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 17
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· At a subsequent period, a company of persons in London pur- chased a patent for another tenth or share. Among the individuals who were now in the province were persons authorized to act on behalf of these companies, and selections of lands were accord- ingly made. The representatives of the Yorkshire interest, Helmesly, Emley and Stacy, made choice of the land extending from the Rankokus to the Falls of Delaware, and this portion was accordingly assigned to them by the Commissioners as the first tenth. The agents of the London Company, Penford, Olive, Wills and Scott, chose a portion of territory lower down the Delaware, in the vicinity of Arwamus and Timber Creek; but final- ly an agreement was entered into by these two companies for a near- er union. They agreed to act together in settling a town, and a place was selected for the purpose, to which the name Beverly was given, which afterwards was changed to Bridlington, and finally to Burlington, which last it still continues to bear. In consequence of this agreement, the London settlers took lands nearer to the place of the principal settlement. Two tenths were thus appro- priated and entered upon, and the number of settlers therein was
" For the particulars in relation to the several purchases from the natives at this time, see Smith's New Jersey, p. 95, and Mickle's Reminiscences, p. 33.
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soon increased by the coming of several companies from England.7
The general ordering of all affairs in the province was in the hands of the Commissioners ; they were authorized to lay out the lands included in the different tenths, into ten proprieties and to allot them to particular purchasers.
They were to appoint a Surveyor (in case no such appointment had been made by the Proprietors,) and in like manner a Register or Recorder, and were authorized to determine the rates and fees of these officers for their respective services. Particular regulations were given in the concessions as to the mode of apportioning lands. The quantity was determined by the period of the applicants arrival, advantages being allowed to early applicants, and also according to the number, age, and condition of the persons that were brought to the province:
No authority was given to the Commissioners for making new regulations or laws, they were strictly to pursue the course laid down in the concessions. The special privileges granted to the Yorkshire settlers enabled them to select and appoint their own magistrates and officers, but these too, were to be governed in all affairs by the laws of the concessions. No authority was en- trusted to any which could in any wise conflict with the powers that were to be exercised by the General Assembly of the province.8 The powers and duties assigned to the several officers, were simply of an administrative character. By the settlers in the first and second tenths, the prescribed conditions appear to have been fully observed. But such was not entirely the case among the people at Salem. In 1678, Fenwick, having been liberated from confinement in New York, returned to the province and again assumed the principal control .. He proceeded to make choice of officers for his colony; appointing Samuel Hedge, Surveyor General; James Nevill, Secretary, and Samuel Winder, Register, and declared that he would nominate and appoint other officers at his leisure, and demanded in his Majesty's name "the superiority, and the submission of the people as his right and propriety."9
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" Smith's New Jersey, p. 102.
'In East Jersey the privileges of the special charters had been insisted upon in opposition to the authority of the General Assembly.
, Cantwell's Declaration in New Castle Records.
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Directly afterwards, a proclamation was issued in the name of "John Fenwick, Esq., Lord or Chief Proprietor of the said province, and in particular of Fenwick's colony within the same." In this all persons, Dutch, French and English, who had settled themselves .within the limits of said colony without applying to, or receiving any warrant from lawful authority, were required to appear before Fenwick, within one month, and show their order or warrant for " their pretended titles." Nearly at the some time, a council, consisting of the officers be- fore mentioned, and other persons of "Fenwick's Colony," was held, and regulations were adopted for surveying and setting forth lands according to a method agreed upon, and which was supposed to be suited to the interests of the settlers.10 These proceedings were an assumption of independent authority, and in direct oppo- sition to the proprietary concessions. 1
It does not appear, however, that any attempt was made by the Commissioners at that time, to extend their authority within the limits of the territory that was claimed by Fenwick, or to interfere in any way with his doings. A wise forbearance was exercised.
But if Fenwick escaped from all interference from those who had a right to inquire concerning his proceedings, he was less fortunate with respect to those who had no right. His resumption of authority upon his return to the province brought him again into collision with the authorities at New Castle. He had declared that no one who should pay the customs imposed by Governor . Andross should be permitted to enjoy lands within his jurisdiction.
On the 9th of May, 1678, a communication was sent to New York from the justices of the court at New Castle, "concerning the new alterations made by Major John Fenwick," with a re- quest that a speedy order might be given concerning the same. At that time Governor Andross was absent from his province, not having yet returned from England whither he had gone in the year preceding, but his Secretary and Council, who received the communication from New Castle, gave orders that notice should be given to Major Fenwick to forbear from the exercise of any
10 Johnson's Salem, p. 23.
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authority on Delaware River, according to his parole which (it was said,) had been formerly given, and that should he persist, he was again to be seized and sent to New York. The "notice" was transmitted to Fenwick, but he replied that he was bound to give an account of his government to no one but the King of England, and that he only desired to enjoy that which was his just and undoubted right.
