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

Author(s):McCurdy, Charles W.
Reviewer(s):Wallis, John Joseph

Published by EH.NET (September 2002)

Charles W. McCurdy, The Anti-Rent Era in New York Law and Politics,

1839-1865. Chapel Hill: University of North Carolina Press, 2001. xvii +

408 pp. $49.95 (hardcover), ISBN: 0-8078-2590-5.

Reviewed for EH.NET by John J. Wallis, Department of Economics, University of

Maryland.

In 1629, Kilaen Van Rennselaer, received by grant from the Dutch government a

manor on the North River of New Netherland. After conquest by the British, Van

Rennselaer’s title to his fiefdom was confirmed by the English colonial

governors, and served as a model for units of local government in the colony.

“With few exceptions, the great proprietors agreed that land should never be

alienated in fee simple.” Instead, the manors were peopled with settlers

farming under life or perpetual leases, on land encumbered by what

revolutionary America recognized as “feudal” obligations. Tenants typically

owed one day of labor service a year, the payment of “four fat fowls” on rent

day, an annual rent fixed in bushels of wheat, and were subject to the reentry

of the landlord should any obligations go unfulfilled. On the 720,000-acre

Manor of Rennselaerwyck, most tenants held perpetual leases, which could be

passed to succeeding generations or sold. Sales, however, were subject to a

quarter sale, which required payment of one-quarter of the sale price to the

landlord. The creation of such land tenures had been prohibited in England

since the passage of Quia Emptores in 1290; colonial America had, in effect,

taken a 400-year step backwards along the banks of the Hudson River.

Charles McCurdy has written a fascinating account of the “Anti-Rent” movement

that formed in New York in 1839 in opposition to these manorial tenures. By the

early 1840s, thousands of tenants spread through the great estates refused to

pay their rents. New York politicians, both Whig and Democrat, denounced the

land contracts as anti-republican, blamed the contracts for the failure of

agriculture practice and productivity to improve on the estates, yet generally

agreed that the property rights vested in the proprietors by their original

charters enjoyed the legitimate protection of the contract clause. For the next

thirty years the anti-rent issue was never far from the center of New York

politics, most prominently in the early 1840s. In the 1840s, organized into a

political party, the Anti-renters held the balance of power between the Whigs

and the Democrats and so were able to demand concessions from both parties.

Ultimately, their power went for naught, as the anti-renters never fashioned a

politically and constitutionally acceptable way to extinguish the land

contracts, compensate the land owners, and give tenant farmers free and clear

title to their lands.

McCurdy is a professor of Law and History at the University of Virginia. His

book blends legal and political history to trace out the course of a

fundamental conflict in American democracy: how, in a country where the people

are sovereign, are the property rights of private individuals to be protected

when the community at large agrees that those rights work grievous harm to the

community? Are all vested rights to be protected by the commerce clause? There

is no absolute answer to this question, as McCurdy neatly explicates, although

ideologues and actors on both sides of the question articulated absolute

beliefs. In New York, vested rights ultimately triumphed after a long and

tortuous attempt to craft an active policy of state intervention that would not

violate the constitutional belief in the sanctity of contract.

This book has much to recommend it. The scholarship is impressive, no stone

related to the anti-rent movement goes unturned. The legal issues are clearly

explained and developed. McCurdy ably describes the evolution of legal ideas as

lawyers and lawmakers struggled to find a solution to the crisis. But it is

also a somewhat difficult book. I have been reading Jean Edward Smith’s

biography of Grant. By focusing exclusively on Grant’s story, Smith tells a

history of the Civil War simultaneously more organized and purposeful than any

I have read. Too neat for reality, but wonderfully informing as a way to keep

who, what, when, and where in a coherent picture. There was, of course, a logic

to Grant’s participation in the war and as the war drew to a close, Grant’s

perspective became increasingly integral to the war’s conclusion.

The Anti-rent movement was not nearly so central to New York politics, and

certainly not to national politics, as Grant to the Union war effort. As

McCurdy realizes, one cannot understand politics in Jacksonian New York simply

through the lens of the anti-renters. Much of the book is devoted to explaining

the politics of New York, which were enormously complicated in the 1840s. New

York Democrats had two distinct branches, the Hunkers and the Barnburners,

whose divisions were as deep and lasting as the Democratic differences with New

York Whigs. The shifting balance of numbers between the two/three major

political parties created opportunities for the anti-renters to play a pivotal

role in state politics in the mid-1840s. Moreover, the importance of New York

in national politics meant that New York politicians were always constrained by

the impact of national issues, such as the Bank War, annexation of Texas, and

slavery.

