USA > New Jersey > Documents relating to the colonial history of the state of New Jersey, Volume VIII > Part 10
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him to be a Member of His Majestys Council here, not Sufficient, I have in Obedience to the Royal Mandamus, admitted him, although Your Lordships will allow me still to think, that by the several Affidavits I Trans- mitted to Your Lordships, he had shown great Con- tempt of the King, and of His Laws, and had treated His Governour not only Insolently but Impudently.
And I have now the Honour to Cover to Your Lord- ships, a Copy of His Majestys 6! Instruction, respect- ing my Nomination of persons, to be of His Majestys Council here, by which I think it must be plainly seen, that when Vacancies happen, I am Commanded to take care, the Council shou'd always Consist of six persons, inhabitants of the Eastern Division, and six others, Inhabitants of the Western Division, and in Duty to this Instruction, I always have, and shall for the future, when Vacancies happen, Nominate persons of each several Division .- accordingly; but M' Ash- field who is an Inhabitant of East Jersey, stands now a Councillor for the Western Division.
I have the honour to be, with great Respect
My Lords Your Lordships Most Obedient & Most Humble Servant J BELCHER.
Copy of His Majestys 6 Instruction, Extracted from the Body of His Instructions to His Governour of His Majestys Province of New Jersey.
And that We may be always Informed of the Names and Characters of Persons fit to Supply the Vacancies that shall happen in Our said Council, You are to transmit unto Us by One of Our Principal Sec- retaries of State, and to Our Commissioners for Trade and Plantations, with all convenient speed the Names and Characters of six persons Inhabitants of the Eas- tern Division, and six other persons Inhabitants of the
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Western Division of our said Province, whom you shall esteem the best Qualify'd for that Trust, and so from time to time when any of them shall Dye, depart out of our said Province, be sworn into Our said Coun- cil or become unfit, you are to Nominate unto Us so many others in their Stead, that the list of twelve Per- sons fit to Supply the said Vacancies, Viz! Six of the East and six of the West Division, as aforesaid may be always Compleat.
J. BELCHER
Opinion of the Lords of Trade on the Boundaries between New York and New Jersey.
[From N. Y. Col. Docts., Vol. VI, p. 773.]
Opinion of the Board upon the Question of Boundaries between N Y & N J.
At a Meeting of His Majesty's Commissioners for Trade and Plantations.
PRESENT-The Right Hon: Horatio Walpole Mr Pitt Mr Grenville Mr Oswald
Thursday June 7th 1753
Their Lordships took into Consideration the Act passed in the Province of New Jersey in 1743 for run- ning the Line of Partition between that Province & New York and came to the following opinion and resolutions thereupon vizt
The Act in Question is An Act passed by the Gov- ernor, Council & Assembly of the Province of New Jersey.
The general object of it is to run the Line of Parti- tion and Division between the Provinces of New Jersey and New York.
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The Considerations which arose upon this Act are of two sorts, vizt
Such as relate to the Principles upon which it is founded, & such as relate to the Transactions & Cir- cumstances which accompany it.
If the Act & the Regulations prescribed by it are founded upon Principles of Justice, and are consistent with the established Forms of the Constitution in such cases, and can be rendred effectual to answer the proper and legal purposes of it, the Act ought to be confirmed.
But if on the contrary it should be found unjust, unwarrantable and ineffectual, it ought to be rejected.
As to the first, it is an Act of the Province of New Jersey interested in the determination of the Limits and in the consequential advantages to arise from it.
The Province of New Jersey in its distinct and separate capacity can neither make nor establish Boundaries; it can as little form Regulations for decid- ing Differences between itself and other Parties con- cerned in Interest.
The established limits of its Jurisdiction and Terri- tory are such as the Grants under which it claims have assigned.
If these Grants are doubtfull and differences arise either upon the construction or upon the matter of them, We apprehend that there are but two methods of deciding them either by the concurrence of all parties concerned in Interest, or by the regular and legal forms of Judicial proceedings.
The legal method of proceeding We conceive must be derived from the immediate authority of the Crown itself, and be signified by a commission from His Maj- esty under the Great Seal.
The Commission of subordinate Officers and of de- rivative Powers are not competent nor adequate to such purposes.
