
tion after maintaining a hostile grip upon properties
not its own until such evil possession "ripens into a
possessary title."

"There are cases where title by Adverse Pos-
"session may, and will, be upheld. // there is
"no disputed question of fact, and the posses-
"session has been clearly adverse and undis-
"turbed for the required period, the title may he
"sustained. But even in such a case that class
"of titles is not looked upon with much favor
"by persons who contemplate purchasing the
"property or loaning their money thereon or by
"the Courts/'

(Harley vs. James, 50 N. Y., 38.)
(Heller vs. Cohen, 154 N. Y., 299.)

"There are five essential elements necessary to
"constitute effective adverse possession:"

"First: The possession must be hostile and
under a claim of right.

ENGLISH CROWN GRANTS 219

"Second: It must be actual.

"Third: It must be open and notorious.

"Fourth: It must be exclusive.

"Fifth: It must be continuous.

"If any of these constituants is wanting, the pos-
"session will not effect a bar of the legal title."
(Enc. of Law, 2nd Ed., 795.)

"A claim to land, unaccompanied by actual pos-
"session will not ripen into a title, however long and
"persistently such claim is asserted."

(Cyl. of Law & P., Vol. I, 983.)

"A residence in the vicinity of the land, and a
claim to it, though such claim is generally recognized
and spoken of in the neighborhood and affirmed by
the vicinage, unaccompanied by any of the acts and
indltia of ownership, is insufficient to constitute own-
ership."

(Wood vs. McGuire, 15 Ga., 202.)

"The acts relied upon to establish adverse posses-
"sion must always be as distinct as the character of
"the land reasonably admits of, and must be exer-
"cised with sufficient continuity to acquaint the owner,
"should he visit the land, with the fact that a claim of
"ownership adverse to his title is being asserted.
"Trivial and disconnected acts, doubtful and equivo-
"cal in their character, and which do not clearly
"indicate the intention with which they are per-
" formed, cannot be regarded as amounting to
"possession. Otherwise a man might be disseized

220 ENGLISH CROWN GRANTS

"without his knowledge and the statutes of limita-
"tions might run against him while he had no ground
"to believe that his seizen had been interrupted."
(Cyl. of L. &P. Vol. 1,985.)

"Where adverse possession is sought to be shown
"by an enclosure of the land for the length of time
"prescribed in the statutes, such an enclosure must be
"a real and substantial one."

"The land must be completely enclosed."

"Land fenced only on two sides, one of the other
"sides abutting upon an unfenced highway and in-
"dicated only by marked trees, is not protected by
"a substantial enclosure." (Pope vs. Hanmer, 59
Am. Dec. 115.)

"The fencing of three sides of an oblong or square
"piece of land is not a sufficient enclosure to make an
"adverse possession so as to vest title in a wrong-
"doer as against the real owner, though such fences
"exclude the latter from the use and enjoyment of
"the land." (Armstrong vs. Risteau, 59 Am. Dec.

115.)

"Placing a fence consisting of small posts with two
"rails nailed on around a piece of land, without
"actually occupying the land or any part of it, and
"suffering the fence to go to decay in a year or two
"so that it will not keep out cattle, is not sufficient to
"constitute prima facia evidence of title to the land
"by actual possession.' (Borel vs. Rollins 20 Cal.
408.)

"A fence which the owner attempts to keep in re-

ENGLISH CROWN GRANTS 221

"pair constitutes an actual enclosure for the purpose
"of adverse possession, though a plank is sometimes
"off or a plank down." (44 S. W. iii.)

"The enclosure alone is not sufficient. It must be
"attended by actual possession."

"The payment of taxes upon land does not con-
"stitute actual possession of it." (Ambrose Oreg.
484, s6, Pac. 513.)

"Surveying the land, maping the same, and issu-
"ing a mortgage thereon, and occasionally entering
"upon the land to look after it, employing an agent
"so to do, or to occasionally cut and carry off fire-
"wood and rails therefrom, does not constitute actual
"possession." (Cyl. L. & P. Vol. I, 993.)

"The fact that the claimant of land posts notices
"upon it merely indicates an intention to hold the
"land, and is not sufficient proof of adverse possess-
"ion." (Lynde vs. Williams 68 Mo. 360.)

"The fact that one claiming a large tract of land
"under a deed, sold and conveyed many small tracts
"within the boundary is insufficient to show actual
"possession; so is the fact that the claimant offered
"the whole tract for sale and listed it for taxation."
(Fuller vs. Elizabeth City 23 S. E. 922.)

In the case of Jackson vs. Bonnell (9 Johns 163)
The Court held as to adverse possession, "The doc-
"trine of the Court with respect to adverse posses-
"sion is that it is to be taken strictly and not to be
"made out by inference but by clear and positive
"proof. Every presumption is in favor of possess-

222 ENGLISH CROWN GRANTS

"ion in subordination to the title of the true owner."

In the case of Robers vs. Baumgarten (no N.
Y.) the Court held: "Proof of an occasional resort
"to the lands in question in the cutting of salt meadow
"grass would not be sufficient to establish occupancy
"or possession in the absence of a deed describing and
"including them."

In the case of the Mission of the Immaculate Vir-
gin vs. Cronin (143 N. Y. 524), the Court found
that: "Where land is unenclosed, uncultivated and
"unoccupied, the fact that a person has for twenty
"years claimed title thereto, surveyed it, marked its
"boundaries by monuments, cut trees thereon from
"time to time, and for a few years has paid taxes
"thereon, do not establish adverse possession; nor
"do these facts, in the absence of constructive or ac-
"tual possession authorize the presumption of a Grant
"from the true owner." (Distinguishing Roe vs.
Strong, 119 N. Y. 316.) (Williams vs. Rand 9 Tex.
Civ. App. 651.)

In the case of McRoberts vs. Bergman ( 132 N. Y.
73) in which case Bergman relied upon adverse
possession and refused to stand upon a deed which
he claimed to have, showing title descending to him
from Lancaster Symes, the Court held that the
"plaintiff must recover upon the strength of his own
title and not upon the weakness of that of the de-
fendant. Where the former shows a title better in
respect to his right of possession, he is entitled to
recover."

Nowhere in the report of this case is the Lan-

ENGLISH CROWN GRANTS 223

caster Symes Grant referred to or his name intro-
duced by the Court or by the Counsel for either
plaintiff or defendant.

The Symes Grant was not at issue in this case
despite the frequently and much quoted legal tra-
dition that such was the case.

*'A party cannot claim by adverse possession
against the State if he took under a conveyance recog-
nizing the public right." (Bridge vs. Wyckoff, 67
N. Y. 130.)

No one having accepted a Grant from the State
can successfully claim thereunder as against the true
owner where the title claimed by the State has failed.

"A Crown patent is conclusive as against a title
"founded on mere adverse occupancy or those wrong-
" fully in possession." Gibson vs. Choteau 113 Wall
92; Parmelee vs. Oswega S. Co. 6 N. Y. 74.)

Constructive possession was sufficient under Eng-
lish Common Law.

"A party out of actual possession but who is in
"constructive possession may bring action for tres-
"pass." (Smith vs. Milles. Burnford & East Rep.
Vol. I, 475, Court of Kings Bench, 1786.)

"Silence is not a bar to a later assertion of title."
(Thompson vs. Simpson 128 N. Y. 270.)