McCurdy does an excellent job with political events, but his focus on the

anti-rent movement occasionally produces an uneven political history. For

example, at the peak of the Anti-renter’s political power between 1844 and 1846

(the Anti-rent party determined the outcome of statewide elections in 1846 and

delivered the governorship to John Young, the Whig candidate), the central

issue in New York politics was calling a state constitutional convention and

implementing a series of constitutional amendments dealing with state debt,

taxation, internal improvement spending, and corporations that arose out of the

near brush with financial default in 1842. We are treated to an excellent

discussion of the negotiations leading up to the decision to call a new

convention, but then nothing about the convention and precious little about the

constitution.

The larger story that McCurdy tells about the course of the anti-rent movement,

and the ultimate failure of the anti-rent strike, is embedded in the larger

political history. As the economy headed into a deep depression in 1839,

tenants on Van Rennselaerwyck began the rent strike, which spread to other

manors. Whig Governor Seward accepted the challenge that the “lease in fee”

contracts posed, promising both to come to the aid of the tenants without

trampling the rights of the landlords. What emerged from the mind of William

Duer, was scheme to use the eminent domain power of the state to condemn the

landlords’ titles, compensate the landlords for their losses, and transfer

clear fee simple titles to the tenants. McCurdy makes a strong case that some

form of “compensated emancipation” was the only scheme that stood a chance of

solving the rent crisis. But politically it proved impossible or impractical to

implement.

The reasons were complicated. Three alternatives to compensated emancipation

were advanced. One was to challenge the titles of the existing landlords. In

this approach, the state would suspend payment of tenant rents temporarily

until the courts were able to determine whether the landlords actually

possessed clear and legal title to their lands. This appealed to the tenants,

who would immediately stop building up obligations for back rents. Legally,

however, the option was doomed, as acts of New York in 1788 and 1805 made it

clear that the titles to the manor lands vested in the landlords by right of

adverse possession regardless of the way in which the titles originated. The

second solution was to tax rents, which had previously enjoyed an exemption. A

third proposal would have worked through the state power to regulate

inheritance, and eliminate manorial tenures through “devise and descent,”

gradually eliminating manorial tenures as tenants and landlords expired.

All four proposals offered different incentives to different groups. The

political complications were periodically magnified by the outbreak of violence

on the manors themselves. The anti-renters actively resisted the attempts of

landlords to evict tenants both through the weight of community opinion and,

when necessary, through violence. Anti-renters disguised as Indians threatened

sheriffs, occasionally tarred and feathered them, and in one critical instance,

shot and killed a deputy to prevent them from carrying out their duties. Just

as no politician in either political party was willing to approve feudal rents,

no politician was willing to sanction violence as a means of protesting the

rents. Every instance of violent resistance polarized the political debate and

made it more difficult to reach an agreement over which policy to pursue.

At the peak of its powers, the Anti-rent party faced its own paradox: solve the

rent crisis and eliminate its reason for existence. The Whig and Democratic

politicians who used the rent crisis for their own partisan ends faced much the

same problem: advocating a solution to the rent crisis obtained the support of

the anti-renters, solving the problem destroyed the reason for their support.

In the end, the politicians put most of their weight behind a legal challenge

to the titles of the landlords, a policy that perceptive observers had noted

early in the 1840s would only succeed if the original titles were defective and

the legislature could convince the courts to reverse the blessing that the

state had earlier given to all titles of long standing in the “Quiet Title”

legislation of 1788. Active anti-rent agitation died down in the late 1840s as

a series of court cases went forward. In the 1850s, as the court cases made

their way to the New York Court of Appeals, it became clear that the state

could not find the titles defective. The tenants were stuck. In the end, the

rent crisis ended with the eviction of those tenants who refused to pay back

rents, the transfer of fee simple title to tenants willing to pay the prices

asked by the landlords, or in a few properties on Rennselaerwyck, annual rents

that persist to this day.

This is a wonderful episode in the history of American political and legal

economic history, and McCurdy has done a marvelous job of telling the story in

all its detail.

John Wallis is a Professor of Economics at the University of Maryland and a

Research Associate at the NBER. His recent research interests include the

development of state constitutions (his web site on state constitutional texts

can be found at http://www.bsos.umd.edu/constitution) and the development of

economic institutions, development policies, and infrastructure investment in

the early nineteenth-century United States. Recent publications include “Market

Augmenting Government? States and Corporations in Nineteenth Century America,”

in Omar Azfar and Charles Cadwell, editors, Market Augmenting Government:

The Institutional Foundations for Prosperity, University of Michigan Press,

2002 (forthcoming); “What Caused the Crisis of 1839?” NBER Working Paper, HO

133; and “The Property Tax as a Coordinating Device: Financing Indiana’s

Mammoth Internal Improvement System, 1835 to 1842,” NBER Working Paper, HO 136.

Subject(s):Government, Law and Regulation, Public Finance
Geographic Area(s):North America
Time Period(s):19th Century