USA > New Jersey > A civil and political history of New Jersey: embracing a compendious history of the state, from its early discover and settlement by Europeans, brought down to the present time > Part 12
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SUBJUGATION OF NEW NETHERLAND.
English government conveying to its subjects the territory occu- pied by the Dutch, and in this manner the English right was asserted and reasserted. The English colonists also continued to maintain, that of right the country belonged to them or their nation : and besides these declarations, they attempted at various times to secure possession of different portions. In some of these instances their efforts were successful, in others they failed, but in either case, the claim was maintained. The Dutch were not allowed to establish a title by long and peaceable possession.
To sum up the case, the Dutch had no right as discoverers of the country. They acquired by purchase from the atives only a part of the country, and the conveyances obtained were imperfect and doubtful, and if these conveyances had been full and good, and had embraced the whole of the territory, still, the principal right which was held by the English, remained untouched. Finally, their possession of the country was interrupted and incomplete, and therefore was not sufficient to establish a title. 16
If these conclusions are well founded, they will serve, if not completely to justify the conduct of Charles, the English King, yet at least to absolve him from the charge of "flagrant injustice and usurpation."
Yet, if the claims of the Dutch to the country of New Nether- land were not such as to secure to them its permanent and full possession and control, still, these settlers were not destitute of equitable rights. They had subdued and cultivated the lands, they had navigated the streams, and erected dwellings. They had prepared a home for civilized man. And they were allowed to continue in its enjoyment. No one was dispossessed of his lands or turned from his dwelling, the people remained in the posses- sion of their property of every description. The only change was
" The principal circumstances that may be urged in support of the Dutch claim, are the implied acknowledgment in their favor, contained in the colonial arrangement respecting boundaries, made in 1650; and the treaty afterwards concluded between the republics of England and Holland. But the colonial agreement was not finally ratified in England. And the provisions of the later treaty were extended to the colonies rather by inference, than express stipula- tion, nor could these provisions if extending to the colonies, be fairly construed as determining any questions of title.
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SUBJUGATION OF NEW NETHERLAND.
one that many of the colonists themselves desired, and which was probably beneficial to all.
But the reduction of the country was not quietly submitted to by the Dutch; a general war between England and Holland was the consequence. This circumstance however, made no alteration in the course of affairs in the province ; this was not made the theatre of war, and at the conclusion of hostilities, it was left in the hands of the English.
The agreement which had been concluded between the English King, and his brother, the Duke of York, was now to be carried out into full effect; the latter had been invested by the terms of his grant, with full authority both as owner and ruler, within the country to be subdued, and the subjection was now completed. In pursuance of the plan, Nicholls, who had been appointed to the government of the country under the Duke, assumed the direction of affairs.
But, previous to the actual investiture of the Duke of York, a division of the country had been made. Not long after the recep- tion of the grant from the King, and before he had been put in possession, the Duke conveyed a portion of the territory to two other individuals, Lord Berkely and Sir George Carteret. Dif- ferent motives have been assigned as leading to this grant from the Duke: no other is apparent, than a desire to give expression to royal approbation, the grantees, at the time, being high in favor, as well as in place, at the English Court. 17 The conveyance to Berkely and Carteret was made by an instrument in form as follows :
"This Indenture, made the three-and-twentieth day of June, in the sixteenth year of the Raigne of our Sovreign Lord Charles the Second, by the Grace of God of England, Scotland, France, and Ireland, King, Defender of the Faith-Anno Domine 1664. Be- tween his Royal Highness James Duke of York and Albany, Earl of Ulster, Lord High Admiral of England and Ireland, Constable of Dover Castle, Lord Warden of the Cinque Ports, and Governor
" See Nicholls' letter to the Duke of York. The statements there made in reference to the causes of the grant to Berkely and Carteret, wear but a doubt- ful appearance.
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SUBJUGATION OF NEW NETHERLAND.
of Portsmouth, of the one part, John Lord Berkeley, Baron of Stratton, and one of his Majestie's most honorable Privy Council, and Sir George Carteret of Sattrum in the county of Devon, Knight, and one of his Majestie's most honorable Privy Council, of the other part, Witnesseth that said James Duke of York, for and in consideration of the sum of ten shillings of lawful money of England, to him in hand paid, by these presents doth bargain and sell unto the said John Lord Berkeley and Sir George Carteret, all that tract of land adjacent to New England, and lying and being to the westward of Long Island. Bounded on the east part by the " main sea, and part by Hudson's River, and hath upon the west Delaware Bay or River, and extendeth southward to the main ocean as far as Cape May at the mouth of Delaware Bay, and to the northward as far as the northermost branch of said Bay or River of Delaware, which is in forty-one degrees and forty minutes of latitude, and worketh over thence in a straight line to Hudson's River-which said tract of land is hereafter to be called by the name, or names of NOVA CESAREA, or NEW JERSEY."