"No title to land under water can be acquired as
"against the State or its Grantee by planting oysters
"thereon for any length of time without other title

224 ENGLISH CROWN GRANTS

"than that so sought to be acquired." (People vs.
Lowndes 5^ Hun., N. Y. 469 8 N. Y. Suppl. 908.)

"From the nature of the property it is difficult to
"show such a possession of land under water as is
"required to support the presumption of a Grant;
"as we fail to find any case where anything short of
**a permanent and exclusive occupation of the soil has
"been granted as sufficient." (Boswell on Lim. and
Ad. Possessions.)

"The permission or command of the State can give
"no power to convey private rights even for a public
"service without payment of compensation." (Muhl-
ker vs. N. Y. & R. Co. 197 U. S. 544. Birrell vs.
N. Y. & R. Co. 198 U. S. 390. Siegel vs. N. Y. &
R. Co. 200 U. S. 615.)

"One may not improve another's land without his
"consent and charge him therefor." (Spruck vs.
McRoberts 139 N. Y. 193.)

''Docks and two marine railways were not sufi-
"cient to establish adverse possession on the shore-
" front." (Delancey vs. Piepgrass 138 N. Y. 26.)

"The owner of the uplands had continued his
"boundary fences to low water mark, to prevent cat-
"tle passing around them, and had built a bulkhead
"and filled in with earth a small portion of the land
"between high and low water mark and had cut sedge
"thereon; and it was held that this was not such an
"occupation of the land as would support a defense
'*of adverse possession." (McFarlane vs. Kerr, 10
Bosw. 249.)

ENGLISH CROWN GRANTS 225

"In order to make good a claim of title by ad-
" verse holding, the true owner must have actual
"knowledge of the hostile claim, or the possession
"must be so open, visible and notorious as to raise
"the presumption of notice to the world that the
"right of the true owner is invaded intentionally and
"with a purpose to assert a claim of title adversely
"to his, so patent that the owner could not be de-
"ceived and such that if he remains in ignorance it is
"his own fault. A clandestine entry or possession
"will not set the Statute in motion. The owner will
"not be condemned to lose his land because he has
"failed to sue for its recovery, when he had no no-
"tice that it was held or claimed adversely." (Cyl.
Vol. I, 997.)

"There must therefore be a continuous oc-
"cupation and possession of the premises in-
"cluded in the instrument or some part thereof
"for twenty years.

"There must, however, be an occupant, not
"necessarily of the entire tract, but of some part
"of the land claimed to be held adversely."

"The possession and occupation referred to
"in the section of the Code is actual occupation
"of the premises or of some part of them and
"not the occasional going upon the premises for
"the purpose of cutting wood, and drawing it off.
"These acts do not constitute occupation and
"possession of any part of the premises. They
"partake rather of the nature of trespass on real
"property."

"To constitute adverse possession the Legis-

226 ENGLISH CROWN GRANTS

"lature contemplates an actual and continued oc-
"cupation of at least some part of the premises
"under a claim of title to it all and where there
"has been no actual occupation of any part and
"no inclosing, there can be no constructive ad-
"verse possession." (Wiechers vs. McCormicIc,
122N. Y. Ap. 860.)

"Whatever was done upon it was to take value
from it, not to put value into it. . . . Payment of
taxes, surveying and assertion of right do not con-
stitute possession. . . . Going upon land from
time to time and cutting logs thereon, does not give
possession. Such acts are merely trespasses upon
the land against the true owner, whoever he may
be. Any other intruder may commit similar tres-
passes without liability to any other trespasser.
Such acts do not constitute a disseizin of the true
owner." (Thompson vs. Burhans, 79 N. Y. 93.)

"A person cannot acquire title to an uninclosed,
unoccupied, unimproved parcel of land by taking a
deed thereof from one not the owner and then
merely going upon the land and there asserting his
ownership, nor can he acquire the title by taking
such a deed and then making an occasional foray
upon the land for grass or sand and thus com-
mitting trespass against the real owner." (Miller
vs. L. I. R. R. Co., 71 N. Y. 380.)

He who takes record title in descent from one
whom he believes acquired his title by adverse pos-
session must be able to prove the hostile intent of his
predecessor in possession. It will not be sufficient to

ENGLISH CROWN GRANTS 227

show that such predecessor held possession for the
period prescribed in the Statute. He may have held
under a lease or other instrument not hostile to the
true owner.

It must be shown by actual proof that for each
year during the whole term such possession was held
in an open, notorious and hostile manner, adverse to
the true owner and with all the conditions requisite
thereto.

Such proof is extremely difficult and rarely pos-
sible to obtain even where the facts are consistent
with such a theory.

It is one thing to know a fact and another thing
to prove the same without flaw and to the satisfac-
tion of a Court, especially where the theory is re-
pugnant to justice. In consequence thereof, the law
is strictly construed.

THE LARGER VISION

UNDER

CROWN GRANTS

He who takes title to lands, takes it subject to
all of the prior conditions and restrictions imposed
of record thereon.

"Assuming the King to be the source of
"all titles both of dignity and property. Grants
"of land from him to his chieftains were made
"in consideration of military service to him-
"self, i. e., the Crown, whenever required.

"These direct Grantees of the Crown, ten-
"ants in chief or in capite, as they were styled,
"parceled out their Grants among their foUow-
"ers or vassals, for like considerations of
"Knight service to themselves as mesne lords
"and these again to inferior persons in consid-
"eration of various kinds of service.

"Every land tenure of the kingdom was thus
"linked with and dependent on its immediate
"superior Grant, all culminating in the King
"as the Lord paramount and military chief of
"the State."

It will therefore be observed that each and every
sub-proprietor, through succeeding generations, who
took title to and entered upon any portion of the

228

ENGLISH CROWN GRANTS 229

lands covered and conveyed under an original
Crown Grant, acquired possession thereof under the
restrictions and limitations of the original foudation
Grant from the Sovereign.

In the opening chapter of this book we have
undertaken to show how modern title searchers in
tracing back through the records of the past gen-
erations, the descent of titles as they have come
down to us from generations now gone, have labor-
iously found their way to human Sovereigns as the
original source of all land titles.

They have halted at the throne of worldly mon-
archs and have noted as final and conclusive the
conditions of title imposed by earthly kings. They
have largely if not totally failed to discover and ap-
ply the fundamentally controlling conditions clearly
and emphatically recorded in the Great Book of
Records of the original Crown Grant made by the
King of all the Earth, i. e., the Book of all Books —
the Bible — the Word of God.

The basic conditions therein prescribed, if vio-
lated, carried their own penalties. The divine right
of reentry and confiscation are therein clearly re-
served, as against all Grantees who lack fealty and
service to the Great King.

The Sub-Grants made thereunder, by human Sov-
ereigns and all of the subsequent deeds and convey-
ances by individuals to individuals, despite their
"warranty's," admit of no possible unrestricted and
unconditional titles as vested in any citizen, to any
land in any portion of the habitable world.

All lands which are claimed to be privately owned
are in fact, consciously or unconsciously, held sub-
ject to clearly defined conditions of fealty and serv-

230 ENGLISH CROWN GRANTS

ice to the World's Great Sovereign, which condi-
tions are fully recorded in the Record of the Orig-
inal Crown Grant referred to above.

Such obligations *'run with the land."

Human kings recognize, (though in practice they
may disregard) these original and governing condi-
tions, when they assert the "divine right of Kings."
They thereby claim special dignity and rights of
property by Divine Charter. They therefore can-
not logically deny the force and effect of the condi-
tions imposed thereby.

