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 2
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In consequence of these voyages both the Portuguese and the French attempted to set up claims to land in Northern America. But it does not appear that any actual discoveries were then made. It is certain at least, that within the limits of twenty-five and fifty- six degrees of latitude, (and it is not necessary just now to inquire beyond these limits,) they did no more than visit a country which was already known to another people. Cabot had been in advance both of Cortereal and Verrazano, and had claimed the country on behalf of the British crown. As discoverers then, neither the Portu- guese or the French could justly pretend to any title, and their attempts at this time were not such as to warrant a claim upon any other ground. They made no efforts to secure possession ; they effected no settlement, and after a brief visit left the country entirely.
But after a further period of ten years the French renewed their attempts, under the direction of Jacques Cartier. It was the purpose of Cartier to penetrate into the country and establish a settlement. Accordingly, after exploring the coast, and discover-
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THE ENGLISH DISCOVERIES.
ing the mouth of a river which he called the St. Lawrence, he ascended the stream, took possession of a portion of territory and erected a fort. Upon a second visit he penetrated still farther, and opened an intercourse with the native tribes, and finally, in conjunction with a noble of France, he settled a colony of French- inen, near the site of Quebec. This whole undertaking was finally abandoned, but it had been persevered in for so long a time as to give some color to a claim from possesion. Yet it could hardly be considered such a "long uninterrupted and undisputed possession" as would be necessary to give a sufficient title, even to the territory actually occupied. 14
Beside the nations already mentioned, the discoverers of South- ern America, the Spaniards, had extended their researches and efforts so as to come within the bounds of the English discoveries. Su carly as 1512, Ponce de Leon one of the companions of Colum- bus, had advanced toward the north and entered upon a country which he claimed in the name of the Spanish king, and which he called Florida. He was succeeded by other adventurers who advanced still farther. Florida became a theatre of contest be- tween different bodies of Spaniards and French, and at the end of these struggles in which much blood was shed, only one small colony remained. This was a Spanish settlement, and finally survived.
From the statements just made the conclusion may be drawn, that no such claim was acquired by the Portuguese, the Spaniards, or the French within the countries discovered by the English, as could extinguish, or materially affect the rights of the latter, at . least, so far as the greater part of the territory was concerned.
The final acquiescence in the possession of Florida by the Spaniards led to the loss of a portion of territory in the south, but this did not effect the rights of the original claimants to the remainder of the country. The settlements made by the French on the St. Lawrence, were abandoned at so early a period, that a
" The entire period of the French occupation at this time was only about ten years, and, even this was broken by several interruptions. This fell far short of the conditions necessary to a claim from possession.
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right from possession had not become established, and hence in that direction, the clains of the discoverers would still survive.
But another question presents itself to notice. Did the claim . of the English continue in force during the whole interval of time between the date of the original discovery, and that of entering, and taking possession; or was it lost from non-usage and lapse of time? Some authorities have represented a right from dis- covery as being of so imperfect a nature, as to be nearly incapable of distinct existence. It has even been laid down a general prin- ciple or rule, that the property and sovereignty of a nation cannot be acknowledged over any newly discovered lands except those of which it has really taken possession, on which it has formed settlements, or of which it makes actual use.15 The acknowledg- ment of this principle would be entirely to destroy and extinguish the right in question, or at least, to render it of no value or force; its virtue would then be made to depend upon some other, soma . subsequent act, or thing. But this doctrine is by far too strongly stated. Discovery does certainly confer a right, and one that is distinct and independent, though it may be lost in consequence of neglect and the lapse of time. The period of its existence has not been precisely determined. Some authors limit its duration to what they call "a reasonable time," but this is a mode of expression that fixes nothing, as a reasonable time can only be determined by particular circumstances, and will therefore vary in the several cases that may come into view. If, during a period "of general activity a nation should overlook or neglect a posses- sion; no disposition whatever being shown to assert or maintain a claim, a presumption will soon arise that its claims have been abandoned. But during a period of general repose, when nothing occurs to call for vigilence or notice, then, the mere quiescence of a party cannot be rightfully construed as an abandonment of claims. The "reasonable time" must be somewhat extended under circumstances like these. The principles and views above given may be applied to the case under notice.