A still more urgent direction to the same effect as the former was soon afterwards transmitted from the Council at New York, to which an answer was returned on the 24th of July, 1678, in- forming the Council, that Fenwick had already been taken to New Castle, and that the authorities there were only awaiting a fit op- - portunity to send him to New York.11 Thus another outrage was committed within the limits of New Jersey, by direction of the officers acting under the commission of the Duke of York.
Further difficulties from the same source were soon to arise. The population of West Jersey was now rapidly increasing by the frequent arrival of new companies of settlers. All these com- panies coming by the Delaware, were subjected at their first arrival to a demand for customs upon all imported goods, which customs the authorities at New York had ordered to be collected .
at Hoarkill; all exports were also liable to the same demand.
As has been stated, the customs in question were first imposed by Governor Lovelace, but they were continued with some slight alteration by Andross, and under his direction the payment had been rigidly enforced; no exemption was permitted "to the smallest vessel, boat or person." This demand was so entirely in opposition to those immunities which the people of this province had expected to enjoy, and which they had a right to enjoy, that it could not be quietly acquiesced in. It has been seen that Fen- wick objected to, and opposed it, and it was the cause of dissatis- faction and complaint with all the settlers in the province .. Instead of the full enjoyment of property under the protection of laws and institutions of their own, they were subjected to the arbitrary exac- tions of a government in which they had no interest or concern whatever. They were reduced to a merely tributary state. The
" New Castle Records.
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question involved in such a demand was of too much importance to the interests and liberties of the settlers to be allowed to remain long undecided.
The proprietors in England made frequent and urgent represen- tations to the Duke of York, upon the subject, and at length, to escape from importunity, or from a transient regard to the demands of justice, the Duke was induced to appoint Commissioners to hear and make report in the case. The Commissioners who were ap- pointed for this purpose, referred the matter, with the consent, or by the request of the Duke, to the decision of Sir William Jones. The defence of the rights of the colonists was made by the pro- prietors, and they maintained their cause with signal ability.12 The case was one that admitted of some scope of argumentation, as it properly included the extent of the royal prerogative, as well as the particular exercise of power which was the subject of present complaint.
The general power of regulating duties and imposts had never been granted to the English King, on the contrary it had been expressly and repeatedly denied. By one of the ancient statutes of the realm it was prescribed, that no tax or impost should be levied without the consent of the Lords and Commons. And in a later statute it was declared, that the King promises to take no customs from merchants without the assent of the realm, saving the customs on wool, skins, and leather, formerly granted. The continued attempts of Charles the First to take the property of his people without the authority and assent of Parliament, had been one of the principal causes that led to the loss of his throne. It had become a settled principle of English law that the King had no right of himself, within his hereditary domains, to impose any tax or cus- tom whatever. Hence there is no other point to be considered in connexion with the present case than whether this limitation upon the King's prerogative extended into colonies, as well as through the ancient portion of the British realm. Lord Holt declared that the
12 'The argument of the Proprictors was addressed " to- those of the Duke's Commissioners whom he has ordered to hear and make report to him concern- ing the customs demanded in West New Jersey, in America, by his Governor of New York."
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law of England did not extend to Virginia; "her law is what the King pleases. 13 But this doctrine has not been sustained, and is in direct opposition to the general spirit of the English laws. The rights and franchises of Englishmen were not to be given or with- held at the discretion of the King. By his own prerogative he might institute government in new lands, but the government so established must be in accordance with the laws and customs of the kingdom. In the most distant places the immunities that belonged to English subjects might be claimed and enjoyed, and among the most important of these immunities was an exemption from all taxation, except such as they should assent to. And if the King himself had no right to impose taxes or imposts in any part of his dominions, neither could any other, in virtue of a grant from him, come to the possession of such a right. Whatsoever grant the King might make, no tax could be laid but by the assent of the people themselves.
If these principles be admitted, it will follow that the Duke of York, and of consequence his subordinates, were without any authority to warrant the imposition of customs, in the case in question. This view was clearly perceived by the proprietors and was strongly set forth by them in the representation they made. They urged that the constitution and government of England gave no support to the authority that was here assumed, it being a fundamental law that the King cannot justly take his subject's goods, without their consent; this, they said, need not be proved, it is an acknowledged principle, "'tis jus indigene, an home born right, declared to be law by divers statutes." And they represented that as Englishmen they were entitled to enjoy this right, not having lost any part of their liberty by leaving the country, and furthermore, that in the King's grant to the Duke of York, the power of the latter was expressly restricted, it being declared that the laws and ordinances he might establish, were not to be contrary to the laws, statutes, and ordinances of the realm of England. But the remonstrants dwelt with no less force upon another point. They not only denied to the Duke the power in question, inasmuch as the King had not given and could not
" Salkeld, p. 666. Particular statutes were not supposed to extend to the colo- nies, unless they were named, but general rights were common to both countries.