10
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To Judge otherwise would be to set up exparte De- terminations of incompetent Jurisdictions in the place of Justice and legal Authority.
If the Act of New Jersey cannot conclude other par- ties it cannot be effectual to answer the Ends proposed.
That it would not be effectual to form an absolute decision in this case, the Legislature of that Province seems sensible. whilst it endeavours to place in the hands of the Crown the Decision of one point relative to this matter and of considerable importance to it, which power the Crown cd not derive from them with- out their having the power to establish the thing itself without the assistance of the Crown.
As We think the present Act without the Concur- rence of other parties concerned in interest unwarrant- able and ineffectual, the next point to be considered is what Transactions and Proceedings have passed to- wards obtaining such concurrence.
The principal Parties interested are the two Pro- vinces of New York and New Jersey and the Crown The Provinces are interested with respect to their Government and Jurisdiction and His Majesty with respect [to] Sovereignty, Seigneurie and Property. With regard to the transactions on the part of the Province of New York, We shall only observe, that whatever Agreements have been made formerly be- tween the two Provinces for settling their Boundaries, whatever Acts of Assembly have passed, and what- ever Commissions have been issued by the respective Governor's & Governments, the Proceedings under them have never been perfected, the Work remains unfinished and the Disputes between the two Pro- vinces subsist with as much Contradiction as ever.
But what we principally rely upon is, that those Transactions were never properly warranted on the part of the Crown, that the Crown never participated in them, nor could be bound with respect to its Inter- ests by Proceedings so authorized.
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ADMINISTRATION OF GOVERNOR BELCHER.
The Interests of the Crown may be considered in three lights, either as Interests of Sovereignty respect- ing mere government, of Seigneurie, which respect Escheats and Quit Rents; or of Property, as relative to the soil itself, which last takes place in such cases whether either the Crown has never made any Grants of the Soil, or where such Grants have by actual Es- cheats reverted to it. With regard to the former viz! those of Sovereignty it may be alledged, that they are not materially affected by the Question, as both Pro- vinces are under the Immediate Government & Direc- tion of the Crown, but they stand in a very different light with respect to the Interest of Quit Rents & Es- cheats, and we think with respect to them the situa- tion of the two Provinces makes a material alteration; for though the Province of New Jersey is not under Regulations either of Propriety or Charter with respect to its government, yet it is a Propriety Province with respect to the Grant and Tenure of its Territory, and consequently as New York is not in that Predicament, the Determination of the Boundary in prejudice to that Province will affect the Interest of the Crown, with respect to the Tenure of such Lands as are con- cerned in this Question, it being evident that whatever Districts are supposed to be immediately held of the Crown in New York by being supposed to be included in the Limits of the Province of New Jersey, will immediately pass to the Proprietors of that Province and be held of them, by which means the Crown will be deprived of its Escheats and the Quit Rents will pass into other hands; And as to what has been said to obviate this difficulty, that the Crown having made absolute Grants of the whole Territory that can possi- bly come in Question under the Determination of the Boundary, and reserved only trifling and inconsiderable Quit Rents, it does not seem to us conclusive, since it admits as [an?] Interest in the Crown, the greatness or
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smallness of which is merely accidental and does not affect the Essence of the Question. Though We can- not help observing that in the case of exorbitant Grants with inconsiderable Quit Rents and where consequently it may reasonably be supposed that the Crown has been deceeved in such Grants by its Officers, the con- tingent Right of Property in virtue of its Seigneurie, seems rather to be enlarged than diminished.
This being the Case, it appears to us that Governor Hunter ought not to have issued his commission for running the line above mention'd without obtaining a previous direction of instruction from the Crown for that purpose, a Commission issued under such circum- stances can be consider'd with respect to the interests of the Crown in no other light than as a mere nullity; That even with respect to the Province of New York we observe the Commission is questionable, as it does not follow the Directions of the Act of 1717, which declares that the Commission to be issued shall be granted under the Joint authority of the Governor and Council of that Province; But as it has been urged that the Crown has since confirmed and approved these Transactions either by previous declarations or by subsequent acquiescence, and consequently partici- pated in them so far as to conclude itself. We shall in the next place consider the circumstances urged for that purpose. We do not think that any thing has been transacted in such a manner as to support such an Inference. It has been urged that the Crown by giving consent to an Act passed in New York in 1717 for paying and discharging several debts due from that Colony &cª concluded and bound itself with respect to the subsequent Proceedings had under the Commis- sion issued by Governor Hunter. The view and pur- port of that Act appear to us so entire & so distinctly formed for the purpose of raising money and estab- lishing funds so various and so distinct from any
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ADMINISTRATION OF GOVERNOR BELCHER.
