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 26
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" This memorial was dated August 12th, 1701. Grants and Concessions, p. 601. " The surrender in West Jersey was not mentioned.
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rialists "seemed" to assert a title to government, yet declared themselves willing to surrender the same to his Majesty upon such terms and conditions as would secure their civil interests and their property, and also that the proprietors of East Jersey residing in the province, had sent over an agent and attorney with authority to offer an absolute and unconditional surrender so far as they were capable of making it.38 That it was the desire of several of the proprietors, that the Governor in office, Colonel Hamilton, might be confirmed therein, until further measures could be taken, but that others opposed his confirmation. Their Lordships then stated, that they were not satisfied that the grants that had been made by the Duke of York to the proprietors, being without any direct and immediate authority from the Crown, were, or could be of any validity to convey a right of government, that being (as they were informed) inalienable and not to be assigned to any other, much less divided and subdivided; and that for this reason they had advised his Majesty that a trial should be had in West- minster Hall, in order to test the right in question. But as no determination had yet been made, and as the provinces had fallen into such disorder and confusion that the public peace, and the administration of justice were interrupted and violated, they were of opinion that it was very expedient for the preservation of those territories to the Crown, and for securing the private interests of the persons concerned, that his Majesty should constitute a Governor by his immediate commission, and that a regular con- stitution of government should be established. They also recom- mended that draughts of such commission and constitution might be prepared, that they might be shown to the proprietors, in order to their acquiescence, and to the surrender of their "pretended right of government" in such manner as might be effectual in law.39 As a mere historical summary, this memorial from their Lordships may not be open to serious objection. But in other respects, the view it presented was far from correct. The allega- tions in regard to the insufficiency of the grants from the Duke of York were wholly unfounded. The King of England had con-
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* No mention is elsewhere made of such a proposal.
* Grants and Concessions, p. 603.
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veyed the country to the Duke and in a manner that was war- ranted by the customs of the realm; he had conferred upon him proprietary rights and authority, in accordance with established usage, he made the property and the power he granted, transfer- able to "heirs, deputies, agents, commissioners and assigns." To allege that the right of government held under such a grant, was "inalienable from the person to whom it is given," was little short of maintaining a direct contradiction. If there was any defect, it must have been in the right of the King to make such a conveyance; but, as has just been remarked, he was warranted in the act by established custom. It is probable, however, that the allegation above mentioned was no more than a mere pretence. The privileges held and claimed by the proprie- tors, were thought to be detrimental to his Majesty's interests, especially the privilege of ports; and to enable his Majesty to re- sume authority, either by forcing the proprietors to make some concessions, or otherwise, to deprive them of the government entirely, may be supposed to have been the real motive that prompted the proceeding. The memorial, too was somewhat dis- engenuous in the statement, that no sufficient form of government had ever been settled in the provinces, and also in relation to the circumstances of the former surrender of government, and of those which caused the present proposal to surrender. In regard to the present proposal, the measure which the Lords Commissioners had recommended, to "test" the proprietary rights, was no doubt productive, in part, of the expected effect. It evidently put the go- vernment in jeopardy, for though the apparent ground of the pro- ceeding seemed wholly untenable, yet, in the disposition that then prevailed the issue of a trial was doubtful; and a surrender upon determined conditions, was probably considered a more prudent course, than to incur the hazard of a decision by law. The con- fusion and disorder prevailing in East Jersey was also a principal motive to the measure. If the government could be saved to the proprietors in a decision by law, it might still be taken by violence and force. Many of the people were resolved to resist any rule which should call in question their titles to land, and demand the payment of rents; and numbers, who had hitherto been quiet, making an advantage of the confusion of the times, were taking
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up lands upon the Indian right, and thus arraying themselves in opposition to government. Difficulties too, had occurred in the administration of government, which, under the circumstances of the time, the proprietors were unable to remove, and thus new causes or occasions of dissension had arisen.
In West Jersey the circumstances were so far similar as to lead to a general concurrence of action. The claim to government in that province was equally involved in the pending trial. The actual internal condition of the province was far more favorable; it was entirely free from a source of dissension which had proved most fruitful in the other; there was no dispute concerning the titles to land, all the lands had been purchased from the natives by the proprietors, and were conveyed by them to the people, by regular grants. But serious difficulty had occurred from a different source. For some time the government had stood upon disputed ground; the people were not now in active opposition, there was even an appearance of satisfaction; yet, as the nature of the relations be- tween the people and the claimants and possessors of power con- tinued unchanged, there was nothing to give an assurance of con- tinued tranquility. An additional reason operating in both of the provinces, was the state of the proprietary bodies themselves; they were divided in situation, some of the members remaining in England, and others in the provinces, and this, together with the increase in their numbers, and the consequent division of interests M. and of views, rendered it scarcely possible to maintain the neces- sary union and concert in action.
