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 22
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" The number of the members in this Assembly is not determined.
" The Council was a feature of government now first introduced. Under the former concessions the executive authority was wholly in the body called Com- missioners. This latter body however was still continued, but with restricted duties and powers.
236 GOVERNMENT AFTER THE RELEASE OF THE DUKE OF YORK.
rogued or dissolved before the expiration of one whole year (from the day of their election) without their own consent. That all officers of state or trust should be nominated and elected by the General Assembly for the time being, or by their appointment, and that such officers should be accountable to the General As- sembly, or to such as they should appoint. That no Assembly should give to the Governor for the time being, or his heirs or successors, any tax or custom for a longer time than one year. That liberty of conscience in matters of faith and worship towards God should be granted to all people within the province, who should live peaceably and quietly therein, and no one should be rendered incapable of office on account of faith and worship.
In reference to the Governor and Council, it was provided, that the Governor should not suspend or defer the signing and con -. firming of such laws as were passed by the General Assembly. That it should not be lawful for the Governor, or his heirs and successors, and Council, at any time to make and enact any law or laws for the province without the consent of the Assembly, and that if they or any of them, should attempt to make such laws without the assent of the Assembly, they should, upon legal con- viction, be deemed and taken to be enemies to the people of the province. That it should not be lawful for the Governor, his heirs and successors, and Council, or any of them, to make or raise war, or raise any military forces, or to levy sums of money, or impose any tax whatsoever, without the consent of the Assem- bly, neither should they (without such consent) send embassadors, or make treaties, or enter into any alliances on the public account.
These provisions were in the nature of primary or fundamental articles, which were to form the foundation of government. It was farther provided and agreed, that upon the acceptance of these articles by Samuel Jenings, the General Assembly, proprietors and freeholders of the province would accept him as Deputy Governor. . The conditions. were agreed to by Jenings, he put- ting his hand and seal to the articles, and they were also sub- scribed by Thomas Olive, Speaker, by the order, and in the name of the General Assembly of the province.'
'Grants and Concessions, p. 423.
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GOVERNMENT AFTER THE RELEASE OF THE DUKE OF YORK. 237
The government being thus established, the Assembly pro- ceeded at once to make other enactments. Most of the provisions in relation to the rights of individuals, in respect both to person and property, which were contained in the former concessions, were adopted anew, and put into force.5 Regulations were also made prescribing the duties of the several officers. The Governor and Commissioners (in the same manner as the Commissioners alone, under the former concessions) were empowered to determine the rates' and fees of the Public Register, Surveyor, and other officers of the province.6. They were also to see that all courts established, or to be established, by the Assembly of the province, should execute their duties according to the laws; and to displace or punish offenders. They might suspend the execution of sen- tence passed upon any person, by any judge, justice or court, until the whole proceedings should be presented to the next Assembly, which Assembly, with the Governor, might grant a pardon, or command execution of the sentence. The Governor and Commissioners were also to superintend the divisions, sale and conveyance of lands, and to have charge of the execution of the laws relating to the estates of decedents, and the care of orphans, which laws were full and precise.
No additional regulations of importance were made in relation . to the action of the Legislative Assembly, but the compensation of the members was determined anew. They were to receive tiro shillings for each and every day they should serve, this sum being paid, (as before) by the respective divisions in which they were chosen. To defray the public debts and other charges of the province, it was ordered, that the sum of two hundred pounds should be levied, to be paid in "coin or skins or money," aud two persons were chosen as Receivers General, with authority to appoint their subordinates.7 Of this sum twenty pounds was to
$ In a few particulars new provisions were made; but none that altered the spirit of the laws.
" The fees of all judicial officers were formerly determined by the Assembly, and no change in this respect appears to have been made.
" The sum above mentioned was to be equally levied and proportioned upon the several tenths, twenty pounds upon each and every tenth; and every man to be assessed according to his estate real or personal, and all handicrafts, mer-
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238 GOVERNMENT AFTER THE RELEASE OF THE DUKE OF YORK.
be given to the Governor, and five pounds (as a gratuity for his services) to the Speaker of the Assembly.
It was determined that the town of Burlington should be the chief town or head of the province, at which place the provincial courts, and the General Assembly, were to hold their sittings.
A body of Commissions was also nominated and chosen con- sisting, besides the Governor, of eight individuals.8 After a ses- sion of seven days the Assembly adjourned to the first day of the second month, called April, 1682.