consideration of the Disputes subsisting in the two Provinces with respect to the Boundaries, that We cannot conceive a single clause in so long and so intri- cate an Act can be a sufficient Foundation to warrant the Proceedings of Governor Hunter subsequent to it without a special Authority from the Crown for that purpose, and there is the more reason to be of this opinion as the Crown by giving its assent to that Act can be construed to have assented only to the levying money for a future purpose, which purpose could not be effected by any Commission but from itself, and can therefore never be supposed to have thereby approved a commission from another Authority at that time actually issued & proceeded upon previous to that assent.
With respect to the Transactions between the Prov- ince of New York and Connecticut, alledged to be similar to and urged as a Precedent, and even as an approbation of the Matter now in Question, We think the two cases materially & essentially different from each other. The Act passed in New York in 1719 for running and ascertaining the Lines of Partition and Division between this Colony and the Colony of Con- necticut recites, that in the year 1683 the Governor & Council of New York and the Governor and Commis- sioners of Connecticut did in Council conclude an Agreement concerning the Boundaries of the two Provinces; that in consequence of this Agreement Commissioners and Surveyors were appointed on the part of each Colony, who actually did agree, determine and ascertain the Lines of Partition, marked out a cer- tain part of them and fixed the Point from whence the remaining parts should be run; That the several things agreed on and done by the said Commissioners were ratified by the respective Governors entred on Record in each Colony and in March 1700 approved and con- firmed by King William's Order in Council & Letter
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to His Governor of New York, from which Recital it appears to us, that these Transactions were not only carried on with the Participation but confirmed by the express Act and Authority of the Crown, and that Confirmation made the Foundation of the Act passed by New York for settling the Boundaries between the two Provinces
As to the Argument which has been urged in sup- port of the Act, That the Transactions already pass'd for settling the Boundary have determined the most material parts of it, and that one point being fixed and the other left to the Crown to fix at its pleasure the remainder is of little consequence & of no Difficulty. We observe in the first place that the Crown has been no Party to these Transactions, that the Merits and Execution of them are contested even by those who were parties to them, that the Crown would by such a Method be drawn in to give it's Assent to Matters in which it has never participated, and to authorise future Determinations upon its Interests, under proceedings which it may have no opportunity to examine
As therefore it appears to us that the Proceedings in this affair were not warranted in the first Instance by proper Authority, and as the Interests of the Crown may be immediately affected by this Act carried on without any proper Participation on the Part of the Crown, We cannot think it advisable to recommend it to His Majesty for his Approbation.
Ordered that this foregoing Resolution and Opinion be communicated to the Agents for the respective Prov- inces, and that the Secretary do desire their Attend- ance at the Board on Wednesday the 4th of July
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Letter from Robert Charles, Agent of the Province of New York, to Governor Clinton.
[From N. Y. Col. MSS. in Secretary of State's Office, Albany, Vol. LXXVII, p. 106.]
LANSTERFIELDS London 13th June 1753
Sir
Upon the success I have had in opposing the Act of N. Jersey of which I have given a Particular Account in my Letters to M' Speaker, to which I pray you to be referred I think it necessary to apply myself to you, as one able to judge well and soundly for the Publick, and to lay before you what may not so properly be communicated to many.
I have acquainted M' Speaker with the Use made of a Certain Letter whereof your Brother will furnish you with a Copy. I think I can Easily guess at the Adviser & Penman of it the Injury resulting to the Publick from such advice may possibly at a proper time deserve publick Consideration.