There are certain implied and expressed rights
and privileges which attach to and descend with
each and every Grant to land from such a bene-
ficient and truly Royal source, even though such im-
plied rights are not engrossed in the language of
each of the conveyances.

These rights are confirmed by the divinely in-
spired Magna Charta of the Great King's Realm
and are enjoyed by the worthy Grantees under the
common law of Divine beneficience. Very solemn
obligations also attach thereto. Human Judges
have recognized such Divinely ordained rights of
common humanity, while a Christian civilization has
rediscovered the conditions imposed upon rights of
ownership. The conditions prescribed are Fealty
and Service, under the moral or common law of
righteousness.

The right to the air we breathe, the waters we
navigate, together with the sunshine we enjoy, are
rights common to all humanity and are inalienable.

One Grantee may not deprive another Grantee of
either one or more of such rights.

ENGLISH CROWN GRANTS 231

He who is at the source of a stream of water may
not divert the same to his neighbor's hurt.

He who chooses to operate a manufacturing plant
must so conduct the same as not to pollute his neigh-
bors' air or the water he drinks.

The popular appreciation of certain equitable or
moral rights is happily transforming human laws
and the spirit of fraternity is coming forth, more
and more, to full flower and fruitage.

In the toilsome upward climb of human life, to-
ward higher planes of thinking, so-called "property
rights" are becoming more and more subject to the
great moral principles or mandatory laws of the
Divine Sovereign proclaimed by Him for controlling
and governing all human relations.

In distress, one human, though a stranger to the
land owner, may trespass without penalty upon his
neighbor's land.

A man famishing with hunger, may rightfully de-
mand bread from his next-of-kin and even of the
community at large.

The possession of power gives no right to the
strong to oppress the weak, but on the contrary im-
poses a peculiar moral responsibility to succor and
defend the needy.

This principle, public conscience now admits,
holds good whether such power is represented by
miiltary weapons, consists of physical strength or
is inherent in the ownership of lands on which others
depend for life, health and happiness.

Science cannot isolate and exhibit in tangible form
that which constitutes the law of gravitation, which
law holds its sway in all organic matter. Neither
can we disassociate and visualize the moral elements

232 ENGLISH CROWN GRANTS

in human relations.

These elements when codified in action repre-
sent the great, though erstwhile dormant laws with
which human society, from its very concept has been
charged.

The human race is forging ahead to the accept-
ance of the true theory of Divine Sovereignty and is
catching anew, with increased light, the vision of
original Divine proprietorship. Temporary but con-
ditional human possession of land is to be followed
by ultimate possession by the Creator of all things.
His statutes are right. His laws are just. Having
out of His marvelous beneficence, issued to us His
Royal Grant, He doth require that we too shall be
likewise benefactors. While powers of administra-
tion are possessed, the true Grantee will not forget
his final accountability for the use to which he puts
that of which he has been made God's trustee for
the benefit of his fellow man.

A new conviction of moral right and obligation
is being formed. This is especially true of the
moral rights and obligations existing between fellow
Grantees and also between those who may and those
may not be able to trace back their land titles, with-
out a break in the chain of record, to the Great Orig-
inal Source of all titles, but whose genealogy extends
hack to the same Father's House.

This linking of property rights to the true and
only Original Source of all titles and the full and
complete recognition of the solemn conditions im-
posed thereon by the Royal Grant, is transforming
proprietorship into stewardship and is smoothing
life's rough pathways to many weary feet, which in

ENGLISH CROWN GRANTS 233

their toilsome wanderings have trespassed upon the
rights in lands of others.

The defiant cry of the original terror stricken
Cain, "Am I my brother's keeper?" was but the
unconscious outcry of a great moral protest within
him which he sought to smother, but which burst
forth to stir the consciences of men for all time to
come.

Wheeled vehicles, according to city ordinances,
may not travel on public sidewalks, but the cripple
may, with perfect impunity, roll his invalid's chair
thereon, under the higher law which makes its appeal
to manly strength and moral consciousness.

All traffic, despite statute laws, must cease, while
speed limits are disregarded, as the rushing ambu-
lance carries its burden of suffering to the hospital
built by strangers from revenues arbitrarily assessed
as "quit-rents" or taxes on lands generally claimed
by private individuals as owned by them in fee.

He who but admits that original proprietorship
and ultimate ownership of all land is vested in the
Divine Sovereign, back and above human sovereigns
(and who can deny it?) must then accept its carol-
lary that human relations are those of brotherhood,
and that stewardship is a true substitute for the
false doctrine of personal, unconditional, unre-
stricted and selfish ownership of land and other
property.

He who may have unwittingly trespassed upon
another's land finds under this doctrine fraternity
and not hostility in his efforts to amend the wrong.

The great corporations, which through error may
have extended their tracks and constructed their
warehouses, factories and docks on lands not their

234 ENGLISH CROWN GRANTS

own, may unhesitatingly make their appeal for right-
ful consideration, at the bar of equity in the court
of inner conscience where moral law reigns supreme.

Where such trespass has resulted in the enhance-
ment of values to remaining lands by virtue of such
added improvements having been placed adjacent
thereto, then equity should consider the values of
such increment, in abatement of damages claimed
for lands so taken in error of judgment or in con-
sequence of faulty surveys.

The moral law by divine mandate "runs with the
land," and its demand for equity and justice may not
be claimed by one and yet denied by him to another.

"He who asks equity must do equity."

It may not permit the ruthless tyrants of eviction
to lay their cold and remorseless hands upon the
gates of "God's acre" in which sleeps the silent
forms of the beloved dead.

Conscience, the arbiter of moral law, may decree
that temples for divine worship erected by error
upon plots of land erroneously supposed to be
owned by the devotees at such sacred shrines, shall
be exempt from invasion by land claimants.

Other great eleemosynary institutions, which are
but generous impulses of human hearts worked out
in wood and mortar, may carry out their plans for
humanity, unannoyed by processes of eviction.

Equity is but the expression of Divine ideals ap-
plied by men in human relations.

This same moral law imposed by Divine benefi-
cence, at the very cradle of the human race, may
even insist that weary womanhood and innocent
childhood shall find their way to sanded beaches
and ocean waters. The gateways to such shores

ENGLISH CROWN GRANTS 235

may be closeable under statute law, but may also
be held open by those proprietors who hear, heed
and obey the mandate of suffering as it speaks by
its need to such owners who recognize the conditions
of Fealty and Service upon which they but for a
short period of time hold land titles in trust for the
true Original Proprietor and Ultimate Owner of
all things.

They must thus think, who have discovered the
governing and controlling conditions inserted by the
Original Proprietor and Ultimate Owner of all
lands, the-King-of-all-the-Earth, when He issued His
Original Crown Grant to the Children of Men.
"What doth the Lord require of thee,
"but to do justly and to love mercy
"and to walk humbly with thy God."

"The Massachusetts Body of Liberties (Section
i) seems to think that * * * jf there be no
common law or statute for the case, it may be 'by
the Word of God,' so Christianity is part of the
Common Law." (Law of the Federal and State
Constitution of the U. S., Chap. 6, page 2^-)

"Christian Morality is the foundation of inter-
national law." — (Cardinal Gasquet, Rome.)