During this period another division or "tenth" had been taken up and occupied; this division, by reason that the first settlers had emigrated from Ireland, was called the "Irish Tenth ;" it was reckoned the third in numerical order, and extended from the Pensaukin to Timber Creek.9 At the time appointed for the meeting of the Assembly, the house not being full, adjourned to the 14th, at which time another meeting took place; no business however was transacted, and the members agreed to dissolve the House, which was accordingly done. But directly afterwards - a new Assembly was called which met on the 2d of May of the same year. The names of the Representatives who had been elected and chosen by the people within their respective tenths, were then returned by the Sheriff according to appointment.10 Thirty-four members attended, and the house was organized by the appointment of Thomas Olive as Speaker. By this Assembly
chants, and others to be assessed at the discretion of the Assessors. All persons who should neglect or refuse to bring in to the officers, the sum taxed upon them, by a specified time, should be fined at the judgment and discretion of the Commissioners, not exceeding forty shillings. This latter provision was an- nulled by the next Assembly.
8 An important part of the business of the Commissioners was the direction of measures for the settling and regulation of lands, and they immediately adopted a number of rules or "methods." Grunts and Concessions, p. 435. ' See Sharp's account in Mickle's Reminiscences, p. 48.
1º The choice of a " Sheriff" is not noticed in the proceedings of the previous Assembly, and as no jurisdictions or counties had yet been erected, the peculiar sphere for such an officer, according to common usage, would seem to have been wanting. It is doubtful what was the precise extent of the action of this officer, at the time.
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the comparative advantages of general and district elections were considered a question that has frequently been agitated in latter times. Hitherto elections had been held within the respective tenths, but the members had been. chosen from all the divisions without discrimination. But the Assembly now resolved that "it was their judgment and the judgment of the respective people by whom they were chosen, that the most regular way for pre- serving liberty and property by a lawful Free Assembly is, that each ten proprieties choose their ten Representatives where they are peopled; and that as the proprieties are, or shall be peopled, they have the liberty of choosing for each ten proprieties, so peo- pled, ten Representatives." The House resolved that twenty- four members, the Speaker being one, should make a quorum for the transaction of business.
For greater convenience in the transaction of public affairs, the province was divided into two districts or jurisdictions, in each of which courts were to be established and regularly held. Four Courts of Sessions were to be held yearly; in one of the districts at the town of Burlington, and in the other, at the town of Salem.11 Smaller courts might be called oftener if need should require, to be called by the Justices ; but if a special court should be called, the party requiring it should pay for every Justice sitting at the
" From the fact that members from Salem were .in this Assembly, and that provisions were made by the Assembly including that portion of country, it is apparent that the relations formerly existing between Fenwick and the gene- ral body of proprietors, had become changed. The independent position of the former must have been wholly or partly relinquished. . But in reference to this particular, there is a lack in the history of West Jersey which the author is entirely unable to supply. In what manner the difficulties which had hereto- fore existed between Fenwick and his lessees, were concluded, if concluded at all, is uncertain, but the country in dispute continued to be known as "Fen- wick's Tenth." It is stated however (Johnson's Sulem, p. 26,) that on the first of March, 1682, Fenwick conveyed a moiety of his proprietary to Governor Penn, of Pennsylvania, excepting and reserving therefrom to himself, his heits and assigns, all that traet of country which was called Fenwick's colony, con- taining as was supposed 150,000 acres. Whether this was intended as a basis of a general arrangement, in which Fenwick was to be allowed to retain the land here reserved, and relinquish all claims to the remainder, is unknown, but it would seem not improbable.
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time, three shillings a piece, and to the other officers of the court according to their ordinary fees, or more for extraordinary services.
The Council, consisting of ten persons of the province, were nominated, and chosen, together with the Commissioners, and the officers of the respective jurisdictions; nine Justices were ap- pointed for the jurisdiction of Burlington, and four for the juris- diction of Salem. Sheriffs were chosen for each, and also a Clerk and Recorder, and Constables were appointed for three of the tenths, none being chosen for Salem.12 It was resolved and en- acted that the next General Assembly should meet on the 12th of the third month, called May, and so yearly. After a session of four days during which several other enactments of minor im- portance were passed, the House adjourned to the 4th of Novem- ber next, "unless there be necessary occasion to meet sooner."
The "necessary occasion" was supposed to arise, and the Governor, by the advice of his Council, summoned the Assembly to appear on the 26th of September of the same year. Twenty- eight members were present at the time appointed. It was then enacted that the election of Representatives should take place within the respective tenths on the 14th day of the second month and so yearly, at such time and place as should be most con- venient. An enactment was also made providing for the settle- ment of certain suits in a kind of Court of Arbitration. In all accounts of debts, of slander, and all accounts whatsoever between neighbors, not exceeding twenty shillings, the arbitration of two indifferent persons of the neighborhood, should be tendered by a Justice of the Peace, who should have power to summon the parties before him, before the matter should be taken to a court, and if both or either of the parties should refuse to stand to arbi- tration, then the Justice might issue his warrant for the trial of the case at the court next ensuing.13 The present session con-
12 Under the former concessions Justices and Constables were to be chosen by the people.
" In the Convention that formed the present Constitution of the State of New Jersey, a motion was made by Mr. Jacques, one of the members, for provision to institute a court similar in some respects to the one here established; it was to be called "A Court of Reconciliation." The proposition was urged with some earnestness, but was not finally adopted.