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give it to him, but they also insisted that the government of the province had now been surrendered into other hands. That the Duke for a competent sum of money paid him by Lord John Berkely and Sir George Carteret, granted and sold unto them the province of New Jersey, and that he conveyed it to them in as full and ample a manner, as he had himself received it from the King. And that Lord Berkely and Sir George Carteret had made certain concessions containing a model of government, and that many persons went there and planted, and the said government was established and administered with the knowledge of the Duke of York, and without question from any: With a knowledge of these facts, and also upon a presumption that neither Lord Berkely or Sir George Carteret would attempt any thing they were not properly authorized to do, the present proprietors, as they said, had agreed with Lord Berkely for his portion of the pro- vince, and that in the conveyance from him, powers of government were expressly granted. Without this they said, nothing could have induced us to purchase, "because, to all prudent men the govern- ment of a place is more inviting than the soil." They were not desirous of power, but of safety, not only for themselves, but for others, and that their purpose had been to assure people of an easy and safe government, both in respect to their spiritual and worldly concerns. That they liad sold lands in the province to some hundreds of honest and industrious people who had trans- planted themselves to the country, and that upon their arrival they had been met with a demand for custom of five per cent. upon the goods they carried. This they declared was a great grievance, for which they asked redress, and redress was asked "not from a burden only, with respect to the way of levying it, or any cir- cumstances made hard by the irregularity of the officers, but as a wrong." For, they urged, no such tax was reserved in the Duke's conveyances, and it was therefore a new condition, a surprise upon the other party. To lose the right of making laws for themselves would be entirely to change their situation, it would be in effect to sell, or rather to resign themselves to another, and that for nothing. Besides, though by all governments custom is laid upon trade, this upon planting, is unprecedented. Had they brought commo- dities to the province to sell, made a profit out of them, and re-
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turned to the advantage of the trader, there might be some color or pretence for the exaction, but to require and force customs from persons coming to their property, "their own terra firma, their habitations, in short, for coming home," was without a par- rallel. And furthermore, there could be no end to this, for since they were by this precedent assessed without any law, and there- by excluded from their English right of common assent to taxes, there could be no security for any thing they possessed, nothing could be called their own, they were merely tenants at will, and not only for the soil, but for their personal estates.
It was urged, they said, that the province was a conquered country, and that the King being the conqueror, hath power to make laws and raise money, and that this power the King hath vested in the Duke; but they said the conquest indeed has been made, but for whom ? Did the King conquer for himself or for his kingdom and people, and were his subjects who should inhabit there, to be treated as slaves because the country had been won from their enemies ? " Did Alexander conquer alone, or Cæsar beat by himself?" 14
" This part of the argument of the remonstrants, involves a point of English Constitutional law of no little nicety, and upon which authorities are by no means agreed. It has been laid down as a principle by some, that if the King comes to a kingdom by conquest, he may change and alter the laws of the king- dom, but if he comes to it by title and descent, he cannot alter the laws of him- self, without the consent of the Parliament. In Cowper's Reports, (page 211,) a case is mentioned which had been referred to Sir Philip Yorke and Sir . Clement Wearge, upon which they reported "that if Jamaica was still to be considered a conquered island, the King had a right to lery taxes upon the in- habitants, but if it was to be considered in the same light as other colonies, no tax could be imposed on the inhabitants but by an Assembly of the island, or by an act of Parliament. But it was also laid down that if the King by a proclamation or grant should enter into any engagement, conceding a different form of government to a conquered country, he would afterwards be precluded from the exercise of his peculiar prerogative. To apply these prineiples to the case .under notice. If it be conceded that after the second subjugation of the Dutch, the country was to be considered merely as con- quered territory (a point however not determined) it would follow, according to principle just stated, that the King had a right to impose laws at his own pleasure, and even upon natives of England who might reside there. The King
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In addition to these arguments founded upon the law and the equity of the case, certain prudential considerations were also presented ; the effect which the conduct of the Duke might have upon the people of England, was brought into view. If the Duke should insist upon the demand that had been made, it might be considered as showing an inclination to an arbitrary exercise of power, but its abandonment, on the contrary, would give evidence of just and liberal intentions, and a desire to promote the prosperity of the kingdom, and the happiness and welfare of the English people.