THE SYMES FOUNDATION

AND

CROWN GRANTS

Consistent with the ethical and legal principles
hereinbefore set forth and the larger view of true
citizenship, which recognizes human interdepend-
ence and mutual obligations, the owners of the Lan-
caster Symes Estate on Staten Island incorporated
The Symes Foundation and have transferred to it
the lands on Staten Island included therein.

We give in the following order a transcript of
the record covering the dedication to the public weal
of the Symes Estate, with its very large and increas-
ing values descending under and from the English
Crown Grant to Lancaster Symes.

Section i. — Letter from the Title Companies to

the citizens and friends of Staten

Island.
Section 2. — Certificate of Incorporation of The

Symes Foundation.
Section 3. — Contract between the American

Title and Trust Company and The

Symes Foundation.

These citations reveal the fact that after two cen-
turies the Life and Character of Major Lancaster
Symes has found full appreciation and the Estate on
Staten Island which he gathered together as a loyal

236

ENGLISH CROWN GRANTS 237

subject and Christian citizen has been set apart in
a manner to make it a lasting blessing to Staten
Island, of which he was a benefactor and to Amer-
ica, to which he came from England and to which
he devoted his life.

Section i.

American Title and Security
Company, American Title
AND Trust Company

And

The Symes Foundation,

Incorporated.
"Staten Island for Staten Islanders."

Richmond, Staten Island, N. Y.
July 2nd, 19 1 7.

To THE Citizens and friends of Staten Island :
After years of costly and laborious research con-
ducted by specialists in England and America, the
undersigned title companies under the direction of
their President, Mr. S. L. Mershon, have clearly
defined and definitely located, from official maps
and records, all of the lands on Staten Island orig-
inally granted to Major Lancaster Symes under the
English Crown Grant made to him in 1708 and
duly recorded at Albany, New York.

238 ENGLISH CROWN GRANTS

The regularity and binding force and effect of
the said grant has never been called in question in
any legal proceedings, but on the contrary it has
been admitted, ratified and confirmed by the Prov-
ince of New York, the State of New York, eminent
railway and other corporate and private counsel.
Upon it rests and from it descends the title to
various lands of great value on Staten Island upon
which costly ecclesiastical, residential and commer-
cial improvements have been erected and for which
many warranty deeds have been issued and ap-
proved for generations and which have never been
challenged by any title companies, mortgage com-
panies or private counsel. The titles so referred to
are acceptable to savings banks, building loan asso-
ciations and other organizations for loans thereon.

St. Andrews Protestant Episcopal Church at
Richmond, Staten Island, received its endowment
deed direct from Major Lancaster Symes, who re-
ceived his title from Queen Anne, "The good
Queen" of England.

For generations, however, a cloud has rested upon
large areas of land on Staten Island because of
the uncertainty in the popular mind as well as in
the legal mind as to what lands, other than those
known to be, were covered by and included in the
Symes title.

To this problem the undersigned two title com-
panies have successfully devoted their untiring ef-
forts and financial resources with the result that such
clouds of uncertainty and doubt have been com-
pletely dispelled.

From the commencement of this investigation by
these two title companies they have at all times

ENGLISH CROWN GRANTS 239

kept clearly in view the eventual free release of
the homesteads of Staten Island from the shadow
whether justly or unjustly cast upon such homes by
the Symes Grant. They have at all times intended
to free the religious and charitable institutions on
Staten Island from the lien of this Grant and to
open up under proper moral control, certain beaches
on Staten Island for free use and enjoyment by
Staten Islanders and their friends. These and other
benefits should make the Symes Grant a blessing to
Staten Island for all time to come.

In fulfilment of this ambitious program the two
title companies now voluntarily and with great pleas-
ure pass over to The Symes Foundation, which they
have established and endowed, a good, complete and
perfect title to the lands now remaining of record
in Richmond County in the name of the American
Title and Trust Company.

Such title cannot be successfully challenged or
assailed and is good and sufficient in The Symes
Foundation and to the defense of which the two
undersigned title companies pledge their unqualified
support at any time upon demand.

The control of this entire estate now passes into
the hands of the representatives of Staten Island
through The Symes Foundation but charged with
one supreme and sacred trust, that it will be used
at all times for the highest and best good of Staten
Island and its people as set forth in a contract, gov-
erning such use and executed between the under-
signed and The Symes Foundation.

In addition thereto provision has been made by
the two title companies for a large and increasing
financial endowment for the Symes Foundation,

240 ENGLISH CROWN GRANTS

which should result in unmeasurable benefits to the
public.

Respectfully,

S. L. Mershon, President,
American Title & Security Co.
Richmond, Staten Island,

American Title & Trust Co.
Wilmington, Delaware.

Section 2.
CERTIFICATE OF INCORPORATION.

The Symes Foundation, Inc.

We, the undersigned, all being persons of full
age and all or more than two-thirds of us being cit-
izens of the United States and all or more than
one, being residents of the State of New York, de-
siring to form a corporation for benevolent and
charitable work, do hereby and pursuant to sections
40 and 41 of the Membership Corporations Law
of the State of New York make, sign and acknowl-
edge this certificate as follows: —

First, the name of the proposed corporation is
The Symes Foundation, Inc.

Second, the purposes of the Corporation are (i)
to take title to and ownership of certain lands, prem-
ises, rights and privileges represented by and ex-
istent under the "Lancaster Symes Grant," which
rights and interests are now vested in and exercised
by the American Title and Trust Company, a Dela-
ware Corporation with its principal office in the

ENGLISH CROWN GRANTS 241

Dupont Building, Wilmington, Delaware; (2) to
hold the same in fee, to sell and convey any part
or parts, to devote to public use any part or parts;
(3) to use such proceeds as may be available from
said sale or otherwise together with any portion
of said properties reserved and held to promote and
develop the physical, mental, moral and spiritual
welfare of the people of Staten Island and else-
where, {a) by furnishing to the people of Staten
Island certain bathing beaches, (b) by erecting
thereon, equipping and sustaining fresh-air camps
and lodges, hospitals, rest cures, and hotels for the
benefit and recuperation of those needing such, (c)
by conducting what is commonly known as Chautau-
qua courses ; by operating moving pictures and other
proper and lawful pleasure-giving and instructive
amusements ; by conducting and maintaining musical,
literary, gospel, and evangelistic services, which
shall in every case be without admission fee and
free to the people (d) providing free pavilions and
making all such other improvements as may be
deemed necessary, desirable or convenient for carry-
ing out the purposes and objects of this corporation,
(e) to lay out, beautify and improve parks, drives,
roadways, board-walks on the seashores and to do
each and everything proper both expressed and im-
plied in the foregoing which may be deemed desir-
able to aid this corporation in promoting and de-
veloping the benevolent work for which it is organ-
ized.

Third, the County within which its operations are
to be conducted is Richmond County, New York
State.

Fourth, the principal office is to be located in the

242 ENGLISH CROWN GRANTS

Borough of Manhattan, in the County of New York
and State of New York.

Fifth, the number of its directors is five.

Sixth, the names and places of residence of the
persons to be its directors until its first annual meet-
ing are as follows :

Charles D. Durkee . . Rosebank, N. Y.

John E. Fisher Rosebank, N. Y.

S. L. Mershon Montclair, N. J.

Frank Hamilton .... Richmond, N. Y.
Robert G. Davey. .203 Broadway, N. Y.

Seventh, the time for holding the annual meeting
is on the first Monday of October in each year.

In witness whereof, we have made, signed and
acknowledged this certificate, dated this 12th day
of June, 1 9 17.

