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432 pp., 61/8 x 91/4, 4 maps, notes, index

$49.95 cloth
ISBN 0-8078-2590-5

$24.95 paper
ISBN 0-8078-4883-2

Published: Fall 2000

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The Anti-Rent Era in New York Law and Politics, 1839-1865

by Charles W. McCurdy

Copyright (c) 2000 by the University of North Carolina Press. All rights reserved.


The most spectacular tenant rebellion in United States history began on the 726,000-acre Manor of Rensselaerwyck in 1839 and gradually engulfed the other great estates of eastern New York. At its height in 1845, the uprising involved approximately 10,000 tenant families in eleven counties with a total of 1.8 million acres under lease for lives or forever. An archaic legal form, unique to the Hudson-Mohawk region, lay at the root of the revolt. Lawyers called it a "lease in fee." Tenant farmers had other words for the contractual relation this legal form established and sustained. They described themselves as a people enmeshed in "feudal servitude interminable," an "unhallowed bondage" that amounted to "voluntary slavery." Emancipation was their goal. The rent strike was the instrument they chose to unify their communities and dramatize their plight for the general public.

Tenant resistance to rent collections vexed landlords and embroiled New York politics for more than a decade. Armed bands of anti-renters intimidated sheriffs who tried to serve process and terrorized neighbors who subverted the cause by word or deed. Three people were killed. Although state governors sent the militia into Anti-Rent counties three times between 1839 and 1845, the tenant agitation always resumed after the troops departed. Landlord responses to the rent strike varied from county to county and over time. On the Manor of Rensselaerwyck, the proprietors offered to sell their interest in tenant farms before the strike began. Their tenants, however, claimed that the terms were unacceptable. As the Anti-Rent movement grew larger and its threat to rights of property and contract more alarming, the Van Rensselaers dug in their heels and refused to compromise. The majority of landlords went the other way. Dozens of great proprietors with no intention of selling changed their minds in the face of Anti-Rent resistance and hostile public opinion. They eventually accepted offers, proposed from the outset by the Anti-Rent associations, that converted covenants for rents and services into mortgages. Most tenant families bought their farms during the late 1840s and early 1850s. But the rent strike on the Manor of Rensselaerwyck did not come to an end until 1865, when state militiamen returned with orders from New York's highest court and crushed the last pocket of tenant resistance. Many manor families lost their homes; many others remained mired in "voluntary slavery." Liability for perpetual rent is attached to scattered parcels of real estate in eastern New York to this day.

The amazing thing about the Anti-Rent story is that nobody defended the lease in fee after the rent strike began. Four consecutive state governors condemned it, one legislative committee after another denounced it, a generation of appellate judges hated it, and virtually all the organs of public opinion scorned it. Even the forty or fifty landlords with a vested interest in the rent system came to regard it as an anachronism that ought to be extinguished. Yet the lease in fee survived. It survived a succession of ingenious land reform proposals drafted at the behest of renowned New York governors. It survived a constitutional convention that outlawed the lease in fee in future agreements but did nothing for the thousands of families constrained by existing contracts that ran forever. And it survived more than a decade of litigation in which the state judiciary recast New York's law of real property yet declined to slay a legal form that had been spared by the political process.

Much of what we know—or think we know—about politics and law in the 1840s makes the outcome of the Anti-Rent agitation seem surprising. Historians of the Second Party System have shown that Whig and Democratic leaders sought to win elections by posing as champions of republican values, framing distinctive agendas for government action, and portraying the opposition as antirepublican or aristocratic. Competition between the two parties generated astonishingly high rates of voter turnout. Because every ballot counted in such a competitive political order, each party organization had an incentive to reach out for any big bloc of voters whose particular grievances could be accommodated within the party's more general public philosophy. Anti-renters were a logical target of opportunity on both counts. Tenants outnumbered their landlords by a ratio of 1,000:1, and the Anti-Rent associations bid for public support with appeals to republican values from the beginning.