The name was given in honor of Carteret, on account of his spirited defence of the Island of Jersey, at the time he was Governor of that Island.
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NEW JERSEY.
THE ESTABLISHMENT OF GOVERNMENT.
IT has been seen that the territory now 'recovered by the English, had been granted by the King, to his brother, the Duke of .York. The right of the King of England to grant out new lands to his subjects, could not be called into question ; it was one of the prerogatives of the Crown which the laws of the realm had yet left untouched. The country now granted, was given as Crown lands ; as territory held by the Sovereign by right of descent; the possession of the country by the Dutch at the time of the grant, was in no wise regarded, they being considered as mere intruders upon the rights of others. But the grant was a conveyance of the powers of government as well as of the rights of property. The institution of government in new countries under British authority, was effected in different modes. Power was sometimes simply delegated by the King to certain individuals to act as his representatives, and these individuals were entrusted with such an amount of authority, as the Sovereign might choose to entrust to them, only that it could not exceed his own, in kind or degree. In these cases the power of government was entirely unconnected with any thing else, and its duration was determined by the discretion or will of the original grantor. Such were royal governments. In some cases charters were granted which gave authority for the institution and perpetuation of government by the acts of the people, according to such forms as were prescribed in the charter, or as they should adopt. In other instances power was given in connexion with property; portions of territory were granted,
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THE ESTABLISHMENT OF GOVERNMENT.
1
and the grantecs were invested at the same time with authority to govern within the limits assigned to them, but subject always to al- legiance to the Crown, and sometimes to farther limitations. These were proprietary governments. In such governments, unless special agreements were made to the contrary, the duration and transmis- sion of authority were governed by such regulations as applied to the property with which it was connected. No certain period was prescribed for its continuance and it was made transferable like property, to heirs, and also to assigns. The authority granted to the Duke of York may be considered as essentially of the pro- prietary character. The country was granted to him with all "the rents, revenues, and profits of the premises, and all our estate, right, title, and interest therein, and we do farther grant unto the said James the Duke of York, his heirs, deputies, agents, commissioners, and assigns, full and absolute power and authority to correct, punish, pardon, govern, and rule, all such person or persons as shall from time to time adventure themselves into any of the parts or places aforesaid, and to establish such laws, orders, and ordinances as may be thought necessary ; so that they be not contrary to, but as near as conveniently may be, agreeable to the laws, statutes, and govern- ment, of the realm of England." The grant from the Duke of York to Berkely and Carteret, was of a similar character. In the instrument of transfer to them, the powers of government were not specifically given, but there was a general declaration that the grant was made to them, their heirs, and assigns, "in as full and ample a manner" as it had been received by the Duke himself, and in the absence of any reservation, all the incidents connected · with the possession, would be fairly included.
Berkely and Carteret thus became rulers as well as owners of the country. They also, from the nature of the case, obtained the privilege of making a transfer to others; they might convey their powers and their interests to any other person, or to any number of persons. By thus placing political au- thority in connection with property, and making it subject to similar incidents, the allegiance and obedience of subjects were made transferable at the same time, and in the same modes as the titles to land. Government was rendered a thing that might be conveyed by bargain and sale, it might be passed over from hand
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THE ESTABLISHMENT OF GOVERNMENT.
to hand, in the ordinary processes used in the management of mercantile affairs. This principle of action was not new, it ex- isted in all the proprietary governments that had been established or projected in America, and was sanctioned by ancient usage. It had been introduced at a time when the rights and privileges of subjects were but little understood, or but slightly regarded, and such was partly the case at the time of the first institution of government in America.
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The haughty Elizabeth held the reins of authority with a rigid grasp, and seldom yielded any thing to the wishes or the interests of her people, unless it was unsafe to refuse. James, her succes- sor, though not lacking in general knowledge, was yet so deficient in practical wisdom as to render him unable to determine what he should grant, and what he should refuse. The second Charles was resolved to grant nothing at all, and his. troubled reign was but a struggle to retain the powers which his predecessors had ex- ercised, as well as the abuses they had practised, and his efforts terminated in the loss of his crown, and his life.
The second Charles had seen much of adversity, and had come to the throne at a time when the marks of the political convulsions which had occurred, were still visible around him. It was a period abounding in lessons for rulers and kings. But Charles had never been apt in learning the lessons of wisdom, and if any of those around him were more gifted than himself, they may have found it more prudent to conceal, than to exhibit their advantage.