The movements of the Portuguese, the Spaniards, and the
15 Vattel.
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THE ENGLISH DISCOVERIES.
French, which have already been mentioned, were made at a comparatively early period, and subsequent to these, nothing was done in Northern America, until the advent of the English them- selves. There was a long period of general tranquility, nothing occurred to urge to immediate or speedy action, and the "reason- able time" allowed for such action, would hence be prolonged.
At the very least, if the English title could not be considered, throughout the whole of this period, as being sufficient to bar thie advances of other nations, had such advances been made, yet, in the absence of such, it continued so far in force, as to warrant the English themselves in entering the country and perfecting a title, by use and possession.
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CHAPTER II.
POSSESSION BY THE ENGLISH.
AT length a period arrived when the English people resolved to take fuller possession of their American territories. The reign of Queen Elizabeth was to be marked, in addition to other suc- cesses, by the execution of this design. In the year 1577, an enterprize was projected to establish a settlement, and the course of procedure adopted at the time, was such as brought at once into view, some of the most important principles of British colonial policy. Application was made to the Queen by Sir Humphrey Gilbert, an individual who was distinguished for his generous qualities, and an ardent love of adventure. To this person a grant was made in a formal instrument which was described in its title, as "Letters Patent granted by her Majesty to Sir Humphrey Gilbert, Knight, for the inhabiting and planting of our people in America." It was dated June 11th, 1578. This instrument gave to Sir Humphrey, the full right to certain portions of lands, and also, full authority for the establishment and maintainance of government. It conveyed to the said Sir Humphrey, his heirs and assigns, and every of them, forever, the right to hold and enjoy all such lands, countries, and territories as he should discover, not actually possessed by any christian prince or people. It vested in the said Sir Humphrey, his heirs and assigns, the full right of property in the soil of these countries which he and they were to hold of the Crown of England by homage, upon condition of paying one fifth of all the gold and silver ore found there. It conferred complete jurisdiction within the said lands, and the seas adjoining them, and gave full authority and power to correct, punish, pardon, or rule all-such persons as should adventure within, or inhabit these lands, and that in all causes, capital or criminal, as well as civil. It gave power to make all statutes, laws, and ordinances, for the better government
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of the people, provided, however, that "the said statues, laws, and ordinances, should be as near as conveniently may, agreeable to the laws and policy of England."
The question naturally arises, whether it was within the proper scope of royal authority to confer a grant so comprehensive and full, as was this. The nature and extent of the English claim to land in America have been already considered. This claim so far as it continued in force, had been received by the sovereign now on the throne, in the common course of descent, and the royal authority in these lands was founded on the same laws that ex- isted, and were in operation, in other parts of the realm.
The territory in America could only be regarded as a part of the dominion subject to the crown, and subject as were other parts, to the powers that belonged to the crown. Hence, to inquire whether the sovereign could make such a grant as that conferred upon Sir Humphrey Gilbert, is only to consider in a particular mode, the real extent of the royal prerogative. Queen Elizabeth herself was wont to say "that the Parliament ought not to deal, to judge, or to meddle with her Majesty's prerogative Royal;" and her successor, James, declared that "as it is Atheism and blasphemy in a creature to dispute what the Deity may do, so it is presumption and sedition in a subject to dispute what the king may do, in the height of his power." "Good christians," he says, "will be content with God's will revealed in his word, and good subjects will rest in the king's will revealed in the laws." But notwithstanding these pretentious, the royal prerogative was really restricted within determined bounds, and some of these restrictions had existed from the earliest period. Ina, the great Saxon king, distinctly acknowledged, that there was no great man nor any other in the whole kingdom, that could abolish written laws. It was a part of the oath administered to the Saxon kings at their entrance upon the government, that they should "maintain and rule according to the laws of the nation." In the year 1215, King John had been compelled to sign the Charter which from its importance, has ever since been denominated Magna Charta. In this charter the limitations of the royal prerogative were dis- tinctly laid down, and at subsequent periods other restrictions had been added, and assented to. And at the very time that King
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POSSESSION BY THE ENGLISH.