This document, prepared by a few Quakers, was one of the highest importance. It was important not only as a defence of the rights of West Jersey, but also as an assertion of principles which bore upon the interests of all the American colonies.
The bold defence of the immunities of English subjects, par- ticularly of their right to exemption from all taxes to which they had not assented, may have had aided materially in fixing those opinions and resolutions, which finally led to American indepen- dence.
After full consideration of the matters submitted to him, a deci- sion was given by Sir William Jones. This decision was given in a formal document bearing date July 28th, 1680. It set forth "that, having heard what hath been insisted on for his Royal Highness, to make good the legality of the demand of five per cent. from the inhabitants of New Jersey, I am not satisfied (by any thing I have yet heard) that the Duke can demand that, or any other duty from the inhabitants of these lands. And that which makes the case the stronger against his Royal Highness is, that these inhabitants claim under a grant from his Royal High-
then, under these circumstances, might have imposed the tax in question. But subsequent to the conquest from the Dutch he had made a grant containing certain conditions. He had conveyed the country to the Duke of York, with powers of government, but the condition was annexed that the regulations and ordinances to be made, should not be contrary to, but as near as conveniently might be, agreeable to the lures, statutes, and government of the realm of England. By this conveyance the general laws of the kingdom were brought into force in the country in question, and of consequence the people were en- titled to the same immunities as other subjec.s of England.
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ness to the Lord Berkely and Sir George Carteret, in which grant there is no reservation of any profit, or so much as jurisdiction."
It required a strong, just, and courageous mind to pronounce a judgement so directly opposed to the views and claims of the prin- cipal persons of the British court, but the decision was sustained, and was assented to by the Duke himself, and shortly afterwards he entirely relinquished his claim. Ou the 6th of August, 1680, his Royal Highness gave a direction to Sir John Werden, his Secretary, to bring in a deed of confirmation or release, in order the more for- mally to convey the province of West New Jersey to Byllinge and the rest of the Proprietors. Accordingly, on the day above mentioned, a deed was executed in which a conveyance was made from his Royal Highness the Duke of York, to Edward Byllinge, William Penn, Gawen Lawrie, Nicholas Lucas, John Eldridge, and Edmund Warner. In this instrument the Duke transferred to the persons above mentioned, all the territory of the province of West New Jersey, "and all the estate, right, title, interest, rever- sion, remainder, claim and demand whatever, as well in law as in equity, of him the said James the Duke of York, of, into, and out of the same, or any part or parcel of the same."
Yet this conveyance was made in such forin as afforded a sort of cover to the claim which the Duke had formerly made to a right of jurisdiction. His pretension had been based upon the principle that jurisdiction and ownership in the province were not only separable, but had been actually separated, he retaining the former in his own hands. This view or pretence was maintained even in the execution of the present grant, for though both property and jurisdiction were entirely resigned, they were not surrendered to the same individuals. The deed gave the property to the persons just named, but it assigned the powers of government to Edward Byllinge alone. It was said that "his Royal Highness doth by these presents, give, grant, assign, and transfer over unto the said Edward Byllinge, all and every such the same powers, authorities, jurisdictions, governments and other matters and things what- ever, which by the said recited latters patent (from the King) or either of them, are and were granted or intended to be granted, to be exercised by his said Royal Highness, his heirs, assigns, deputies, officers, or agents, in, upon or in relation unto the said
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premises hereby confirmed, or intended to be confirmed, and every of them, in case the same were now in the actual seizen of his said Royal Highness ; to be held, enjoyed, exercised and executed by him, the said Edward Byllinge, his heirs and assigns, and by his deputy officers, agents and commissioners, as fully and amply to all intents, constructions, and purposes as his said Royal Highness, or his heirs might, could, or ought to hold, enjoy, use, or exercise the same.15
Whether this special conveyance to Byllinge was made in com- pliance with the wishes of the Duke, in order that the grant which he could no longer withhold, might be made to accord in some measure with his former pretensions and acts, or whether Byllinge himself had desired and secured it as a personal advantage, can- not with any certainty now be determined. But Byllinge was put thereby in a strange position, in regard to the other proprietors, and the people of the province. He had been a party to the conces- . sions in which he, with others, had granted to the people at large the right of choosing their officers, both legislative and executive, yet now, in so far as the new grant was operative, he alone be- come possessed of the powers of government. It was in effect a recal of his previous agreement or grant. This difficulty or inconsistency indeed, he might have wholly removed by confirm- ing the concessions anew. But this was not done, and in conse- quence, the government of West New Jersey assumed from this period a different form, though, as will be seen, the spirit of the concessions was essentially preserved.
Before proceeding further, it may be proper to recur to East New Jersey, and trace the progress of events in that province.
13 Grants and Concessions, p. 418.
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