But, although the mode in which the proprietors of New Jersey had become possessed of authority, was not in accordance with liberal and enlightened principles of government, they still, so far as is apparent, had no design or desire to use it improperly. On the contrary, there was exhibited in their measures a degree of liberality as well as sagacity. They manifested an acquaintance with the condition and the opinions of the people, in England and America, and evinced both ability and willingness to adapt their action to the condition of affairs existing at the time. In a severe judgment indeed, a doubt might be started, whether the course of policy pursued by the proprietors, was not adopted from necessity, rather than inclination; but even such a doubt, if it abated some- what from a claim to liberality, would entitle them to higher praise, for discernment.
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THE ESTABLISHMENT OF GOVERNMENT.
The institution of government at that period, required a cautious and a skilful hand. - There had been a long period of agitation, during which the civil and political institutions of the realm of England had been shaken to their centre, and although the action had now subsided, the consequences were still apparent. It had been a period too, of eager inquiry as well as of determined action. The minds of men had been excited to a high degree of activity ; the true principles of liberty had been brought to light, and been wide- ly disseminated, and had taken a deep and firm hold in the common mind. Their growth might be checked, it had been checked, but still these principles had not been deprived of their vitality or force. If monarchy had been restored as the only ap- parent means of bringing settlement and quiet to the kingdom, yet the King was no longer acknowledged as a master, to control at his pleasure the destinies of his people. His powers were now to be exercised, and could only be safely exercised, with a view to the rights and liberties of the subject.
In the American province the state of opinion and feeling was even farther advanced than in the parent country. Many of the colonies had been settled by persons whose principal object had been the fuller enjoyment of liberty, civil and religious. The uil- dertaking indeed had not, in all instances, been carried on in the spirit of the original object, exiles for conscience sake had become oppressors and persecutors ; the garment of the Puritan, had be- come stained with the blood of the Quaker. But still, the pre- vailing tendency, the general movement, on both sides of the Atlantic, was favorable to popular freedom. Under these circum- stances the interest of the founders of States became obvious. whatever other inducements they might.offer, their object would be most effectually promoted by making provision for securing to the people the full enjoyment of civil and religious privileges and rights. This, the proprietors of New Jersey appeared to perceive, and to understand.
Not long after the reception of their patent, measures were devised for peopling and governing the country. The proprietors published an instrument which may not improperly be termed, a Constitution, being a fundamental law, according to which the government of the province was to be established and conducted.
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THE ESTABLISIIMENT OF GOVERNMENT.
This instrument was entitled "The Concession and Agreement of the Lords Proprietors of the Province of New Caesarea, or New Jersey, to, and with all and every of the adventurers, and all such as shall settle or plant there." It was dated February 10th, 1664.1
This scheme of government is entitled to careful attention, not only on account of its own character, but also from its particular position in the history of New Jersey.
It provided that all persons who are, or should become subjects of the King of England, and swear or subscribe allegiance to the King, and faithfulness to the Lords Proprietors, should be ad- mitted to plant, and to become freemen of the province.
That the people should be secured in the enjoyment of property; no taxes of any description were to be imposed, except such as should be ordered by the General Assembly of the province. Full toleration in religion was also allowed, no person should be in any ways molested, punished, disquieted, or called into question for any difference in opinion or practice in matters of religious concernment, who should not actually disturb the peace of the province, but that all and every of such person or persons, might from time to time, and at all times, freely and fully have and enjoy his and their judgments and consciences, in matters of religion, they behaving themselves peaceably and quietly, and not using their liberty to licentiousness, nor to the civil injury or outward disturbance of others; any law, statute, or clause contained or to be continued, usage or custom of the realm of England, to the contrary thereof, in any wise notwithstanding.2
The government of the province was to be exercised by a Governor and Council and General Assembly.
The Governor was to receive his appointment from the Pro- prietors. The Council should be selected by the Governor; he
1 Grants and Concessions compiled by Leaming and Spicer, p. 12.
And that the right of advowson granted in the patent to the proprietors, might not be exercised by their heirs or assigns so as to infringe upon liberty of conscience, the General Assembly of the province was empowered to appoint such, and so many ministers as they might think fit, and establish their main- tainance, giving liberty besides to any person or persons, to keep and maintain what preacher or ministers they should choose.
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THE ESTABLISHMENT OF GOVERNMENT.
might make choice of six Councellors at least, or twelve at most, or any even number between six and twelve.
The General Assembly formed the legislative authority of the province. It was composed of the Governor and Council and a representative body chosen by the people in manner as follows: So soon as the Proprietor's commission should be received in the province, a writ should be issued by the Governor for the election of deputies ; they were to be chosen by such of the inhabitants as were freemen or chief agents of others; the deputies chosen to be twelve in number. But so soon as parishes or other divi- sions of the province should be made, then the inhabitants or freeholders of the several divisions should, by writ (which it was promised should be issued in time) annually meet on the first day of January and choose freeholders for each respective division, to be deputies or representatives of the same, which body of repre- sentatives, or a major part of them, should, with the Governor and Council, form the General Assembly of the province. The Governor or his deputy should be present and preside in the Assembly, unless these officers should refuse, in which case the Assembly might appoint its own president for the time.