James put forth his arrogant pretensions, his people and their representatives in Parliament were far from assenting to his prin- ciples and his course.1 . But it does not appear that in the act of Elizabeth in which she gave a title to land, and granted authority to rule, the rightful authority of the sovereign was really exceeded. A title to land was granted by the English monarchs in their character as Lords Paramount. " All the lands in the kingdom," it is said, "is supposed to be holden mediately or immediately of the king, as Lord Paramount."2 That the holder of the crown was to be regarded as the original proprietor of all the lands in the kingdom, could hardly be considered as more than a fiction of law; yet the public domain comprizing those lands which re- mained unappropriated, was held by the king, and was distributed according to his pleasure. According to the theory of the British government, all vacant lands were vested in the crown, as repre- senting the nation, and the exclusive power to grant them was admitted to reside in the crown, as a branch of the royal preroga- tive, and under such grant the subject could take, hold, and possess these lands in full propriety. This continued to be the case long subsequent to the time of Elizabeth, and until the passage of the statute of Queen Anne, in the year 1701. In consequence of this statute, the power of the sovreign over the lands in question, became measurably restricted.
As a grant of property then, the patent given to Sir Humphrey Gilbert was issued in accordance with law, or least without any violation of law. The other part of the grant, the power to establish government, was based upon similar grounds. It did not belong to the king, as a part of his prerogative, to determine the form of government, throughout his entire dominions ; but the laws and customs of the country allowed a different exercise of power, in different parts of the kingdom. Counties Palatine had
' " The king thought that the lavish tongues of men pryed too narrowly into the secrets of his prerogative which were mysteries too high for them, being arcana imperii, fitted to be admired rather than questioned. But the Parliament were apprehensive enough that these hidden mysteries made many dark steps into the people's liberties; and they were willing by the light of law and reason to discover what was the king's, and what was theirs."-Part. Hist.
2 Blackstone.
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POSSESSION BY THE ENGLISII.
- their own rulers and laws; some places were not affected by acts of Parliament, unless specially named therein, and where posses- sion was taken of vacant territories, the king, jure coronce had the power of instituting government therein, provided that such government was consonant to English usages and laws. -
The patent now granted by the Queen, gave authority for the establishment of a proprietary government, a form in which both property and power are placed in the same hands. "Proprietary governments," says a high authority,a "are granted out by the crown. to individuals, in the nature of feudatory principalities, with all the inferior regalities, and subordinate powers of legisla- tion which formerly belonged to Counties Palatine, yet still . with these express conditions that nothing be attempted which may derogate from the sovereignty of the mother country."
In its general scope then, the grant to Sir Humphrey Gilbert was sanctioned by the customs and laws of England. .
Very soon after the reception of the patent, Gilbert made a voyage to America, but in consequence of disasters met with in the course of his voyage, he was compelled to return without effecting a settlement. But soon afterwards he renewed the at- tempt. In the year 1583, he departed from London, and after a more prosperous voyage, arrived in America with a company of two hundred and sixty persons. He took possession of St. John's, in Newfoundland, and made proclamation of his right and title to the country.^ He proceeded at once to exercise his authority, and enacted three principal laws for the government of his colony. By the first of these, public worship was established according to the Church of England, by the second, the attempt- ing of any thing prejudicial to her majesty's title, was declared to be treason according to the laws of England; by the third, the uttering of words to the dishonor of her majesty, was to be punished with loss of cars, and the confiscation of property.
These were the first laws ever made and promulgated in the
3 Blackstone.
. Gilbert says, "On the 5th day of August I entered here, in the right of the Crown of England, and have engraven the arms of England."
Letter to George Peckham.
