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 39
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47
general association as aforesaid, shall be admitted to vote in the county where he resides, for deputies to the Provincial Congress." Journal, p. 228.
2 Mr. Penn, who presented the petition, was informed that no answer would be given.
.
414
PROVINCIAL CONGRESS.
of all American vessels and their cargoes, and of all other vessels found trading in any port or place in the colonies, as if the same were the vessels and effects of open enemies; and the vessels and property. thus taken were vested in the captors, and the crews were to be treated hot as prisoners, but as slaves. Nearly at the same time agreements were entered into with certain German Princes, particularly the Landgrave of Hesse Cassel, taking into pay 17,000 troops, to be employed against the Americans, and an additional force of 25,000 men was also to be sent over. Such measures as these were eminently calculated to exasperate and alienate the Americans, and to dispose them to a final separation from the mother country; and such a disposition soon began to be manifested. During the winter of 1775-6, several publications ap- peared, in which independence of England was openly proposed and urged.23 . The measure soon began to be generally considered by the people, and not long afterwards received the sanction of several public bodies. Whether it was distinctly contemplated at the time by the Provincial Congress of New Jersey, is uncertain, but the delegates in Continental Congress were authorized by the instructions of the 14th of February, to join in the general voice . of the colonies, and pursue such measures as might be deemed most beneficial for the public good. On the 22d of April, the Convention of North Carolina empowered their delegates to con- cur with others in declaring independency. Early in May, the Convention of Virginia unanimously instructed their delegates to propose to the General Congress to declare the united colonies, free and independent States, absolved from allegiance and depen- dence upon the Crown or Parliament of Great Britain.
The action of the Continental Congress was in unison with the sentiments expressed in the colonies ; a series of measures were resolved upon by that body, tending toward a final separation from the mother country. The " prohibitory laws" of Parliament were answered by a direction of Congress, that reprisals should be made both by public and private armed vessels ; and the ports of the country were opened to all the world, except the dominions of
" Among these publications, one entitled "Common Sense," written by Thomas Paine, was supposed to have been most influential.
2
.
415
PROVINCIAL CONGRESS.
Great Britain. On the 10th of May, 1776, Congress recommended to the Assemblies and Conventions of the colonies, "to adopt such governments as should, in the opinion of the representatives of the people, best conduce to the happiness and safety of their con- stituents in particular, and America in general." In the preamble to this resolution, (adopted five days later,) it was declared, that "it was irreconcileable to reason and good conscience for the colonists to take the oaths required for the support of government under the Crown of Great Britain, and that it was necessary that every kind of government under the Crown, should be suppressed."
In New Jersey action was so promptly taken upon this subject, that an independent government was formed, even in advance of the declaration of independence by the General Congress. It has been seen that a resolution was adopted by the Provincial Con- gress for a new election of delegates on the 4th Monday in May, 1776. Representatives were accordingly chosen at that time in all of the counties, and the members convened, according to ap- pointment, at Burlington, on the 10th of June. Sixty-five mem- bers were in attendance, five from each of the thirteen counties. On the 11th they met and proceeded to the election of officers, when Samuel Tucker, a member from Hunterdon, was chosen President, and William Paterson of Somerset, was appointed Secretary. The proceedings of this body were of the highest importance, not merely in reference to the immediate, but also to the ultimate interests of New Jersey. A form of government was devised and adopted under which independence was achieved, and which was afterwards continued, until a high degree of prosperity and happiness was reached by the people.2+
At an early period, a communication was received from the Continental Congress, stating that thirteen thousand eight hundred troops were to be employed to reinforce the army of New York,
" The precise character of the body by which the first constitution of New Jersey was framed, has been a subject of much inquiry and doubt. It is here seen that it was the Provincial Congress, a body quite distinct from the As- sembly. It had not been chosen for the particular purpose of forming a con- stitution, but entered upon it, in pursuance of the recommendation of the Gene- ral Congress, and in compliance with petitions from the people, together with the sense of the body itself, as to the necessity of the measure.