The General Assembly were empowered to appoint the times for their own meetings and adjournments, and to determine the number of their quorum, provided that such number should not be less than one-third of the whole number. They were authorized to enact all such laws and acts as should be necessary for the well government of the province, provided that such laws and acts should be consonant to reason, and as near as might be, agreeable to the laws and customs of the realm of England, and not contrary to the interest of the Lords Proprietors, or contrary to the conces- sions. Laws were to remain in force for one year (unless con- tradicted by the Lords Proprietors,) within which time they were to be presented to the Proprietors for approval, and when con- firmned, were to be in force until repealed, or until they should expire by their own limitation. The General Assembly had power to constitute all courts, and to determine the limits, powers and jurisdictions of the same, and also the offices, and the number of officers belonging to each court, with their respective salaries, fees and perquisites, with their appellations and dignities and the
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THE ESTABLISHMENT OF GOVERNMENT.
· penalties that should be due for the breach of their several and respective duties, and trusts.
The Assembly might lay equal taxes and assessments upon all lands (excepting the lands of the Lords Proprietors before settling) or upon persons within the several divisions, as necessity might require, and in such manner as should seem most equal and easy to the inhabitants.
Enactments might be made for the defence of the province, providing for the erection of forts, castles, and other places of strength, and defence, and also to create military companies, and to make war with all Indians, strangers and foreigners, as cause should arise.
The Assembly might pass laws for the naturalization of strangers as also for the division of the province into parishes or districts, and for the apportionment of land to settlers, in accordance with the directions given by the Proprietors. . Acts were to be passed providing for the maintainance and support of the Governor, and for defraying all the necessary charges of the government.
The Executive department of the government was committed to the Governor and Council. The Governor might appoint a Secretary of the province and also a Surveyor General, in case these officers were not appointed by the Proprietors themselves. By the joint action of the Governor and Council, a Deputy Gover- nor might be appointed, who should continue in office during the absence of the Governor, or in case of his death, or removal, until farther orders should be given.
In case of the death or removal of any member of the Repre- sentative body, the Governor and Council were to issue summons by writ to the respective divisions or divisions commanding the freeholders to elect others in their stead. They should see that all courts established by the laws of the General Assembly, and all officers, civil and military, should execute their duties, accord- ing to the laws in force. They were to nominate and conmis- sionate the. officers belonging to the several courts, (the offices, with the duties appertaining to each, being determined by the laws of the Assembly) but frecholders only were to be appointed to these offices, except with the special assent of the General Assem- bly. In like manner they were also to nominate and commis- sionate all military officers.
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THE ESTABLISHMENT OF GOVERNMENT.
The Governor, with the advice of his Council, or without, in - case of immediate danger, was to collect and command the military forces of the province, and to suppress all rebellions and mutinies, as well by sea, as by land.
The Governor and Council might grant a reprieve to criminals after condemnation, but the power of final pardon was reserved to the Lords Proprietors.
Beside the positive grant allowing to the General Assembly the power of imposing taxes, a prohibitory article forbade the exercise of this power by the Governor and Council; they were not to impose nor suffer to be imposed, any tax, custom, subsidy, tollage, assessment, or any other duty whatsoever, upon any color or pre- tence, other than what should be imposed by the authority and consent of the General Assembly.
Full provision was made in the concessions in relation to the privileges to be granted to planters; the mode of granting lands, and the proportions to be assigned to settlers, according to the time of their coming, and the number and capacity of the persons, were distinctly set forth.3
By a general provision, it was made lawful for the representa- tives of the freeholders within the province, to make any address to the Lords Proprietors touching the Governor and Council or any of them, or concerning any grievances whatsoever or any other thing they might desire, without the consent of the Governor and Council or any of them.
Such was the form of government provided in the concessions. It embodied many of the principles which belong to the most · liberal institutions. It gave entire exemption to the people from all taxation except such as their representatives should assent to, and as a farther security of property, it gave to the Assembly the full control over all the expenditures of government.
Freedom of conscience and worship was secured to every one who should conduct himself as a peaceable citizen. Justice was to be administered by tribunals erected under popular authority, and an additional security against the arbitrary exercise of power was given by the concession of an unlimited privilege of appeal or petition.
'See Grants and Concessions from p. 12 to 26.
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THE ESTABLISHMENT OF GOVERNMENT.
Had the plan of the concessions been fully pursued, the govern- ment established thereby would have nearly approached to the popu- lar character, at least in regard to the legislative department. By the increase of numbers in the representative branch of the General Assembly, the popular element would have finally acquired a de- gree of strength that must have given it a controlling influence.4 But, as will presently be seen, the actual working of the plan did not entirely agree with its general theory.
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