Charles D. Durkee. . .819 Fingerboard Road, S. I.

John E. Fisher 71 Central Ave.

S. L. Mershon 28 Forrest St.

Frank Hamilton. . .Andrews Ave., Richmond, S. I.
Robert G. Davey 404 E. 141st St., N. Y. C.

State of New York,
County of New York, ss.

On this 1 2th day of June, 191 7, before me per-
sonally came

ENGLISH CROWN GRANTS 243

Charles D. Durkee
John E. Fisher
S. L. Mershon
Frank Hamilton
Robert G. Davey

To me known and known to me to be the persons
described in and who executed the foregoing cer-
tificate and severally and duly acknowledged to me
that they executed the same.

(Signed) Peter F. Wiese

Notary Public

Kings County

Kings County Clerks No. 121

N. Y. Co. Clerks No. 382

N. Y. Register's No. 8247

Commission expires Mar, 30, 19 18.

I, the undersigned, Justice of the Supreme Court
of the State of New York, do hereby approve of
the within certificate. Dated at the city of New York,
County of Kings, this 22nd day of June, 1917.

Charles H. Kelby
Justice of the Supreme Court
of the State of New York.
State of New York,
County of New York, ss.

On this 1 2th day of June, 191 7, before me came
John E. Fisher of New York, Charles D. Durkee
of New York and Robert G. Davey of New York,
personally known to me and known to be the par-
ties whose names appear as directors of the fore-
goingCertificate of Incorporation, and being duly

244 ENGLISH CROWN GRANTS

sworn they severally declared that they were citizens
of the United States of America.

(Signed) Peter F. Wiese

Notary Public

Kings County

Kings County Clerk's No, 121

N. Y. Co. Clerks No. 382

N. Y. Registers No. 8247

Commission expires Mar. 30, 1918.

Section 3.

CONTRACT.

American Title and Trust Co.

WITH

The Symes Foundation.

This contract made and entered into this 30th day
of June, 1 917, in the City of Wilmington, State of
Delaware, by and between the American Title and
Trust Company, a Delaware Corporation with its
principal office in the Dupont Building in the afore-
said city and state. Its successors and assigns party
of the First Part and The Symes Foundation, Inc.,
a New York Corporation with Its principal office in
the Borough of Manhattan in the City and State
of New York, its successors and assigns, party of
the Second Part.

ENGLISH CROWN GRANTS 245

WITNESSETH THAT,

Whereas the party of the first part is the record
owner of certain of the rights, title and interests
now remaining unconveyed by it, in and to certain
lands and premises commonly known as the English
Crown Grant to Lancaster Symes; said lands and
premises being situated in and extending to the
bounds and limits of the County of Richmond in
the State of New York and which said English
Crown Grant appears of record in the office of the
Secretary of State at Albany, New York, in the
Book of Records of Patents, Volume 7, pages 411,
412, and 413, and also appears of record in the
office of the County Clerk of the said County of
Richmond and to which records reference is hereby
made for a more accurate description thereof and
also as shown on a certain map of said English
Crown Grants on Staten Island in said Richmond
County and which map is to be recorded in the said
County Clerk's office at Richmond, Staten Island,
and is entitled "Symes Foundation map of English
Crown Grants No. i."

Whereas the State of New York did commute
the quit rents payable under the aforesaid Lan-
caster Symes Grant, as does appear of record in the
Record Book of Quit Rents, Docket 48, page 106
in the Comptroller's Office at Albany, in the State
of New York, thereby ratifying, confirming and
establishing forever and in effect issuing a new Grant
and title in fee thereunder in the successors of Rec-
ord Title to the said Lancaster Symes, and

Whereas the State of New York did, on the

246 ENGLISH CROWN GRANTS

twelfth day of September, 1877, disavow any title
in and to the said Lancaster Symes Grant and Lands
as appears of record in the correspondence book or
letter file in the office of the Secretary of State at
Albany, New York, and in the following language,
to wit: —

"We have no knowledge of any lands be-
"longing to the State on Staten Island. In 1708
"a Grant was made to Lancaster Symes, of all
"and every piece and parcel of vacant and un-
"appropriated land and meadow on Staten
"Island. Many letters are received at this office
'relative to the title of occupants on the Island
'and lands supposed to be owned by the State,
"but we can furnish no information except the
"Grants which appear upon our records," and

Whereas the map hereinbefore referred to is a
correct tracing from a map made and prepared by
direction of the Hon. Secretary of State at Albany,
and which said map was ordered so made by, was
drawn for, was submitted to and was filed with
the said Hon. Secretary of State by the then State
Engineer and the then State Surveyor under the
official direction and command of the said Secre-
tary of State. And a blueprint of the said map
printed from the original of the said map so pre-
pared by the said State Officers and employees was
delivered at the office of the Secretary of State at
Albany to the first party hereto, the said blueprint
having been made in the State Engineer's office in
Albany for First Party by direct order from the
Secretary of State's office and delivered at the office

ENGLISH CROWN GRANTS 247

of the Secretary of State to First Party and said
blueprint shows the location of each and every por-
tion of said English Crown Grant made to lands
on Staten Island as aforesaid to Lancaster Symes,
excepting only, however that the said map and blue-
print thereof do not show the bounds and limits of
Richmond County set forth in the said Grant as
the bounds and limits thereof, and the said map
furthermore shows and was expressly made intend-
ing to show the vacant and unappropriated lands
granted as aforesaid to Lancaster Symes, the said
Grant covering and including among other things
"meadows, marshes, swamps, pools, ponds, waters,
water-courses, rivers, rivoletts, runs and streams of
water" . . . within "the bounds and limits
of Richmond County" as set forth in the aforesaid
English Crown Grant to Lancaster Symes, and

Whereas the First Party recognizes the fact that
there are many rights belonging to the public which
are not specifically comprehended in the statutes
of the State of New York, and that such truly
equitable rights frequently are not obtainable by
the public through an action either at law or in
equity but are only to be possessed and enjoyed
by the people when the same are voluntarily ac-
corded or surrendered by those from whom the same
are morally due to the community under the higher
law of righteousness, under which law of righteous-
ness human needs both individual and communal
dictate to the awakened conscience, the true rule of
action, and

Whereas the possessory rights of large areas of
the landed estate included under the aforesaid Lan-

248 ENGLISH CROWN GRANTS

caster Symes Grant, may have in fact passed from
first party, by the possession of parties now hold-
ing adversely to the original and record owners
thereof, to the impairment of said estate, but the
proofs of which adverse possession are difficult to
establish and largely non-procurable by such par-
ties in adverse possession and whereas a large num-
ber of good and law-abiding citizens residing with
their families on Staten Island, relying and depend-
ing upon such adverse possession and lacking suffi-
cient proofs thereof as required by law to sustain
what has become and is now their lawful possession
thereof, would be dprieved of their present actual
legal rights thereto to their great loss and hurt by
and in the event of first party's successfully invok-
ing the law for their eviction, and

Whereas many law-abiding and industrious citi-
zens of Staten Island have innocently taken pos-
session of lands included in, and which are now
actually covered by, the Lancaster Symes title, have
paid to supposedly the actual owners thereof, sub-
stantially full value therefor and have thereby fully
believed themselves to have become the actual own-
ers thereof, and to whom a process of eviction would
mean financial ruin and irreparable disaster, and

