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 16
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After the division above mentioned had been effected, Byl- linge and his trustees reconveyed the share that had belonged to Fenwick, giving it to Eldridge and Warner in fee, and they were
· Whitehead, p. 67.
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thus admitted into the number of proprietors." The proceedings of his lessees were complained of by Fenwick, and he afterwards directly accused them, as well as Penn and his associates, of having concerted a plan to deprive him of his property and rights.« This charge can hardly be sustained, yet it must be confessed that the appearances were such as to expose the parties to unfavorable imputations. Eldridge and . Warner undoubtedly obtained an ad- · vantage which however, they may never have designed to use, and may not have used, to the injury of Fenwick.9
As an expedient for .conducting the business of the province previous to the establishment of the projected government, provi- sional authority was given to . three individuals, who were to act on behalf of the proprietors. Two of these persons, Richard, Hartshorne, and Richard Guy, were. residents in East Jersey, and the other, James Wasse, was sent specially from England. They were Commissioned on the 18th of August, 1676, by Byllinge and his trustees, in conjunction with Eldridge and War- ner.10 Full authority was given to them to: act for their con- stituents, according to certain instructions. They were first to endeavour to remove the difficulties arising from the presence and the claims of Fenwick.11 They were to get a meeting with him and his people, show the deed of partition with Carteret, and ex- plain the proceedings that had taken place between the assignees of Byllinge, and Eldridge and Warner, and make a proposal for a general concurrence, so that the lands that had been purchased, might be divided according to the original agreement between
" Mickle's Reminescences. p. 30.
. See Fenwick's Remonstrance and Declaration in Johnson's Salem, p. 38.
' The acts of Eldridge and Warner arc hardly accounted for by the ostensi- ble reason ; the re-conveyance to them, in fee, completely cut off the reversiona- ty claim of Fenwick; but on the other hand the proceedings of Fenwick in entering the territory and selling lands as his own, after his conveyance, is not easily explained. The intentions of all these parties were probably just, but their business transactions became strangely confused. There must have been an equitable intent in their agreemen tthat is not apparent in its general aspect. Smith's New Jersey, p. 83.
" At this time Fenwick was still in the province, the order of Governor An- dross for his arrest, not being given for some months afterwards.
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Fenwick and Byllinge. But if the proffer of amity should not be accepted, then the true situation of Fenwick might be made known; the country might be informed that he had no power whatever over the persons or estates of-ahry, having no authority to act, without the consent of Eldridge and Warner.
`The .Commissioners were authorized to purchase and take. up lands, ninety parts for the use of William Penn, Gawen Lawrie, and Nicholas Lucas, and ten parts for John Eldridge and Edmund *Warner .:! 2 .
The efforts made by the Commissioners to effect an adjustment with the settlers at Silent, were not successful ; Fenwick con- - tinued torassert his rights a's proprietor, both in regard to property ¿and government, The declaration which the Commissioners were authorized to make was therefore published in the province, and an attempt was made to survey the lands that had been previously pur- chased; Richard Hancock, . who had been previously engaged in this service annider the direction of Fenwick, being now em- ployed by the Commissioners, " But the authority of these Com- missioners was soon superseded by the introduction and establish- . ment of the Proprietary, government.
The power to institute government was one of the proprietary rights which was supposed to be equally disposable as property in land, and it had thus been conveyed to the present possessors of West New Jersey. Whatever objections might be made to the mode of transmission, none can be brought against the views or designs of the holders in regard to its use. The exercise of government indeed, had been a principal aim, but they had desired it, as means of security, and not of injustice; it had been sought for the purpose of shielding themselves and others, from oppression and wrong. It was not to be used as an instrument for their own elevation, but, as they declared, that · they might " lay a foundation for after ages, to understand their liberty as men and as christians, that they may not be brought into bondage but by their own consent." The original scheme
n This was the proportion originally agreed upon between Fenwick and Byllinge. Nine parts to the latter, and one to the former.
13 Johnson's Salem, p. 39.
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was devised by Penn and his immediate co-adjutors, but it was afterwards submitted to others as they became concerned in the - province, and received their approval and sanction: It was first . promulgated . on the 3d .of March, 1676. It-was called "The Concessions and Agreements of the Proprietors, Freeholders, and Inhabitants, of the Province of West New Jersey', in America." "The concessions may be considered under two separate aspects ; · first, those general fundamental principles or conditions which formed the basis of government, and marked out its sphere, and secondly, those particular provisions by which the government itself was established, and its operations directed.
It was declared that the fundamental rights and privileges granted in the instrument, were to be regarded, and to continue, as the foundation of government; that they were; fixed and- unalterable- not to be revoked or changed at any time by the legislative authority, and that any person or persons who . should- designedly and wilfully excite a Legislative Assembly to any thing subversive of these fundamentals, should, if it be suffi- ciently proven against him, be proceeded against, as a traitor to the government. These. "fundamentals" were to be read at the beginning and dissolving of each General Assembly, and were also to be read "in a solemn manner," four times in a year in every hall of justice within the province.