The recommendations contained in the memorial of the Lords of trade were acceded to, and carried into practice. A plan of government contained in 'a commission and instructions for a Governor, were prepared, by order of their Excellencies the Lords Justices, and were offered to the consideration of the pro- prictors of the provinces, and received their unanimous approval : permission was also given to them, agreeably to their request, to name a person to be appointed by the King, as Governor; but they were unable to agree in the recommendation of any individual. The plan of government was also submitted to the King with a humble request from the Lords of trade, that his Majesty would be pleased to confirm it, and to appoint some
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person as Governor who was wholly unconcerned in the fac- tions that had divided and distracted the provinces.40 The arrange- ments for the contemplated change were not fully completed when "the death of William, the English King, which occurred in March, 1701-2, suspended the proceedings. But soon afterwards, upon the accession of Queen Anne, the business was resumed and was quickly perfected. The act of surrender was designated as "The Surrender from the Proprietors of East and West New Jersey, of their pretended right of Government, to her Majesty." It was dated April 15th, 1702. In this instrument the proprietors of the said provinces surrendered and yielded up "and by these presents do surrender and yield up to our Sovereign Lady Anne, by the Grace of God, Queen of England, Scotland and Ireland, defender of the faith, all the powers, authorities and privileges of, or concerning the provinces aforesaid." The act was signed by twenty-two persons for the eastern province, and by thirty-two for the western. Two days afterwards the government was formally accepted by the Queen, at the Court of St. James', in the presence of the principal persons of the court, some of the proprietors themselves presenting the instrument. Her Majesty then gave orders that the deed of surrender should be enrolled in her Majesty's High Court of Chancery.
"Smith's New Jersey, p. 261.
CHAPTER XV
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NEW CONSTITUTION OF GOVERNMENT .- LORD CORNBURY'S ADMIN- ISTRATION.
"THE surrender of the Jersies," said William Penn, "is an ugly preface." By this expression he probably meant to convey the idea that the surrender was of evil augury, in regard to the interests and the permanence of proprietary governments. But it was not the proprietary or governing interest alone, that was concerned in the change ; the condition of the people at large was materially affected thereby. It has been seen that the projected system of government received the approval of the proprietary bodies, and some of its principal provisions appear to have been . adopted upon the suggestions they made. Whether the authority of these bodies was such as to render them competent to dispose anew of the rights they had heretofore granted; whether in the act of surrender the privileges formerly enjoyed by the people, were placed at the foot of the throne, to be re-granted or withheld according to the royal discretion and will, are questions which might admit of protracted debate. But whether as a measure of right, or of mere authority, the new Constitution of government was at once established. It was promulgated on the 16th of November, 1702, being contained in'a commission and instructions given to Edward Hyde, Lord Cornbury, to whom its administra- tion was entrusted.1 Lord Cornbury was appointed as Governor both of New York and New Jersey. His commission in the lat- ter gave him the style of " Captain General and Governor-in-Chief in and over the province of Nova Casarea, or New Jersey, in America."
' Lord Cornbury had been proposed as Governor before the death of King William, but received his appointment from Queen Anne, to whom he was re- lated; he was the grandson of the Earl of Clarendon.
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By the new plan, East and West New Jersey were fully united and incorporated together as one province, and made sub- ject to one government. The government of the province of New Jersey was to be vested in a Governor, Council and General As- sembly. The Governor was to hold office at the pleasure of the Crown. The Council were appointed by the same authority, but the members of Council might be suspended for just cause, by the Governor, who might also nominate to office, and appoint members to serve in cases of death or absence, subject to royal confirmation ; but the number could not be augmented or lessened by him. The General Assembly was to consist (according to ad- ditional instructions afterwards given by the Queen,) of twenty- four Representatives, to be chosen, two by the inhabitants house- holders of the city or town of Perth Amboy, in East Jersey; two by the freeholders of each of the five counties of the said division of East New Jersey; two by the inhabitants, freeholders, for the city or town of Burlington, in West New Jersey; two by the in- habitants, householders of the town of Salem, in the said division, and two by the freeholders of each of the four counties in the said division of West New Jersey. No person could be elected a Representative who had not a freehold estate in his own right, of one thousand acres of land, within the division for which he should be chosen, or personal estate to the value of five hundred pounds sterling ; nor could any person vote in an election for Representatives who should not be possessed of a freehold estate in his own right, of one hundred acres of land within the county in which he should vote, or personal estate to the value of fifty pounds sterling. The Assembly was to be called, and to sit, alternately at Perth Amboy, in East New Jersey, and at Burling- ton, in West New Jersey.ยช The number of the members of the General Assembly, or the manner of choosing them was not to be changed except by an act of the Assembly, and confirmed by Royal approbation. The Representatives chosen were to take the oaths required by act of Parliament, without which they were not to be capable of sitting. The Assembly wasto be convened
? In cases of "extraordinary necessity," the Governor, with the advice of his Council, might appoint the meetings differently.