416
PROVINCIAL CONGRESS.
of which number, three thousand were requested from New Jersey. This request was complied with; an ordinance being passed for the purpose on the 14th. On the same day, a proclamation made by Governor Franklin, was taken up for consideration. Probably with a view of obstructing the measures that were in progress, his Excellency had issued a proclamation in the name of the King, appointing a meeting of the General Assembly of the province, on the 20th of June. On the 16th the Provincial Congress resolved "that in the opinion of this Congress, the said William Franklin, by such proclamation has acted in direct contempt and violation of the resolve of the Continental Congress of May last."25 It was further resolved, that in the opinion of this Congress, "the said William Franklin has discovered himself to be an enemy to the liberties of this country, and that measures ought to be immedi- ately taken for securing his person, and that from henceforth all payments of money to him, on account of salary, or otherwise, should cease."26 Petitions were received from the inhabitants in
a Reference was here made to the resolution before noticed, that it was ne- cessary that all authority under the Crown should be suppressed.
" The General Congress had recommended to the colonies to arrest and secure every person whose going at large would, in their opinion, endanger the safety or liberties of the country. In pursuance of this recommendation, and of their own resolution, an order was issued to Colonel Nathaniel Heard, of the Middlesex battalion, directing him to wait on Governor Franklin and require his parole not to depart from certain places mentioned (the choice of which was to be left to himself,) and in case he should refuse to sign the parole, he was to be put under strong guard and kept in custody until the further orders of Con-
. gress. A communication was received from Colonel Heard on the 17th of June, informing the Congress that he had waited on the Governor and requested him to sign the parole, which he absolutely refused to do, and forbade the officer at his peril to carry the order into effect. A guard of sixty men was then placed around the house and the further orders of Congress awaited. The Congress ordered that he should forthwith be brought before them. At the same time, a communication was addressed to the General Congress, informing that body of the conduct of the Governor, and of the proceedings that had been taken in the case, and requesting their advice and support. To this communication a reply was made in which the General Congress recommended, that the examination of the Governor should be proceeded with, and that if the Provincial Congress should be of opinion that the Governor should be confined, the Continental Congress would direct the place of confinement, they concurring in opinion
-
·
417
PROVINCIAL CONGRESS.
different parts of the province, praying that a new mode of govern- ment might be established, and on the 21st a resolution was adopted " that a government be formed for regulating the internal police of this colony, pursuant to the recommendation of the Con- tinental Congress of May last." This resolution was passed by a vote of 54 to 3. On the 22d, the Congress proceeded to elect delegates to represent the colony in the Continental Congress ; they were chosen for one year, or until others should be appointed. Richard Stockton, Abraham Clark, John Hart, Francis Hopkin- son, and Dr. John Witherspoon were chosen. They were em- powered and directed to join with the delegates of the other colo- nies, in the most vigorous measures for supporting the just rights and liberties of America, and also, if they should think it necessary and expedient, to join in declaring the united colonies indepen- dent of Great Britain; to enter into a confederacy for nnion and common defence, and make treaties with foreign nations; and to take such other measures as might seem necessary for these great ends ; it being promised that they should be supported with the whole force of the province. But they were instructed, that whatever confederacy they should enter into, the regulation of the internal police of the province was to be reserved to the provincial legislature. On the same day (the 24th,) the subject of the forma-
with the Provincial Congress, that he should not be confined in New Jersey. The Governor was brought before the Congress on the 21st of June, but he re- fused to answer the questions that were put to him, and denied the authority of the body, which, he said, had usurped the King's government in the province ; whereupon the Congress resolved that as he appeared to be a virulent enemy to the country, he should be confined in such place as the Continental Congress should direct. Soon afterwards that body transmitted a resolution that Governor Franklin should be sent under guard, to Governor Trumbull, of Connecticut, who was desired to take his parole, and if he should refuse to give his parole, that he should be treated according to the resolutions of Congress respecting prisoners. This order was executed, and Franklin remained a prisoner in Con- necticut until the end of the war, when he sailed for England. He resided in that country until his death, enjoying a pension from the government. Besides his general course in New Jersey, the feeling against him was increased in consequence of letters that he wrote to England concerning the transactions in the province, some of which letters were intercepted.