. It was laid down in these fundamental conditions, that no man or number of men upon earth hath power or authority to rule over men's consciences in religious matters, and that no person or persons within the province, should be in any wise, or on any pretence, called in question or punished in his person, estate, or privilege, on account of his opinion, judgment, faith, or worship toward God in matters of religion.
That no proprietor, freeholder, or inhabitant of the province should be deprived or condemned of life, limb, liberty, or estate, or hurt in his privileges, freedoms, or franchises, without due trial and judgment passed by twelve good and lawful men of his neighbourhood.
That no person should be arrested or imprisoned (except in criminal and treasonable cases,) until personal summons setting forth the cause, should have been given, and sufficient time allowed
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to make answer, and after trial, if any person condemned to im- prisonment should solemnly declare and aver that he hath not any further goods or estate, and should bring three other persons ." of_honest reputation," who should declare in open court, that they believed the person condemned to have nothing wherewith to pay, he should be discharged from imprisonment.
That in all public courts of justice for the trial of causes, civil and criminal, all the inhabitants of the province might freely come into, and attend courts, and hear and be present, "that justice may not be done in a corner, nor in any covert manner, being intended and resolved, by the help of the Lord, and by these concessions- and fundamentals, that all and every person and persons inhabit- . ing this province, shall, as far as in us lies,' be free from oppres ;. .
. sion and slavery."
. The principles set forth in these declarations and provisions, . were of the utmost importance; and their promulgation as funda- mental conditions manifested a high and just sense of the value . of civil and religious liberty, and true wisdom in securing it to every individual.
The executive authority of the government as established by the concessions, was to be lodged in the hands of Commissioners. These were to be appointed at first by-the proprietors or a major part of theln. They were to have power for the time, to purchase and direct the division of all lands heretofore purchased, or that . should be hereafter purchased, according to the terms, and in the manner prescribed. The territories were to be divided into one hundred parts, or proprieties, and these subdivided into tenths, each one containing ten proprietics.
But upon further settlement of the province the Commissioners were to be chosen by the resident proprietors, freeholders, and inhabitants; they were to assemble on the 25th of March, 1680, and upon the same day of each year afterwards, at some public place, and elect by ballot, ten "honest and able men fit for govern- ment," who were to officiate as Commissioners for the year ensuing, and until others should be elected and appointed. The Commissioners so chosen were empowered to govern and order the affairs of the province according to the concessions, until a General Assembly should be chosen; after that time, the choice
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and appointment of Commissioners devolved upon the General Assembly, but the number should continue the same.
The Commissioners were to superintend the execution of the laws, to see that the officers of the several courts established by law, performed their respective duties, and in case of delinquency, or an abuse of power, they might displace or punish the offender, as the nature of the offence might require. They might suspend the execution of any sentence passed by the courts, until the next meeting of the General Assembly. 14 They were to see that all lands that had been surveyed, and held and possessed for seven years, should not be subject to any re-survey, or alterations of bounds. They were to do all other things that might conduce to the safety, peace and well government of the province. But they were not to impose or suffer to be imposed, any tax, custom, subsidy, tollage, or assessment, upon any colour or pretence, other than such as should be imposed by the authority and consent of the General Assembly.
The legislative authority of the province was extremely simple in its constitution. So soon as the contemplated divisions in the province should be made, the proprietors, freeholders and inhabi- tants in each, were to meet on the 1st day of October in cach and every year, and choose one proprietor or freeholder for each re- spective propriety in the province, the whole number of proprie- ties being one hundred, which body of deputies consisting of one hundred persons so chosen, should constitute the supreme Assem- bly, for one year. They were to meet in one house, were em- powered to appoint their own times of meetings and adjournments from time to time, within the year, as they might think fit. They might determine the number of their own quorum, so that it be not less than one-half of the whole number. The yotes of two- thirds of the members, either of the quorum or of the same pro- portion, if a larger number than a quorum were present, were to determine in all cases coming before the body.
The Assembly had power to enact all laws necessary to the well government of the province, provided that such enactments
"To power of final power was lodged in the General Assembly.