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POSSESSION BY THE ENGLISH. 25
rountry. They form a brief code but a rigid one, and these laws are worthy of notice, not only from their position in le- gislative history, but also as an exhibition of the temper of go- vernment, at that time. They show the measure of liberty in thought, and word, and deed, that was then allowed to the sub- jects of Britain.5
But Sir Humphrey Gilbert did not live to bring his government into actual operation. He was lost soon afterwards in an attempt to return to England, and the enterprize he had engaged in, totally failed.
The next effort for the establishment of a colony in America, was made under the direction of Sir Walter Raleigh. It may be that the grant to Raleigh, who was the half brother of Sir Hum- phrey Gilbert, was designed, in part, as an extension of that which had been made to the latter. Whether so or not, the conditions were nearly the same. Raleigh's grant was conveyed by an in- strument which bore the name or title of " Letters Patents graunted by the Queenes Majestie to M. Walter Ralegh now Knight, for the discovering and planting of new lands and countries, to con- tinue the space and time of six yeers and no more." Dated March 25th, 1584.
The condition of this grant in respect to time, was not designed as an absolute limitation, it meant no more than that the under- taking must be entered upon within the time mentioned. Raleigh was a man of vigorous and ardent mind, and he immediately prepared to make use of the advantages given in his patent. He
' It would seem that the people with Gilbert were well satisfied with his enact- ments. It is said, " that obedience was promised by generall voyce, and consent of the multitude, as well of Englishmen as strangers, praying for the continuance of this possession, and government begun."
. It is asserted by Stith, (Stith's Virginia,) that " on the 14th of September, Ra- leigh's Patent was confirmed in Parliament, and a proviso added." The reason of the application to Parliament is not given. It could hardly have been sup- posed that a confirmation by Parliament was necessary in order to give validity to the instrument, and the "proviso" might have been added by the Queen, by the same power that enabled her to make the original grant. But whatever may have leen the cause of the application, it affords the first example of the action of Parliament in the affairs of America.
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" POSSESSION. BY THE ENGLISH.
equipped and sent ont tivo ships under the command of Captains Armidas and Barlow. They arrived on the American -coast on . the 4th of July, 1584. . They landed at several places, and- ex- amined the surrounding. country, they had. frequent and friendly interviews with the native tribes, and engaged in some traffic. At their return, the English commanders made a most favorable report, and Queen Elizabeth directed that the country.they had visited, sltould be called Virginia. The portion of territory to which this name wa's given, extended from the thirty-fourth to the forty-fifth degree of latitude.
· Raleigh engaged in several attempts to colonize Virginia. . Act- ing either singly, or in concert with others, he caused several bodies of men to be sent out at different times and settled in the country. These colonies maintained their positions for.a time; the settlers erected forts and dwellings, acquired a knowledge of the land, and of the fratives, and made some feeble attempts to establish government. But in the end, the enterprize was wholly abandoned. Some of the colonists perished from exposure and want, others from the hostility of the savage tribes, and the sur- . vivors embraced the first opportunities that offered to return back to England .?
It was the error of Raleigh and his associates that they failed in a proper concentration of means. Their resources and their efforts were great, but they were expended in repeated and distant attempts. No one of the bodies sent into the country was possessed of sufficient strength to ensure success, yet they were not sustained by timely assistance. Of consequence, these" bodies fell by successive disasters, and each time the ruin was so complete, as to destroy not only the labors of the . past, but also all hope for the future;"so far as these bodies were con- cerned, all expectation was extinguished ..
'.It is commonly stated that Raleigh's Patent was afterwards forfeited in consequence of his attainder. But before the final dissolution of the colonies es- tablochod by hun, he had made an assignment of his privileges and rights, (with sanc reservations,) to Thomas Smith, and other nierchants and adventurers. This assignment was made on the 7th of January, 1589. The assientes attempted or effected but little, and at length either relinquished their claims, or became parties in the companies subsequently formed.
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POSSESSION BY THE ENGLISH.
About this period the pretentions of the French were again advanced. In November, 1603, Henry IV. of France made a grant of territory upon the American continent to the Sieur De Monts, a gentleman of the Bedchamber. This grant extended from the fortieth to the forty-sixth degrees of latitude. De Monts was constituted Lieutenant General, with power to colonize and rule the country, and to subdue and christianize the native inhabitants. De Monts himself was a Calvinest, but he agreed to establish the Catholic religion within the new lands. Hle made a voyage to America with a company of adventurers, and effected a settlement which however was soon afterwards abandoned.