See Life of Lord Sterling, p. 121.
53
418
.- THE. CONSTITUTION. :
tion of a new government was again taken up, and a committee con- sisting of Messrs. Green, Cooper, Sergeant, Ogden, Elmer, Hughes, Covenhoven, Symmes, Condict, and Dick, was appointed to pre- - .pare a draught of a constitution. . Two days afterwards (the 26th,) .the committee reported a draught, which was held under considera- tion, in committee of the whole, until the 2d of July, when it was adopted by the house upon the question, " whether the draught of the constitution formed on the report of the committee of the whole, be confirmed now, or deferred for further consideration ?" Twenty- six members voted " now," and nine "for deferring." The instru- ment was thus adopted on the 2d of July, 1776, two days before the declaration of independence by the Continental Congress. But the constitution of New Jersey, though it provided for the estab- lishment of a government under popular authority, fell somewhat short of a full assertion of independence. It contained a clause providing, that if a reconciliation should take place between Great Britain and her colonies, the instrument should become null and void ; but otherwise should remain in full force and virtue. 'This provision, however, was not satisfactory to the whole of the body, and the day after the adoption of the instrument, a question was taken, whether it should be printed immediately, or the printing be deferred for a few days, in order to reconsider in a full house the propriety of the clause just mentioned. It was decided by a reduced majority, in a very thin house, that it should be printed at once, and distributed among the people. Had there been but a brief delay, there is every reason to believe, that this single mark of a dependent relation would have been wholly removed. Pro- bably, however, the reservation exerted no influence upon subse- quent action. 27
The constitution now adopted, contained an assertion of most important principles in government. In the preamble it was de- clared, that all the constitutional authority ever possessed by the King of Great Britain over the colonies, was, by compact, derived
27 Gordon attributes the introduction of this clause to the influence of Presi- dent Tucker. He says " the door of retreat was kept open by the fears of the President, who, a few months after, claimed the clemency of the enemy, with whom, this clause gave him an interest."
-
.
419
THE CONSTITUTION.
from the people, and held for their common interest; and that as allegiance and protection were reciprocal ties, each equally de- pending upon the other, and as George the Third, the King of Great Britain, had refused protection to the people of the colonies, and attempted to subject them to an absolute rule, and made war upon them in the most cruel and unnatural manner, all civil au- thority under him was necessarily at an end. This declaration went to the entire subversion of the former pretensions of the Crown ; contrary to the claim that had been frequently advanced, that government might be established, or modified, or suspended, according to royal discretion ; it regarded the authority of the King in the colonies, as elsewhere, as being derived from the people, and held upon the condition that it should be used for their benefit. And this principle was now to be acted upon. The King, in con- sequence of an abuse of the authority he held, having forfeited all claim to allegiance and obedience, the people assumed the right of determining and acting for themselves. Hence it was declared, that " we the representatives of the colony of New Jersey, having been elected by all the counties in the freest manner, and in Con- gress assembled, have, after mature consideration, agreed upon a set of charter rights, and the form of a constitution." In framing the instrument, it may be, that the great principle already men- tioned, may not in all respects have been fully maintained ; it may be that a degree of authority was given to government, that would seem not perfectly consistent with the theory of popular rights ; . yet a plan was devised that was found to be little objectionable in its practical working, that admitted of the enjoyment of a full measure of liberty, and of the attainment of a high degree of prosperity.