Whereas the First Party believes that any such
wholesale evictions though legal in character would
be and constitute a public calamity, would entail
great individual suffering and loss, and would ad-
versely affect the entire community, and whereas
First Party further believes that a happy, contented
homelife is a community's largest asset and should
be protected and safe-guarded at almost any cost

ENGLISH CROWN GRANTS 249

of private interests and especially by corporations
created by public permission, favor, and consent,
and which are intended to operate for private gain
consistent only with the public welfare, and

Whereas the First Party believes that Philan-
thropic Eleemosenary and Religious Institutions are
the highest expressions of human activity in a Chris-
tian Civilization and should be immune as far as
possible from all controversy and claims which
would impair their potency for the public weal espec-
ially where such claims are possessed by parties who
recognize the welfare of the public as paramount
to extraordinary gain to those who "have enough
and to spare" and especially where possessed by
corporations whose property values and commercial
prosperity are measurably dependent upon the ex-
istence and maintenance of such institutions, and

Whereas the First Party, moved by the consid-
erations hereinbefore expressed, has inspired by its
suggestion and has directed the organization and
incorporation of Second Party hereto and Second
Party hereto has become a corporate body under
the laws of the State of New York with full powers
for its complete performance hereunder and as pro-
vided herein, and

Whereas the parties hereto mutually and sever-
ally desire that the property rights and privileges
aforesaid which are situated within the bounds and
limits of said Richmond County and which are
owned and possessed by the first party hereto, shall
be and become controlled, managed, leased or sold
as herein provided and the proceeds thereof largely
devoted and applied for the physical, mental, moral

250 ENGLISH CROWN GRANTS

and spiritual betterment of Staten Island for all
time to come

Now THEREFORE, the parties hereto moved by
such unity of purpose and harmony in conclusions
hereinbefore expressed and further, in considera-
tion of the circumspect and unselfish attitude of
the people of Staten Island toward the First Party
hereto pending First Party's assertion and develop-
ment of proof of its right and title to the proper-
ties covered by and included in the Lancaster
Symes English Crown Grant and further in con-
sideration of those higher and holier claims that
rest upon each member of the social order in our
Christian civilization to seek the highest happiness
and greatest good of the individual and of the com-
munity at large and for other valuable considera-
tions, the adequacy and receipt of which the parties
hereto, herein admit and declare, the First and Sec-
ond parties hereto mutually and severally agree as
follows, to wit: —

I.

The First Party hereto does hereby grant, assign,
transfer, release and convey to the party of the
Second Part all of first party's rights, title claims
and interest now remaining in, to and under the
aforementioned English Crown Grant to Lancaster
Symes to lands and other values not heretofore con-
veyed by First Party within the bounds and limits
of Richmond County in the State of New York as
said Grant is shown in the Records in the office
of the Secretary of State at Albany and in the

ENGLISH CROWN GRANTS 251

office of the County Clerk of Richmond County,
New York, and as shown on the aforementioned and
described map and as contained within the said
bounds and limits of Richmond County as such
bounds and limits are now constituted and defined
and as they were constituted and defined at the
time of the issue by the English Crown of the afore-
mentioned English Crown Grant to Lancaster
Symes. This transfer and conveyance is absolute
and without reservation. The proceeds from the
sale, leasing or operation of the properties herein
referred to are subject only to the terms and con-
ditions herein provided; the lands conveyed to Sec-
ond Party as aforesaid are absolutely free of any
lien upon or ownership therein reserved to first
party.

IL

The Second Party hereto shall forthwith, or as
soon hereafter as it may find the same to be reason-
ably practicable, release by quit claim under the
said Symes Grant upon satisfactory application be-
ing made to it therefor, the following classes of
lands or properties on Staten Island and within said
Richmond County, to wit: —

(a) Each and every Church property or place
of worship that is devoted to the worship of Al-
mighty God and the Record title to which is held
by a duly accredited reliigous organization legally
incorporated and conducting or sanctioning such
worship with proper authority and right so to do.

(b) Every piece of land on which is erected an

252 ENGLISH CROWN GRANTS

institution devoted to human uplift, supported en-
tirely or substantially so by philanthropy or charity.
In this class shall be included: —

( 1 ) Schools.

(2) Children's homes, orphan asylums and
homes for the aged and infirm.

(3) Hospitals.

(4) Asylums.

excepting only however, that Second Party may at
its discretion decline to consider as included herein
or may from time to time elect to include herein
institutions supported by public taxation.

(c) Burial grounds or cemeteries which are un-
der religious auspices and ownership and which are
operated, controlled and possessed by corporations
organized to be conducted without profit.

All family burial places are to be included here-
under unless in the judgment of Second Party, cer-
tain burial places should be omitted because of in-
definite or uncertain locations or for other reasons
approved by the judgment and conscience of Second
Party.

(d) The homes and homesteads of Staten Island
shall be released by Second Party from the lien or
claim of the Lancaster Symes Grant, to such an
extent and in such instances as the judgment of
the Second Party may dictate. It is the desire of
First Party hereto that the homelife of Staten Island
as now existing in its present homesteads shall be
forever free of any and all claims or shadow of
claims under the said Symes Grant. Which home-
steads are and which are not entitled to such re-

ENGLISH CROWN GRANTS 253

lease shall be determined, however, by Second
Party. While Second Party is hereby clothed with
discretionary power to decide and determine in each
case the merits of each claim for releasement here-
under, the first party hereto, hereby solemnly charges
the second party at all times to consider well the
First Party's wishes in this matter and to discrim-
inate adversely only where such adverse discrim-
ination, in Second Party's judgment is truly equitable
and will not prove to be financially burdensome or
which discrimination is otherwise fully justified un-
der the spirit of this instrument.

III.

Certain beaches or shore fronts adapted for pub-
lic bathing places shall be set apart at the judgment
and discretion of Second Party for the benefits of
the public at large. Such beaches shall be selected
designated and so appropriated at times and loca-
tions approved by the judgment of Second Party.
Such beaches shall be under the management of
Second Party or parties designated and appointed
by Second Party and shall be free to the public
subject only to such limitations and restrictions as
may be from time to time considered desirable and
best and which shall be prescribed by Second Party
for the proper maintenance, improvement and de-
velopment of the same. Second Party may keep
and maintain such beaches in perpetuity for the
welfare of the public or may change and remove
such public privileges and facilities from one loca-
tion to another location as in the judgment of the
Second Party shall best serve the public, or it may

254 ENGLISH CROWN GRANTS

from time to time regulate and restrict the same
as in its judgment may best serve the highest good
of the public.

This provision is intended to restore to the citi-
zens of Staten Island and to those who seek its
shores adequate bathing beaches and beneficial
pleasure resorts well regulated under strict moral
control and management and where health and hap-
piness shall be promoted by equipment and appli-
ancees calculated for physical development, mental
entertainment and spiritual instruction.

It is intended hereby that God's free air and His
ocean tides on Staten Island shores shall be the
portion of the citizens as freely as the judgment
and discretion of Second Party hereto may so supply
the same under proper regulations substantially if
not absolutely without money and without price and
under pleasure producing and character building in-
fluences consistent with the teachings of Jesus Christ.

IV.