Minutes of the Convention.
GOVERNMENT AFTER THE RELEASE OF THE DUKE OF YORK. 241
tinued two days, and the House was then adjourned to the 1st day of the third month, 1683.14
The next meeting of the Assembly was one of importance. It commenced according to adjournment on the 2d of the third month, 1683. Thirty-seven members were in attendance; ten from the first tenth, and the same number from the second and from the Salem tenths, each, 15 and seven from the third tenth. Thomas Olive was again chosen as Speaker of the House.
At the beginning of the sitting some enactments were made re- lating to the action of the government, or its respective branches.
It was enacted that the Governor, or his successors, should have no power to require the attendance of the Assembly, or any of its members, (when sitting,) at any place, without the assent of the House. That for the despatch of business, the Governor and Council should have the preparing of bills for laws, which should be promulgated twenty days before the meeting of the Assembly. That the Governor, Council and Assembly should constitute the General Assembly, which Assembly should have the affirmative and negative of all bills prepared by the Governor and Council, and that such bills should be openly read by the Clerk, and the intent thereof be explained by the Governor, and then decided by yeas and nays; and that in the case of exceptions and amend- ments, the Governor and Council and Assembly should determine by a plurality of votes, the Governor having a double vote. All officers were to be chosen on the first day of the session. It was also provided that the Governor and Council should have the government of the State according to the laws, during the recess of the General Assembly.16 Several other enactments were made
" An act was passed at this session for "the encouragement of learning and the better education of youth." It provided that the Island of Matininuck (late in the possession of Robert Stacy,) should be given, and thenceforth to remain forever after, to and for the use of the town of Burlington, and to others con- cerned therein, within the first and second tenths, the rents and profit- thereal to be employed for the maintaining a school for the education of youth wahm the said town, and within the first and second tenths. (Grants and Concessions, p. 455.) It is believed that this property is still appropriated to the purposes here directed.
1$ John Fenwick was one of the Representatives.
" Grants and Concessions, p. 466. The chief administrative authority which, 31
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242 GOVERNMENT AFTER THE RELEASE OF THE DUKE OF YORK.
regulating the purchase and settlement of lands, and other particu- lars. . But the attention of the Assembly was especially directed toward a subject more general in character, and of higher impor- tance and interest.
Although the change that had occurred in the form of the go- vernment subsequent to the grant from the Duke of York, had been acquiesced in by the proprietors and the people, upon cer- tain conditions, it still became a source of no little disquietude. Formerly the government of the province had been held by the proprietors, freeholders and inhabitants, but now it had passed, in theory at least, into the hands of Byllinge, and authority was ex- ercised by a Deputy appointed by him. The principal indeed had been chosen as Governor, and the Deputy 'had been obliged to conform to the conditions and terms that had been made; and thus the actual government came to be sufficiently liberal in action and · character. But still the question of right was not fully determined. With whom the right and the power of government actually lay, was a matter that was much and warmly discussed. Reports were "industriously spread," and "doubts started" calculated to prejudice the rights and claims of the colonists.17 At this time too, it is asserted, the Governor, Byllinge, resolved upon the removal of Jenings from his post as Deputy; a measure which was probably intended by Byllinge as a practical assertion of in- dependent authority, and also, it may be, to mark his dissatisfac- tion with the course of the Deputy in his ready agreement to the wishes of the people. 'T'he proprietors in England, or some-of them, appear to have agreed in their views, with the people of the province, and William Penn advised to a course of proceeding, on the present occasion, which directly tended to defeat the in- - tentions of Byllinge. He recommended that Jenings should be confirmed in his office by the choice of the Assembly.1s This recommendation, besides its bearing in reference to the claims of the Governor, was acceptable in the province on other accounts; Jenings had given satisfaction to the people and they desired his continuance in office.
under the former concessions, belonged to the Commissioners, was here expressly given to the Governor and Council.