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·should be, as near as might be, agreeable to the laws and customs of England. To order and prescribe as to the establishment of the several proprietary divisions, and to give names to each. To lay equal taxes and assessments, and to raise monies upon all lands or persons within the province for the support of govern- ment, apportioning the amount among the several divisions, in such a manner as should seem equal and just. It was also the province of the Assembly to constitute all courts, to prescribe the powers and jurisdictions of the same, as also the several officers belonging to each court, and their term of office, (which term how- ever should not exceed one year, or two at the most,) with the salaries, fees and perquisites attached to each. But it was pre- scribed that in the courts, all civil and criminal causes should be decided by the verdict of twelve men of the neighbourhood, and that in every court, there should be three Justices or Commis- sioners who should sit with the twelve men of the neighbourhood, to assist them in point of law, but that the Justices should pro- nounce such judgement as they should receive from the said twelve men, in whom only it was said "the judgement resides." No person should be compelled to fee any attorney or counsellor to . plead his cause, but every one should be at liberty to plead his own cause, if he should choose.
Chief Justices, embassadors, and all commissioners of the public seals and treasury, were to be chosen by the Assembly, but justices and constables, by the people.
.But the Legislature was liable to several restrictions ; beside the . restraints that were contained in the fundamental conditions, there were others, to be applied to the several members. The electors .. were to give to their respective deputies or trustees, their instructions at large setting forth their grievances or wishes, and the deputies were to enter into a covenant under hand and seal, to engage to do nothing but what should- tend to the service and behoof of the peo-
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.- ple, and in case of a breach of the covenant the members might be questioned in that or the next Assembly, by any of the electors: The compensation of the- deputies was not to be determined by themselves when met in Assembly, but was prescribed in advance. Each one was to be allowed one shilling per day during the time of sitting, that thereby, it was said " he might be known as a ser-
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vant of the people;" and this allowance of one shilling per day was to be paid to each member by the proprietary division that had elected him.
Besides these general provisions, there were others, directing the course of proceeding in particular cases. One of these applied to the manner of freeing the lands from the Indian claims. When any land was to be taken up, before it should be surveyed, the Commissioners, or a major part of them were to appoint persons to visit the natives, acquaint them with the design and agree upon some compensation, and this agreement was to be taken in writing under their hands or seals, or in some other public manner. But no person should take up lands but by order from the Commis- sioners. It was also provided that in case any injury should be done to the natives in their persons or property, the Commis- sioners should take care that justice should be done, and plenary satisfaction be given, according to the nature of the case; and in all trials wherein the natives were concerned, the trial should be by six of the inhabitants and the same number of natives. Very full regulations were made in relation to registering deeds and other conveyances.
The purchasers of land were to pay one penny and a half an acre, to the Proprietors for what should be laid out in towns, and one penny the acre for what should be laid out elsewhere.
To these "concessions and agreements," one hundred and fifty- one names were subscribed.
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In many respects the system of government just noticed is en- titled to special attention. It was the first commencement of Quaker legislation, and may be truly considered as exhibiting something of the character and temper of the people from whom it proceeded. The most searching and critical inquirer cannot but confess, that with some defects, it yet possessed in its general features much that all must approve and commend. It was marked by the greatest liberality. The framers, as a proprietary body, retained no authority for themselves. "We put the power in the people," they said, and such was truly the case. No authority was to exist except such as was established by popular action and even this authority was to be cautiously given. No further restraints were imposed or allowed than were necessary for the 23
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maintainance of order, and it may be, that at some points the boundary of government was so far extended, or lowered, as almost to jeopardize its safety. But the situation of the framers at the time rendered them more alive to the evils of oppression, than to the dangers of disorder. The great division of the executive power has been made a ground of objection; it has been imagined that a body composed of so large a number of members, and hold- ing office for so short a period, would be incapable of harmonious and vigorous action.15 In a general view, such an opinion may be perfectly just. But it may yet be considered that in this particu- lar case, the duties assigned to the executive body were not such as were calculated to create disunion, or to call for much prompti- tude or energy in action.
In the constitution of the legislative authority, the popular princi- ple was carried to as great an extent as was possible under a government of the representative form. Perhaps it was carried to a greater extent than, under ordinary circumstances, would be considered necessary, or even advisable, but the experience of the projectors had impressed upon them the importance of making the fullest provision against an excess or abuse of power.
The provisions in relation to the judicial department were pro- bably most liable to question ; the term allowed for a continuance in office was scarcely sufficient to admit of a perfect acquaintance with the duties to be performed; with inexperienced judges, with juries authorized to determine the law as well as the facts, and without a permanent bar, the administration of justice could hardly be steadily and firmly conducted.
But notwithstanding the imperfections which it certainly con- tained, this instrument of government was in advance of any existing at the time ; and in fact, in many particulars, was equal to any that has ever been framed. If somewhat lacking in vigor, it gave the fullest security to freedom; it gave free room and scope for individual effort and action, and the mind of man was com- pletely enfranchised. The person of every citizen was made safe and property was placed entirely beyond the reach of arbitrary exaction.
" Gordon's New Jersey, p. 37.