First Party having been advised by counsel and
citizens of Staten Island that certain parties have
trespassed upon certain of the aforesaid lands sit-
uated on what is commonly known as Lake Island
(which Lake Island Is a portion of Staten Island),
have established a garbage plant thereon and are
treating or manipulating thereon garbage from
other boroughs against the protests of an over-
whelming majority of the people of Staten I«^land
and also that certain prominent citizens of Staten
Island have been sued at law by certain parties for
damages which such parties claim to have suffered

ENGLISH CROWN GRANTS 255

from and because of such citizens alleged attempts
to restrain the manipulation of said garbage on
Staten Island in defiance of the aforementioned pub-
lic sentiment.

Now THEREFORE, Second Party shall at Its dis-
cretion, convey to some representative citizen of
Staten Island as trustee to be selected by Second
Party, preferably to the President of one of the
Staten Island Savings Banks or to a President of
a Staten Island Building & Loan Association, all
of Second Party's right, title and interest in and to
the said Lake Island and its waterfront including
the land under water connected therewith extend-
ing to the center or thread of Fresh Kill. The said
land and water front on Lake Island if and when
so conveyed may be sold by said trustee if deemed
by him necessary to compensate or financially pro-
tect said citizens, so sued as aforesaid, in the event
of a decree against said citizens in the above men-
tioned suit or to defray the expenses of the Second
Party or of Second Party and said citizens in con-
testing the right of said parties so to occupy and
possess Lake Island or any part thereof as afore-
said or to manufacture or treat garbage at any
place on Staten Island, all however subject to such
terms, conditions and restrictions as Second Party
may deem proper to stipulate in the premises. Full
discretion is hereby expressly given to Second Party
under this Section.

V.

As the lands or properties hereinbefore referred

256 ENGLISH CROWN GRANTS

to are of a varied nature or are of a diversified
character and as it may prove difficult at all times
to determine who may or who may not, be entitled
to the benefits intended to be granted as aforesaid
under Section II hereof or what property or prop-
erties may or may not be included or intended to
be included in any one or more of the foregoing
classifications and as the right and power to make
such determination should and must rest and abide
somewhere; the Party of the Second Part is to have
the final and exclusive right hereunder to settle and
determine the same according to its best judgment
if and as any uncertainty may, from time to time
arise, or when and as any uncertainty or controversy
relating thereto arises, anything contained herein to
the contrary notwithstanding. Such decision or de-
cisions made by Second Party from time to time
shall be final, conclusive and binding upon all parties
hereto or claiming hereunder. Such decisions may
be reversed, rescinded, or modified at any time there-
after by Second Party if it deems such reversal,
decision or modification to be equitable and proper,
but not where the titles subject to such decision have
passed from Second Party to other parties in the
meantime. '

VI.

Second Party may make such nominal charges
as it may from time to time deem to be proper,
proportionate, appropriate and sufficient, to cover
Second Party's actual cost in releasing the prop-
erties or lands referred to herein and may make
such charges in each case or in any case, a condl-

ENGLISH CROWN GRANTS 257

tion precedent to the making of such release or
releases or Second Party may at its discretion waive
any and all such charges and costs or may make
any charges therefor as it may consider equitable
or suited to the conditions of the applicant. It is
not intended that any profits shall be made by Sec-
ond Party from such charges but it is intended that
Second Party may charge what it believes to be
its fair average cost or its cost in the particular
cases. The Second Party is to have absolute author-
ity to fix such rates from time to time and such
rates or schedule of rates shall be final until altered
or changed by Second Party.

VII.

No action shall be taken by Second Party in any
matter relating to any release of property here-
under in which property any director or officer of
Second Party is personally interested as claimant
unless such director or officer is absent or with-
draws from the meeting at which such proposed
action is taken and during the final discussion thereof
at such meeting and at which meeting the ques-
tion is fully discussed and is so reported on the
minutes of such meeting as to have been finally dis-
cussed and voted on in the absence of such claim-
ant. No director shall vote on any matter par-
ticularly relating to property in which he or his
immediate family is known by him to be financially
interested as an owner or claimant thereto.

258 ENGLISH CROWN GRANTS

VIII.

The First Party waives any and all right to re-
ceive any further payment from Second Party from
any properties or land granted or leased by Second
Party for a nominal consideration only, under Sec-
tion II hereof as specified in subdivisions a, b, c, d,
e, f, of said Section II. All deeds granted by The
Symes Foundation shall be Quit Claim, and shall
be conditioned to prohibit forever the use of lands
affected for the manufacture or sale of alcoholic
beverages or liquors.

IX.

Second Party is to account in detail and pay to
First Party one-half of all money received by Sec-
ond Party from the sale, leasing or other business
done by Second Party with any of the lands, etc.
herein mentioned which may be sold, leased, or op-
erated by Second Party excepting as otherwise herein
provided. Such accountings and payments are to
be made by Second Party to First Party on the
first day of each and every January, April, July and
October of each and every year. Such payments
shall be accompanied by proper credit vouchers duly
audited, but Second Party shall not be required here-
under to pay to First Party any of the nominal
fees charged for properties released under Section
II hereof.

Any and all funds collected by Second Party here-
to on or between the dates designated herein and
which funds under the terms hereof are to be and
become payable to First Party hereto are to be de-

ENGLISH CROWN GRANTS 259

posited in Banks or Trust Companies designated
from time to time by the party of the First Part
and which Banks or Trust Companies shall be ap-
proved by and be in good standing with the bank-
ing department of the state in which the same is
located. When such funds are so deposited in said
banks or trust companies they shall be there so
held until the proper date of payment thereof to
First Party at the risk of First Party or all or a
part thereof may be paid to First Party by Second
Party prior to such date.

The remaining one-half of such moneys so re-
ceived by Second Party from the sale, leasing or
operation of the aforesaid properties is to be used
by Second Party on Staten Island for Second Party's
operating expenses and for the establishment of in-
stitutions and equipment intended by Second Party
to secure the physical, mental, moral and spiritual
betterment of the public. The form and manner
of such expenditure and use shall be such as in the
judgment of the Second Party will be consistent
with the principles and teachings of Jesus Christ.
Such expenditures may take the form of beach im-
provements; educational and religious instruction,
the erection and maintenance of a tabernacle for
interdenominational religious services, conventions
and other assemblies; the construction and main-
tenance of hotels for self-supporting young women
and others, the same to be operated at cost; the
building of bungalows for rentals at so near cost
as Second Party can determine; the equipment of
tennis courts ; the supplying of bathing facilities and
other proper comforts and conveniences for the hap-
piness of and benefits to the public; the maintenance

26o ENGLISH CROWN GRANTS

of what is known as fresh air work for women
and children and said expenditures may take such
other forms as Second Party may deem to be in
accordance with, the true intent of this instrument.
First Party shall have the right at any and all
reasonable times to inspect the books of Second
Party and to have the same at any time audited by
auditors employed by First Party at its own ex-
pense in order that First Party may be at all times
satisfied with the system and methods employed by
Second Party in keeping such accounts. Such ac-
counts shall be at all times well and properly kept
by Second Party.

X.

Nothing contained herein shall be construed as
even implying that Second Party shall not use a
proportion of its segregated income from the afore-
said proceeds, for the payment of its general ex-
penses incurred by it in the operation of its affairs
other than those actually incurred on Staten Island.
It is itnended, however, that all incomes accruing
hereunder to Second Party as afore provided are
to be used in the payment of Second Party's ex-
penses of administration and are to be preferably
invested and expended on tSaten Island as afore-
said, according to the judgment and discretion of
Second Party. In no event shall any such incomes
to Second Party be construed to be or constitute
a commercial profit or dividend payable to or to
be distributed among any members or shareholders
in Second Party or for any distribution other than
herein provided. The amount to be paid to the

. ENGLISH CROWN GRANTS 261

officers, employees, and directors of Second Party
as aforesaid is to be determined from time to time
by the best judgment of the said directors as proper
and fair compensation for actual personal services
rendered therefor, entirely apart from and inde-
pendent of any vested interest which any such party
or parties may have in Second Party.