11 Smith's New Jersey, p. 163. 18 Gordon's New Jersey, p. 43. Smith, p. 155.
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The Assembly now met, entered upon the consideration of these important particulars, and did not cease until a full determination had been made. Their proceedings are recorded as "the re- solves of the freeholders of this province in Free Assembly met on the 14th day of the third month, 1683." They resolved that the land and government of West New Jersey were purchased together. That Edward Byllinge and his trustees were still obliged to make good their former contract and covenant in which they had granted both property and power. 19 That the conces- sions agreed upon by the proprietors and people and subscribed in London and in the province, were still the fundamentals and ground of government.20 That the General Assembly would stand by, and to, these concessions, (but reserving the liberty and privilege of making such variations as from time to time should seem meet for the public good.) That an instrument should be drawn up, and sent, by order of the Assembly, to some trusty Friends in London, for Edward Byllinge to sign and seal, where- by he might confirm his first bargain and sale, in which both land and government were granted. That upon such confirmation by him the Assembly would manifest their satisfaction, and if the said Byllinge should come to the province himself, they would testify their acceptance and acknowledgements for his care and diligence in the premises. That the expedient proposed by Go- vernor Penn for the election of Samuel Jenings as Governor, was satisfactory, and that after, and in addition to such election, if Samuel Jenings should promise to act in his office with fidelity and diligence according to the laws, concessions and constitutions of the province, sufficient security would be given to the people.
In addition to the difficulties respecting government, some un- easiness had also arisen in relation to the titles to land. The original. deeds from Byllinge and his trustees had contained a condition that the sellers, within seven years from the date, should
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" This resolve was a direct and distinct denial of the claims of Byllinge un- der the grant of the Duke of York.
"John Fenwick made an exception to this resolve, alleging that at the time the concessions were subscribed to, his tenth was under different circumstances, yet nou he freely assented thereto.
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make further assurance of the premises, to the purchasers. Hence the Assembly resolved that these sellers were bound to give the further assurance within the specified time, according to their contract and covenant. It was further resolved, that “forasmuch as the end of all governments is the good of the governed, and that in the Constitution of this colony there are some expressions and passages too strict, and which are found by experience, not to be so practicable or profitable," the Assembly might make from time to time such changes and alterations as they should seem meet; six parts of seven of the Assembly assenting thereto; only that the law of liberty of conscience, the law of property, the law of yearly Assembly, the law of juries, and of evidence, should not be changed.21 The Assembly directly proceeded to carry out its resolves. Samuel Jenings, by the free election and vote of the Assembly, was chosen as Governor of the province, and he immediately subscribed an engagement to act in that capacity "according to the laws, concessions and constitutions as they are now established in the province."
A number of persons were also appointed to prepare the instru- ment to be sent to London for Edward Byllinge to sign, and the individuals in England to whom the business should be entrusted were agreed upon.
Thus again did the people of this province assert their claim to entire freedom from all authority except such as had been insti- tuted by themselves, in accordance with the provisions of the original concessions. In the following year, 1683, the resolutions that had been entered into upon the subject of government, were further pursued, and it was enacted and resolved by the General Assembly, that an instrument containing the state of the case be- tween the proprietors of the province and Edward Byllinge, in relation to the people's legal and equitable right to the government of the province, should be directly transmitted to England, and also. a letter to Byllinge himself. In pursuance of this design,
" Some provision allowing such alterations would seemed to have been required in order to justify the course of the Assembly itself, for whilst they declared that the former concessions were the fundamentals and foundation of government, the provisions now adopted were different in many respects from those of the concessions.
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it was further resolved at the ensuing session (held in March, 1684,) that an express demand upon Byllinge should be made for a confirmation of what he had formerly sold and conveyed, and the Assembly elected and appointed Samuel Jenings the Governor, and Thomas Budd to visit England, and conduct the negotiation there.22 Thomas Olive was nominated by Go- vernor Jenings to serve as Deputy Governor until the next meeting of the General Assembly should take place. This meet- ing occurred in May of the same year, and Olive was then chosen as Governor, and the Assembly resolved that during the pendency of the application in England in relation to the govern- ment, affairs should "remain upon the same foot and bottom, and be managed in the same methods as formerly, until matters shall be controverted and determined." In the interim the internal regulations of the province were further determined; the rate of taxation upon real and personal estate was prescribed, and also the amount to be collected and the mode of collection. Assessors and Collectors of taxes were to be chosen by the people in each of the tenths, such officers having authority within their respective limits ; and in case any persons should refuse or neglect to pay the amount assessed, within the specified time, the next magistrate might issue his warrant to distrain for double the sum taxed, to- gether with the costs and charges. Authority was given to the people of the several tenths to levy taxes for making and repair- ing highways within their respective limits.23
22 It was resolved that the sum of one hundred pounds should be given to Governor Jenings as a gratuity for and in consideration of his loss of time and absence from his own affairs " in his going to England to transact and carry on the public concern of this province, in relation to the government thereof." It was also resolved that one hundred pounds more should be provided for the payment of the charges and necessary expenses of the agents. For these suis the Assembly became responsible, but Samuel Jenings, Thomas Budd and Thomas Olive became bound for one hundred pounds on the public account, and ten other individuals entered as security for the remaining hundred. The money was advanced by Governor Penn. Certain lands in the province were appropriated for the final liquidation of this debt.
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