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The differences between the West Jersey government and that existing at the same time in the eastern portion of the province, were important and obvious. In the latter the executive authority was entirely independent of the people. The legislative authority was also independent in part; the Governor and Council formed a part of the General Assembly, and being a distinct house had equal power with the popular branch. The Governor and Council had also the important authority of convening and proroguing the General Assembly; they had power also for the establishment of certain courts, and for the appointment of officers. In these, and other particulars, the government of East New Jersey was strongly distinguished from that of the western province. But the two cases were also different. The government of the eastern portion had emanated from individuals who were among the rulers of the English realm, and their work could hardly be expected fully to reflect the popular feeling, and especially that feeling which an experience of actual oppression, had excited. Beside this, the discontents and disturbances that had occurred in the province had led to a change in the government, and the introduction of more rigid conditions than had at first been imposed. Probably the government of the eastern portion would not have been ac- , cepted in the western, and it is equally probable, that the plan of the latter, would have been found, at the time, not suited to the former.
CHAPTER XI.
PROCEEDINGS IN WEST NEW JERSEY.
IN accordance with the design of the concessions, Commission- ers were appointed by the proprietors to take charge of affairs in the province, and direct the proceedings preparatory to the settlement of the country, and the introduction of the projected government.' In the year 1677 they departed for the province. "They were ac- companied by a large number of settlers, most of them being mem- bers of the Society of Friends. The company arrived at New Castle on the 16th of August, and soon afterwards landed at the ' mouth of the Narriticon or Raccoon Creek, at a place where a few Swedes had settled and erected some dwellings.2 The Commis- sioners themselves, had landed at another point, being desirous to visit New York and wait on Governor Andross. This visit was probably intended as a measure of policy in view of the violence which had been committed by Andross in the seizure and deten- tion of Fenwick.3 It could have been no part of the design of the Commissioners to make any concession acknowledging the claim of Andross to authority in New Jersey; but they may have sup- posed that a frank explanation of their objects might conciliate the Governor, and ward off difficulty in future, and they were willing to pay respect to the Duke's commission.4 But it soon became ap- parent that something more than "respect" was demanded. So soon as the Commissioners had presented themselves and made
There were nine commissioners now appointed-Thomas Olive, Robert Stacy, Benjamin Scott, Daniel Wills, John Kinsey, John Penford, Richard Guy, Jo- seph Helmsley, and Thomas Foulke.
" This was one of the ancient Swedish settlements on the Delaware, it was near the site of the present town of Swedesborough.
3 At this time Fenwick was detained as a prisoner in New York.
' Smith's New Jersey.
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known their intentions to Andross, he demanded, whether they had any warrant from the Duke of York in relation to the proposed at- tempt. They had none to produce ; but they replied to the demand by setting forth at length the claims of the proprietors, showing that a conveyance had been made to them by Lord Berkely, one of the grantees of the Duke, and that this conveyance was believed to be sufficient and full, both in respect to property and authority in the province. But all this was little regarded by Andross. He insisted that his commission extended over the whole of the country, and declared that should he surrender it, without an order from his master, it would be at his peril, though he expressed a willingness to yield it up, without further delay, if they could show but "a line or two from the Duke."
· The Commissioners attempted a remonstrance, but they were presently silenced by Andross, who pointed with some significance to his sword. In this manner an intimation was given of the Governor's determination to maintain the authority he claimed, and to do this, should it be necessary, by deeds, as well as by words. Further remonstrance or resistance seemed useless. But Andross finally proposed in order to enable the Commissioners to proceed in their purpose, that they should take a warrant from him, until a further agreement should be made. This proposal was at length accepted, the Commissioners preferring to proceed under such authority, rather than to incur the hazard of being wholly frustrated in their plans.5 These proceedings, together with the measures that had been previously taken in reference to Fenwick, were entirely sufficient to explain the intentions of the Duke of York in granting a commission to Andross within the bounds of New Jersey. It was clear, that notwithstanding the grants he had made, he was resolved to claim and to exercise au- thority, and the instrument he had chosen, was entirely disposed to second his wishes and designs.
Directly after the occurrences above mentioned, the Commis- sioners joined the body of settlers and proceeded in the discharge of the duties of their trust. They purchased from the natives three
' It is stated that they took Magistrates' Commissions from Andross.
Smith's New Jersey, p. 33.
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several portions of lands upon the Delaware, the whole reach- ing from the Assunpink on the north, to Oldman's Creek on the south; at the latter boundary they were brought to the borders of the territory that had already been purchased by Fenwick.6
At an early period the West Jersey Proprietors had entered into a contract or agreement with five individuals of the county of York, in England. In pursuance of this agreement, an article was in- serted in the proprietary concessions, directing, that the Commis- sioners should grant unto the persons in question, or their lawful representatives, the privilege of choosing any one of the tenth parts or shares that should first be laid out. These persons or their representatives, were also to have privileges for building a town, and were to be allowed the liberty of choosing their own magistrates and officers, for executing the laws according to the concessions, within the said town.
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