The constitution contained some provisions directly restrictive of the action of government. No person should be deprived of the privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience, nor under any pretence be com- pelled to attend any place of worship contrary to his own faith and judgment ; nor should any be obliged to pay tithes, taxes, or other rates for the purpose of building or repairing any church, or for the maintenance of any ministry, contrary to what he should believe to be right, or have engaged to support. There should be no establishment of any one religious sect in preference to an-
4
420*
THE CONSTITUTION.
other; nor should any Protestant inhabitant of the colony be denied the enjoyment of any civil right, merely on account of his religious principles. 'The inestimable right of the trial by jury was to remain as a part of the law of the colony, without repeal, forever. Limitations were also laid down, in the oath or affirma- tion to be required of the members of the legislative department of government.28
. The government of the province was vested in a Governor, Legislative Council, and General Assembly. The Council and Assembly were to be chosen yearly by the people ; one member of Council, and three members of the Assembly in each of the counties ; but the number of members of the Assembly might be changed by the voice of a majority of the Council and Assem- bly, as might be judged equitable and proper, provided that the whole number should not be less than thirty-nine. The members of Council were to be inhabitants and freeholders in the counties in which they were chosen, and to be worth at least one thousand pounds proclamation money of real and personal estate in the county ; and the members of the Assembly were to be in- habitants of the county, and worth at least five hundred pounds proclamation money in real and personal estate. All the inhabi- tants of the colony who were of full age, and worth fifty pounds clear estate in the county, and who had resided therein for twelve months before the election, were to be entitled to vote for Repre- sentatives.29 'The Assembly were empowered, when met, to choose
28 The members of both houses were to be required, before taking their seats, to take an oath or affirmation, not to assent to any law, vote, or proceeding that should appear to them to be injurious to the public welfare, nor any that should be contrary to the provision for an annual election of members of the Legisla- ture, or for the trial by jury, or for a free toleration in respect to religion and worship.
29 The property qualifications required of the electors and the elected, was a part of the constitution that has exposed it to objection. The subject, however, had been introduced and canvassed in part in former meetings of the Provincial Con- gress, and the provisions inserted in the constitution, were nearly in accordance with previous resolutions, and were probably as liberal as opinion would warrant at the time. But they were found to be too strict for a subsequent period, and relief was obtained by a stretch of authority on the part of the Legislature, and by the
---
.
.
421
THE CONSTITUTION.
a Speaker, and other officers, to be judges of the qualifications of their own members, sit on their own adjournments, prepare bills to be passed into laws, and to empower the Speaker to call a meeting when any unusual occurrence should render it necessary.
The legislative Council were empowered to prepare bills to pass into laws, and have other like powers as the Assembly, and in all respects 10 be a free and independent branch of the legistature, only, that they were not allowed to prepare or alter any money bill ; this was the privilege of the 'Assembly alone.30
The Council and Assembly jointly at their first meeting after each annual election, were, by a majority of votes, to elect " some fit person" within the colony, to be Governor.31 The Governor was to continue in office for one year, and be the constant Presi- dent of the Council, and have a casting vote in their proceedings, but a Vice President was to be chosen by that body, to act in the absence of the Governor. The Governor, or in his absence, the
sanction of general custom. The qualification, as regards the elected, ceased to be much regarded, and it was evaded as to the electors, by an enactment (passed in June, 1820,) that all persons who should have paid a county tax, and whose names were enrolled on the tax list, should be deemed and taken to be worth fifty pounds clear estate. At the same time, the words, " all the inhabitants" were explained to mean, the free white male citizens of the State of the age of twenty-one years.
30 This restriction upon the action of the Council, has been attributed to "haste and confusion of ideas." It is supposed to have been copied from the .British government, under which the right to grant money is claimed by the Commons, because the other branches of the legislature are presumed to have an interest, and to be subject to an influence, foreign to the mass of the people. But here the Council, like the Assembly, being chosen by the people, no reason for such a distinction could exist. To an extent, the objection is well founded ; yet the Assembly might beisupposed to stand as the representatives of the peo- ple, in a somewhat fuller and nearer relation than the Council, and therefore the distinction mentioned, if not necessary, can yet hardly be considered as so entirely groundless, as to warrant the charge of haste and confusion.