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by the authority and order of the Governor, with the advice of his Council, from time to time as need should require, and the Gover- nor might adjourn, prorogue or dissolve it according to his discre- tion. It was prescribed that in enacting laws, the style used should be, "by the Governor, Council and Assembly," and full power was given to enact all laws, statutes and ordinances, for the peace, welfare and good government of the province; such laws and statutes not being repugnant to, but as near as may be agreeable to the laws and statutes of the kingdom of England.3
The Governor was directed to propose to the General Assembly and to use his "utmost endeavours" with them, that an act should be passed for raising and settling a public revenue, for defraying the charges of government, including particularly a competent salary for himself as Captain General and Governor-in-Chief of the province. . He was also instructed, in order to the quieting the minds of the people, and for settling the properties and posses- sion of all persons, either proprietors under the original grant of the province, or purchasers from them, to propose the passing of an act or acts, whereby the rights and property of the proprietors of the soil might be confirmed to them, according to their, respec- tive rights and titles; together will all quit-rents that have been reserved or that were, or should become due. Care was to be taken that no other persons except the general proprietors or their agents should be permitted to purchase any land whatsoever from the Indians within the limits of their grants, and the Governor was to permit the Surveyors and other persons appointed by the general proprietors to execute their respective trusts, and if neces- 'sary, to give them assistance, such persons taking proper oaths for the due fulfilment of their offices, and also the oaths appointed by acts of Parliament.
In settling a revenue, it was to be proposed to the Assembly that such customs and duties should be laid upon commodities imported and exported, as were laid upon similar commodities in
' It was also provided that all laws of what nature or duration soever, should, within three months or sooner after the making thereof. be transmitted for ap- probation, and all such as were not approved, and the approval signified under the Royal sign, manual and signet, or by order of the Privy Council, should become utterly void, and no effect.
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New York.4 The Governor was required not to permit any clause to be inserted in any law for levying money, or the value of money, whereby the same should not be made liable to be ac- counted for in England, to her Majesty's High Treasurer, or the Commissioners of the Treasury; nor to suffer any public money to be issued or disposed of, otherwise than by warrant under his hand, by and with the consent of the Council.
To the end, that nothing should be done "to the prejudice of our heirs and successors," it was ordained, that the Governor should enjoy a negative power in making and passing all laws, statutes and ordinances. He was also empowered, with the advice and consent of the Council, to erect, constitute and establish such and so many courts of judicature and public justice, as he and they might think fit and necessary, and to determine the authorities, fees and privileges belonging to them ; the proceedings in these par- ticulars being subject to her Majesty's approval. The Governor was also authorized to appoint Judges, Justices of the Peace, and other officers for the administration of justice, and for putting the laws in execution. He might pardon all offences against the laws, (except in cases of treason or wilful murder, when .re- prieves only could be granted,) and remit all forfeitures and fines. He was empowered to provide for the defence of the pro- vince, to execute martial law in cases of invasion or insurrection, and to do every other thing that might of right appertain to the office of Captain General and Governor-in-Chief. In case of the death or absence of the Governor, his duties were to be performed by a Lieutenant Governor, commissioned by the Crown, and if no such officer should be in the province, the oldest Councillor, whose name was first placed upon the Governor's instructions, should take upon him the administration of government.
Certain general provisions in relation to the privileges of the people were also contained in the instructions. No man's life, member, freehold or goods, should be taken away, otherwise than
. It was said that "the trade and welfare of the province of New York would be greatly prejudiced, if not entirely ruined, by allowing to the inhabitants of New Jersey any exemption from those charges which the people of New York were liable to."
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by established and known laws, and liberty of conscience was to be allowed to all persons, (except Papists,) who should conduct themselves in a peaceable and quiet manner without giving offence or scandal to the government. Those persons in the province who made a religious scruple of swearing, were to be relieved, by allowing them to take a solemn affirmation instead of an oath. Due encouragement was to be given to merchants and other traders, and especially the Royal African Company of England; and it was recommended to the company that the province should be constantly supplied with "merchantable Negroes," at moderate rates. Laws should be passed to discourage inhuman severity against Indians and Negroes, and the best means were to be used for their conversion to the Christian religion. The Governor was to take care that God Almighty should be devoutly and duly served throughout his government, to which end, a special form of service, with the doctrine and discipline of the Church of England, was to be encouraged and maintained.