XL

Second Party shall only be liable hereunder for
any expenditures and investments made according
to the exercise from time to time by Second Party's
officers and directors of their best judgment in the
premises. The First Party hereto declines to hold
Second Party's officers and trustees to personal liabil-
ity hereunder for any errors or mistakes of judg-
ment made by them while in the performance of
services rendered under this sacred trust.

XIL

Second Party may invest, preferably on Staten
Island, any funds which it may be entitled to and
does receive under its allotment of one-half of the
incomes hereunder if it desires so to do and by
such investment undertakes to create a reserve or
interest bearing fund for the carrying out of the
purposes hereof. In such events such investments
so made shall be made in accordance with the best
judgment of the directors and when so made, no
further obligation or liability shall rest upon the
directors for the safety of such investment.

It is the desire of the first party, though not

262 ENGLISH CROWN GRANTS

required hereby, that Second Party shall seek to
so invest or loan from time to time portions of sue
funds at low rates of interest as will enable the
worthy laboring classes to erect their own homes
on Staten Island according to plans approved by
the Second Party.

XIII.

In order that the true intent of this instrument
may be carried out in perpetuity, it is stipulated by
the First Party, and accepted by Second Party;

First, that the incorporating members of The
Symes Foundation and the first or original Board
of Directors thereof shall be five.

Second, that the first or original Board of Direc-
tors shall continue in office and shall have power
to choose and elect a director to fill any vacancy
or vacanies therein from whatever cause, for and
during the period of two years from the date of
the execution of this instrument and until their suc-
cessors are duly elected and qualified.

Third, that on or before the expiration of the
said period of two years, according to the judgment
so expressed by either party hereto the Board of
Directors of Second Party shall be increased to
seventeen members to be selected in the following
manner, to wit: —

The then existing Board of Directors shall choose
and elect two laymen who shall be officials in the
Reformed (Dutch) Church of Staten Island or
members thereof approved by two of its pastors;
two who shall be officials in the Methodist Epis-
copal Church of Staten Island or members thereof

ENGLISH CROWN GRANTS 263

approved by two of its pastors; one who shall be
an official in the Protestant Episcopal Church of
Staten Island or a member thereof approved by
one of its Rectors; one who shall be an official in
the Baptist Church of Staten Island or a member
thereof approved by one of its pastors; and one
who shall be an official in the Moravian Church of
Staten Island or a member thereof approved by
one of its pastors; and one who shall be a member
of the Roman Catholic Church. And said existing
Board of Directors shall also select nine others who
shall be active members or ministers of the Presby-
terian Church at least two-thirds of whom shall be
laymen, preferably though not of necessity, active
elders of the Presbytery of New York; and the
Presbytery of New York shall have the right at
its discretion to elect or substitute others In the
place of all or some of the laymen so selected or
to be selected. When the same have been elected
and have signified their acceptance in proper form
and manner, then these nine persons together with
the eight elected as heretofore described, shall con-
stitute the Board of Directors of The Symes Foun-
dation for the ensuing year or until their successors
are elected and qualified. This method shall be
adopted annually thereafter for the election of Di-
rectors. In case of failure on the part of the Pres-
bytery of New York to elect or substitute as afore-
said other directors for the position of Directors of
The Symes Foundation, the nine directors named
by the then existing Board of Directors shall act
as directors for such vacancies for the year in which
such failure occurs and for such service until their
successors are elected and qualified. The designa-

264 ENGLISH CROWN GRANTS

tlon of the Presbytery of New York as the organ-
ization having power hereunder at any and all elec-
tions to cause the election of the majority of the
Board of Directors is in no wise intended to make
The Symes Foundation a Presbyterian or Sectarian
undertaking. The power to control the Foundation
in the interest and for the furtherance of the high-
est ideals in social and economic life must abide
and rest under safe control and the Presbytery of
New York is designated without prejudice to, but
in the interest of and to conserve Christian Cath-
olicity in an Evangelical undertaking operating with-
out personal or private profit in behalf of the public
weal.

Should the General Assembly of the Presbyterian
Church in the United States of America by proper
action and the appointment of a proper committee
therefor decide to and does undertake to assume
the duties and responsibilities herein set forth and
provided to be done and performed by the Pres-
bytery of New York and so notifies second party
hereto then the said General Assembly of the Pres-
byterian Church in the United States of America
shall be from that date substituted for the said
Presbytery of New York as fully and completely as
if it had been so designated and provided in this
instrument at its inception and at the time of the
execution thereof.

XIV.

The First Party hereto disavows any and every
desire on its part to impose any restrictions or bind-
ing pledges upon the Directors of The Symes Foun-
dation that would in any wise interfere with the ex-

ENGLISH CROWN GRANTS 265

ercise by the said Directors of their unhampered
and best judgment as Trustees in the election of its
Executive officers. First Party would, however,
herein express its opinion that because of special
legal training. Christian education and experience
together with a keen, close and sympathetic acquaint-
ance on his part with the needs and future possibillti-
ties of Staten Island, Robert G. Davey, is specially
qualified to act as the President and managing Direc-
tor of The Symes Foundation. First Party further
expresses its opinion that qualification for duty, effi-
cient service, together with health and strength make
their own appeal for continuing re-election of a faith-
ful officer.

XV.

It is especially and particularly stipulated and
agreed between the Parties hereto anything con-
tained herein to the contrary notwithstanding that
if in the course or progress of time any of the restric-
tions or limitations hereinbefore imposed by First
Party are deemed by Second Party to be impractical
or in effect hamper and impair the carrying out of
the true intent of this instrument then and in that
event or at such time or times as such occasion may
arise Second Party may make overture to the afore-
said General Assembly of the Presbyterian Church
in the United States of America for a modification
or cancellation of such restrictions or a temporary
suspension thereof and such action which may at
such times or times be taken by the said General As-
sembly, shall be binding and conclusive in the prem-
ises and such action or actions is hereby ratified and
confirmed in advance and shall have the same force

266 ENGLISH CROWN GRANTS

and effect as if the same had been stipulated and in-
cluded herein at the time of the executiion hereof,
but in no such event shall the Evangelical and inter-
denominational character or spirit of this instrument
be impaired.

XVI.

The First Party hereto reiterates its solemn de-
sire and intent that the Second Party shall have and
Second Party does hereby receive the lands, claims,
rights and properties herein specified, charged with
a greaet moral responsibility to use its highest and
best judgment in behalf of the health, happiness and
welfare of the citizens of Staten Island and the
proper and conscientious conservation of all the in-
terests committed to it hereunder by the First Party.
In witness whereof the parties hereto have
caused this instrument to be duly executed by their
respective Presidents, duly attested under their
corporate seals on the day and year first above
written.

American Title & Trust Company.
By S. L. Mershon,

President.
[seal]
Attest

Walter Merritt Brokaw,
Secretary.
The Symes Foundation,

By Robert G. Davey,

President.
[seal]
Attest

J. C. Fisher, Secretary.

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