The re-appearance of the French at this time, manifested a disposition to persist in their claims upon the American con- tinent, and the attempt just noticed, together with others that succeeded, eventually led to a disbute between England and France which was finally determined by an appeal to the sword.
For some years subsequent to the issue of Raleigh's attempts, Virginia was almost entirely neglected. Different navigators visited the country, among whom Bartholomew Gosnold deserves to be particularly noticed; but no new settlements were made, and finally, at the close of the reign of Queen Elizabeth, it is doubtful whether a single Englishman remained within the limits of Virginia, or indeed in any part of Northern America. Yet the efforts that had been made were not without fruit. The country had been brought into notice, a period of actual pos- session had given additional strength to the English title, the settlers had examined the lands, and the difficulties to be encoun- tered had become known from actual trial. The first adventurers had suffered, and many of them had perished; they had not been able to secure the country for themselves, but they had rendered the way to possession more easy and safe to others. .
The beginning of a new reign was also the beginning of a new cra in colonial history, an era of much vicissitude but marked by ultimate success.
In the year 1606, application was made to James the First, by divers persons, for authority to engage in a new attempt to colo-
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POSSESSION BY THE ENGLISH.
nize Virginia. The king "greatly commended and graciously accepted their desires, for so noble a work." A patent was soon afterwards issued by which Virginia was divided into two nearly equal parts, and each portion was assigned to a separate company. The "First," or southern division which extended from the thirty- fourth to the forty-first degree, was granted to a body called the London Company. The " Second," or northern division extended from the thirty-eighth to the forty-fifth degree, and was assigned to an association designated by the name of the Plymouth Com- pany. It is evident that these grants were conflicting, as they both extended, in part, over the same portion of territory. The portion so situated was that between the thirty-eighth and forty- first degrees of latitude, and included the present States of Maryland, Delaware, Pennsylvania, and the whole of New Jersey, except a triangular portion at its northern point.s But a direct collision between the companies was prevented by a con- dition, that one should not forin a settlement within one hundred miles of a colony planted by the other, and after a period, their limits were reduced to entire accordance, as will hereafter be noticed,
The patent gave to these companies the full right of property in the soil extending fifty miles on each side of the place of settle- ment, and reaching one hundred miles into the interior country. The companies were authorized to transport to their respective territories as many English subjects as should be willing to adventure. They were also allowed to export from England whatever was necessary for the defence or sustenance of the colonies, without paying duties, for the space of seven years.
The government that was established was distinct in name and form, from the companies, and was of a character not a little singular. It was a sort of Vice Royalty but composed of different bodies, and embracing a large number of members. One body having general authority, was to be established in England, and
. It is to be observed, however, that the patent did not define the limits of the grants toward the west. Those portions only that were specifically given to the companies, were defined in that direction.
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POSSESSION BY THE ENGLISH.
two others, one in each of the provinces, with subordinate juris- diction. These bodies, called councils, were to consist severally of thirteen members, all to be appointed by the king. The councils were to administer the government according to a rule contained in ordinances and instructions signed with the royal hand, or the sign manual, and passed under the privy seal. By this code of instruction, the provincial councils were empowered to make all necessary regulations for the provinces, provided that they should be consonant to the laws of England, and subject to revision by the king or the supreme council in England. The councils were also authorized to levy duties on foreign commo- dities, and the amount thus raised might be used for the benefit of the colonies, for the space of twenty-one years, then, to be paid into the royal exchequer. They were to superintend and direct the distribution of lands among the settlers, and all lands that were granted out were to be held in free and common soccage only, and not in capite. They were to administer justice accord- ing to British customs and laws, and to establish Divine worship in conformity with the doctrines and rites of the Church of England. The colonists and their descendants were to have and enjoy all liberties, franchises, and immunities in the same manner as if they had remained, or been born, in England.
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