The bearing of the new government upon the condition of the parties concerned, may be readily perceived. The former pro- prietary bodies had lost a claim to authority which they had scarcely been able, if greatly desirous, to retain and enforce; but they were now to be secured under royal assurance and direction, in the enjoyment of property. The people generally gained nothing whatever, but were losers in many particulars. The government was far less favorable to popular interests and rights than those which had previously existed. The Representative body in re- gard to their meetings and sittings were made wholly dependent upon the will of the Governor. The establishment of courts and the determination of their respective powers, with the salaries and fees of the officers were to be regulated by the Governor and Council; the people, or their Representatives, were allowed scarcely any part or power in the institution and control of the judiciary department of government. The public revenues were to be raised and disposed of, under strict accountability to the Governor, and the authorities in England; the independent action of the popular Representatives in matters of revenue, extended little further than to fix and determine the amount of grants. The complete religious freedom formerly enjoyed, was reduced to an
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imperfect toleration. Papists were wholly excepted from the grant of liberty of conscience, and the influence and patronage of govern- ment was to be given in favor of a particular church.5
The institution of slavery, which though formerly existing, had not been fostered, was now urged upon the province by royal re- commendation. As a still more decisive mark of the character and temper of the government, a direction was given, that "foras- much as great inconveniences may arise by the liberty of printing in our said province, you are to provide by all necessary orders, that no person keep any press for printing, nor that any book, pamphlet, or other matters whatsoever be printed without your especial leave and license first obtained."
Lord Cornbury arrived in New Jersey in August, 1703. The Council had already been appointed.6 His instructions required that he should convene his Council and "with all due solemnity" cause the commission he had received to be read and published at their meeting, and also that proclamation thereof should be made throughout the whole of the province. This being done, an order was issued for the choice of members of the General As- sembly, and the Representatives elected convened at Perth Amboy on the 10th of November, 1703. Nearly the whole number allowed, had been chosen, and were in attendance.7 Thomas Gardiner, a Representative from the town of Burlington, was ap- pointed Speaker.
The change that had taken place in the character of government was indicated by the manner of proceeding at the opening of the
s The Churches already built were to be well kept, and others erected; a competent maintenance to be assigned to the minister, a convenient house built for his accommodation, at the common charge, and a sufficient proportion of land be assigned for his use. The Governor was empowered to prefer any minister to any ecclesiastical benefice in the province, provided however, that a certificate should first be had from the Right Reverend Father in God, the Lord Bishop of London, of his being conformable to the Church of England.
" The Council had been appointed by the Queen. They were Edward Hun- loke, Lewis Morris, Andrew Bowne, Samuel Jenings, Thomas Revell, Francis Davenport, William Pinhorne, Samuel Leonard, George Deacon, Samuel Walker, Daniel Leeds, William Sanford, and Robert Quarry.
" Twenty-three members were present. The names are given in Smith's New Jersey, p. 276.
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LORD CORNBURY'S ADMINISTRATION. 287
session; the forms of address expressive of deference to the re- presentative of royalty, were adopted by the Assembly in address- ing the Governor. They asked that the members, with their servants, might be free from arrest or molestation during the con- tinuance of the session; that they might have free access to his Excellency's person, as occasion might require; that they might have liberty of speech, and a favorable construction of all debates that might arise; and that if any misunderstanding should occur between the Council and the House, that a committee of the Council might be appointed to confer with a committee of the House for adjusting all differences. These requests were granted by his Excellency, excepting the last, which was denied as being "an innovation."
The Governor proceeded to explain his situation and aims, in a speech to the Council and Assembly. He stated that her mnost Gracious Majesty had been pleased to honor him with the trust of government, and had commanded him to assure them of her protection ; he set forth, that under her auspicious reign they might enjoy all the liberty, happiness, and satisfaction that good subjects could wish for, and he did not question but that they would do all that could be required of faithful subjects. He re- commended that they should endeavour "heartily and seriously" to reconcile the unhappy differences that had heretofore existed; stated that they were now met for the purpose of passing such laws as might conduce to the quiet and welfare of the province; and that he was commanded to recommend to them to raise a revenue for the support of the government, and to settle the right and property of the general proprietors to the soil of the province, according to their respective titles, together with their quit-rents and other privileges.
The reply of the Representatives was marked by a degree of warmth and courtesy, that would almost seem to have exceeded the limits of prudence. They returned "hearty thanks" for his Excellency's kind expressions, and said they were assured that the proprietors, by their surrender of the government, had put the people and province in much better circumstances than they were; the former rulers not being able to give protection "from the villanies of wicked men," and they said, that having an entire de-
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