The Injury that may be done to Individuals from ye Endeavour to Expose the Minysinck Patent & other Grants to a ministerial Revision herewith likewise require Attention. The Book produced on this Occa- sion consisted of a Collection of Variety Papers, Draughts & Maps, authenticated on the Oath of James Alexander Esqr. Part of this Oath was read, & the Clerk reading further than a Particular place pointed out to him, I think there is the Oath of R. Hunter Morris Esq", likewise in proof of this Collection Some Copies. of Patents were read, expressing no number of Acres granted & of others where the Bounds are left indefinite, & Maps were shown to illustrate these Grants, of the Validity of which I soon perceived Doubt came to be entertained but that was not the
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Business of the Day tho' it might be the kind Intention of those who had thus staged them for publick Review. I intend to come at a Copy, if possible, of this whole affidavit tho. I doubt whether it will be granted; but as the Valuable Collection Contained in this Book is under the Seal of New York with a Certificate of the Governor prefixed, I apprehend some Entry must be made hereof in the Secretary's Office, or stand upon some Record in Your Government which would be well worth searching, for I apprehend that a thorough disquisition into this Affair upon the Spott would bring no Credit to the Compilers of this Collection
The clandestine Entry on the Records of your Gov- ernment of the Return of the Jersey Survey 25 years after the Transaction in Opposition to the Proceedings in Council for annulling Same should likewise in my humble Opinion be enquired into & if it can be legally done that Entry ought to be Expunged.
The Act of New Jersey being now set aside it may be a Question whether on the Offer I have made in behalf of New York joyn in a Commission under the Great Seal for running the Partition Lines the Jersey Proprietaries will come into the Proposal, for possibly they may still insist on the Validity of what was done in 1719. tho' it has received no Confirmation from the Crown I on the other hand will joyn in no Commission unless all the Boundaries are left to be ascertained on the Foot of the Original Grants I have been surprized to find the Notion so generall in your Colony that the Latitude of 41 and 40, & not the Branch of the Dela- ware, supposed to lye in that Latitude, is the Northern Boundary of Jersey. The Petition of divers Persons to M' President Schuyler in the year 1719 in opposition to the Jersey Proprietaries Considers it in this Light. Gov! Hunter & Council, who joyned in a Memorial in answer to the objectons made against the Confirma- tion of your Act of 1717, Consider it in like manner.
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I could wish that you would review these Proceed- ings, and as in the Petition mentioned is made of divers Maps & Draughts it would be well that they Could be Come at and Examined : I have had none sent me that would bear publick View & have therefore been obliged in a great measure to grope out my own way.
From the Researches I have made, it is evident to me that about the time of these Grants Places & remarkable Land Limits were all laid down much more Northerly than later Observances have placed them, this hold true with respect to the Forks of the Dela- ware, and as that River in my Opinion was then but little Known beyond that great and remarkable Divi- sion lay in 41 & 40; I have indeed yet mett with no authentic old Maps that fully establish this Construc- tion but a modern one taken from ancient one has come into my hands published by Direction and under the Inspection of M' Paris Solicitor for M' Penn in the Dispute between him and Lord Baltimore (now Solici- tor for the Jersey Interest) with a View to M' Penns Cause; this is said to be " a map of Virginia according "to Capt John Smiths Map published anno 1606 Also "of the adjacent Country called by the Dutch Niew By "Niderlant anno 1630 By John Lenex 1735." which map the only remarkable Division of Delaware there called River May after that of Skuilkill below Philadelphia is there expressly laid down in the Very Latitude of 41 & 40 New York then Called New Amsterdam being laid down in 41 D. I think I shall be able to trace the Source from where this Map was taken & besides my Searches here I have [sent] into Holland to find out the Draughts and Maps which the Amsterdam Company had of this Country at the time it was surrendered to the Crown.
If this Exposition of the boundary can be maintained the Jerseys will be pared very considerably and to strengthen this Exposition I hope it may be made out
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that beyond the Forks the River was never called Dela- ware but Fishkill on which head I send you a few con- cise thoughts which I drew up and put into the hands of some friends I am aware that an Objection still lies behind vizt that as the Grant by latitude a more north- ern Boundary on Delaware than on Hudsons River it must appear strange to make that on Delaware more southerly, as the Forks are said by modern Observation to lye nearly in 40 & 40 This has its Difficulty, but as the Latitude on Hudsons River admits of no dispute, it must be contended that the Branch of Delaware and not the Latitude by which that Branch is described is the true and only Northern Boundary and that the Date of Grant is limited by Delaware River.