Viewed from the perspective of mid-nineteenth-century law, the survival of the lease in fee seems equally puzzling. Since the publication of Willard Hurst's pathbreaking Law and the Conditions of Freedom in the Nineteenth-Century United States forty years ago, legal historians have repeatedly shown how contract principles, property rules, and constitutional doctrines facilitated the dramatic changes we now call "the market revolution." Judges and legislators not only conceived of law as an instrument of policy but, in Hurst's words, "valued change more than stability and valued stability most often where it helped create a framework for change." The idea of progress permeated the legal system; as a result, whole domains of law tended to favor "dynamic rather than static property, property in motion or at risk rather than property secure and at rest." Anti-Rent complaints about the lease in fee, a paradigmatic form of static property, made it a logical candidate for extinction. Lawyers associated with both the Whig and Democratic parties claimed that manorial tenures impaired the tenants' ability to obtain credit and adjust to new market conditions, frustrated the adoption of improved agricultural techniques, and impoverished the farmers and villagers of the Hudson-Mohawk region. Yet the lease in fee was not suppressed by statute, by New York's bellwether constitutional convention of 1846, or by judicial decision. Even private bargaining in the shadow of public opinion failed on the Manor of Rensselaerwyck. Explaining this paradox at the borderland of American legal and political history is the principal purpose of this book.

The structure of the book is straightforward. The first chapter accounts for the emergence of the lease in fee as a problem in New York public life; the last two describe how it ceased to be regarded as a problem that required a public solution. The intervening chapters proceed chronologically. Each recounts the struggle for land reform against the backdrop of other issues—banking, internal improvements, public and private debts, labor radicalism, slavery—that not only competed for the attention of lawmakers but also influenced their response to Anti-Rent petitions and proposals. Four main themes are elaborated as the story unfolds. The first is the changing conditions of law that set limits on government's competence to disturb the property and contract rights of landlords. The second is the role of lawyers in integrating legal theory and party ideology as they tried to formulate land reform programs capable of passing constitutional muster. The third is the changing conditions of politics that either prevented party leaders from mobilizing their own people behind a land reform measure or encouraged members of the opposition to prevent the enactment of decisive land reform legislation. The fourth is the manifold ways in which the discourse of lawyers and politicians at the state capital constantly reconfigured the matrix of action on the ground. My focus throughout is the law-making process, the strategic behavior of private adversaries, and the ways both were shaped by legal doctrine and partisan politics in a federal system.

This enterprise requires a new approach to integrating legal and political history. Most accounts of social movements, including the standard histories of the Anti-Rent era, emphasize the resulting effects on law and politics. At the heart of such studies—good, bad, and indifferent—is a presumption that the legal system and the party system respond to "social forces." In the strongest formulations, law and politics act as mirrors that reflect the demands placed upon them. This book, in contrast, considers the effects of law and politics on a social movement. It treats the legal system and the party system as forces in their own right and shows how each, sometimes separately though more often in combination, channeled action and shaped the formation of agendas by public and private actors alike. Integrating legal and political history in this way requires attention to the distinctive logics, the distinctive cultures, of law and party politics. It requires attention to the role of lawyers in bridging the two. And it requires attention to the configurative effects of all these things on the "social forces" that figure so prominently in conventional studies of American reform movements.

What follows, then, is an account of the relationship between law and politics within the context of one evolving event. The book does not argue a single thesis. Jurisprudential imperatives and partisan imperatives converged to check the drive for land reform in different ways at different moments in time. Throughout the Anti-Rent era, however, there was constant tension between legal constraints and political opportunities on the one hand, and political constraints and legal opportunities on the other. By writing a synchronic narrative that highlights the mutual penetration of legal doctrine and partisan politics, I hope to engage both legal historians inclined to regard most studies of politics as a wasteland (one election campaign after another) and political historians inclined to regard most studies of law in much the same way (one judicial decision after another). Some readers may decide to reconsider their assumptions about how the nineteenth-century "polity of courts and parties" operated and how it affected social policy. I also like to think that telling the Anti-Rent story fulfills an important purpose of humanistic scholarship. By showing how law and politics frustrated the achievement of something everyone wanted to achieve, this book may help us to think in useful ways about the ideas and institutions that diminished the promise of democracy in the American past.


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