See Gordon, p. 183.
31 The direct election of the Executive by the people themselves, is the mode of appointment which modern opinion and usage have sanctioned. But the comparative advantages even of an indirect election by the people, over an ap- pointment by the Crown, the mode that had so long prevailed, seemed to be sufficient to satisfy the Congress, and perhaps to satisfy the people, at the time ..
1
422
THE CONSTITUTION.
Vice President was to exercise the supreme executive power, to be Commander-in-Chief of all the military forces of the province, and also, to be Chancellor of the colony, and Ordinary or Surro- gate General. Three or more of the Council were to be a Privy Council to advise at all times with the Governor when he should think proper to consult them.
.... The Governor and Council, seven whereof were to form a quorum, were to be a Court of Appeals in the last resort, and to possess the power of granting pardons to criminals after condem- nation. Other officers of the judicial department of government were to be appointed by the Council and Assembly, as the Judges of the Supreme Court, Judges of the Inferior Court of Common Pleas in the counties, Justices of the Peace, and the Clerks of the several courts, and also the Attorney General. The term of office of the several judicial officers was determined, but with a provision allowing their re-appointment. They were to be commissioned by the Governor, or the Vice President of Council.32
The Council and Assembly were likewise to appoint a Secretary of State, and Treasurer, and the field, and general militia officers. Sheriffs and Coroners were to be elected by the people in the several counties, and inferior officers of the militia, by the respec- tive companies.
The Council and Assembly were to have power to make the Great Seal of the colony, which was to be kept by the Governor or the Vice President of Council ; it was to be called the " Great Seal of the Colony of New Jersey.". In order to obviate delay and confusion, it was provided, that all the laws of the province" contained in an edition of the laws that had lately been published, should be, and remain in full force, until altered by the legislature, such only excepted as were incompatible with the provisions of the constitution itself; and that the common law of England, as well as so much of the statute law as had heretofore been practised, should remain in force until altered by act of the legislature, such
32 The comparative advantages of the different modes of appointing the offi- cers of the judicial department are yet not determined, but common opinion continues to sanction an appointment by some action of the other departments, in preference to a popular choice.
-----------
+
.
1
423
THE CONSTITUTION.
parts only excepted as were repugnant to rights and privileges con- tained in the constitution.
: With the many excellent provisions in this instrument of go- vernment, there were also obvious defects. There were errors and defects not only in the omission of needed restraints, but in the authority that was actually conferred. The restrictive articles, though highly important in character, were not sufficient in num- ber or reach, to give full security to the people against the danger of an excess of power. . Authority was also given to the govern- ment, especially to the legislative department, that might, with greater propriety, have been left to the people themselves; this was especially the case in regard to the choice of the executive officers. An immediate choice by the people would have been more in accordance with the theory of popular government, and would also have been attended by important practical advantages. The legislative bodies would thus have been freed from the diffi- culties and dangers that arise in appointing to office. An unusual degree of integrity, firmness, and wisdom would be required, to prevent the course of legislation from being sometimes affected, by influences which in this manner are brought into action.
The distribution of powers in the constitution was also defec- tive. The Governor was made at once an executive, legislative, and judicial officer. Whilst he exercised the supreme executive authority, he was authorized to preside in one of the legislative · houses, and to vote therein, and at the same time, as Chancellor, and as the head of the Court of Appeals and of Pardons, he acted as 'a principal judicial officer of the government.33 In the case of the members of Council, there was also a singular commingling of duties and of powers. They were chosen principally as legisla- tors, and the election would frequently be made with but little reference to their acquaintance with judicial proceedings ; and yet as members of the Court of Appeals, a court of the last resort,
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.