It will give me great Pleasure to have your thoughts on this Subject as well as on the proper Method for executing the Commission that may be issued. Much will depend on the Choice of able men for that Pur- pose. The Jersey Proprietaries spare neither Cost or Pains to carry their Point & I hope your Governm. will shew themselves Equally resolute to maintain theirs.
With this Letter committed to Your Brothers Care, I hope you will find your son & him returned in good health. I take leave to depend upon your good Offices in my behalf & assuring you of the sincere and perfect Esteem which I truly entertain of you am most heartily Dear Sir
Your obliged & most obdt. humble Servant
R. CHARLES
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Argument that the Forks of the Delaware are the true limits of New Jersey on the north.
[From N. Y. Col. MSS. in Secretary State's office, Albany, Vol. LXXVII, p. 107.] That the Forks of Delaware are the Ne-plus ultra of the Northern Boundary of New Jersey-And that the Latitude 41 Deg & 40 M. on Fishkill River is an erroneous Boundary, is evident.
1st Because King Charles's Grant to the Duke of York is confined to Delaware Bay & River where that Bay & River do not exist, this Grant cannot operate. Now all the Lands from the Forks of Delaware to the Latitude of 41 & 40 on Fishkill River (a Distance of about 70 Miles on a straight line) are manifestly not on the Delaware River. For this River is not formed till the Conjunction of the two Streams at the Fork, there Delaware River begins, which Exposition is sup- ported even by our adversaries, for the Return of the Jersey Survey expressly says that the Fishkill is the biggest & chiefest Stream that forms the River Dela- ware.
2dly Because the King's Grant to the Duke giving him no Lands lying on Fishkill River the Duke could grant none to the Proprietaries of Jersey
3ª!y Because by the Duke's Grant to these Proprieta- ries the Branch itself and not the Latitude is the Northern Boundary the Latitude is only descriptive of the Branch which is said to lye in 41 & 40 & the Boundary is as far as this Branch but not up the Branch or to any part of it.
4thly Because the Forks of the Delaware are a most remarkable natural Boundary which at the time of the
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Grant might be well known & therefore referred to tho' there might be a mistake of the Latitude in which they were thought to lye.
5thly Because these Forks by the ancient Geography of the Country (only Guide to the Grant are laid down in 41 Deg. & 50 minutes which clearly made out must putt an End to the Controversary.
Note-These Forks by modern Observation lye al- most exactly a Degree to the Southward to Witt, in the Latitude of 40 & 40.
New York City lies nearly in the same Latitude of 40 & 40 tho' formerly laid down in 41 Deg.
By confining the Northern Boundary to these Forks instead of the Latitude in which they were thought to lye a more natural and consistent Boundary is Estab- lished, than that monstrous One contended for by the Jersey Proprietaries, which on the face of every Map must appear unnatural and absurd.
Letter from the Lords of Trade to Governor Belcher -desiring him to give all possible assistance to
the Missionaries for propagating the Gospel in New Jersey.
[From P. R. O. B. T., New Jersey, Vol. 15, p. 384. |
WHITEHALL June 25th 1753
To Jonathan Belcher Esq! Governor of New Jersey
Sir
A Petition having been presented to Us, by the Agent for the Society in Scotland for propagating Christian Knowledge, complaining that M' John Brain- ard a Missionary settled by the said Society at Bethell
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in East Jersey, has been molested and obstructed in the Execution of his Mission by some of His Majestys Subjects in that Province, and particularly by the Indian Traders, who had pursuaded the Indians that he was sent by crafty men with a view to bring them into a snare and finally deprive them of their Country and Libertys; We desire you will make particular En- quiry into this Affair, and take the most effectual Measures for the Security and Protection of the said Missionary, or any other which may be sent by the said Society to settle within the Province of New Jersey, and for preventing and restraining the Indian Traders from any ways molesting or obstructing the said Missionary, and from such false and injurious In- sinuations to their prejudice. And We further desire, that you will give the said Missionary's all reasonable Assistance in the Execution of their Missions. So We bid you heartily farewell and are
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