USA > New Jersey > Documents relating to the colonial history of the state of New Jersey, Volume VIII > Part 11
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Your very loving Friends and humble Servants DUNK HALIFAX, CHARLES TOWNSHEND, JAMES OSWALD, J. GREENVILLE.
Question referring to the Boundary between New York and New Jersey answered.
[From N. Y. Col. MSS. in Secretary of State's Office, Albany, Vol. LXXVIII, p. 11.]
THOUGHTS UPON THIS Q UESTION
How shall the Province of New York take the Bene- fit of the Reports of the Lords Commissioners of Trade and Plantations made to his Majesty on the 18th July 1753 ?
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In answer I observe first, That according to the Tenour of their Lordships Report nothing has been done to bind the Crown in the Points of Jurisdiction, Seignory, or Property as to its Right of and in the Province of New York, nor can be done, unless by Commission issued judicially to determine its Rights in these Points or agreements between both Colonies Confirmed by Royal assent.
Secondly, That all the acts of New York and New Jersey and Governor Hunters Commission, the Tripar- tite Deed, and the observations of Latitude and Random in 1719, and all Acts of New Jersey, or Even of New York (having been Transacted without the Participation of the Crown, either at that time or be- fore or since are not Conclusive or binding either upon the Crown or Parties Claiming in right of the Province of New York or New Jersey but the Controversy be tween both Provinces is reduced by their Lordships Report to just the same state as if the Dukes Grants to John Lord Berkley and Sir George Carteret had not been a Year old. This Second observation is but a Consequence of the first, but deduced with a more par- ticular and pointed application.
Thence-I query, whether it will not be the Interest of the Province of New York to take the first opportu- nity to declare it's consent to joyn in Application to his majesty with the Province of New Jersey for a Com- mission to ascertain that Line and to bear one half of the Expence.
It seems to be the Interest of both Provinces to these Ends-
1st To preserve the public peace.
2dly To ascertain the Rights of Jurification & Gov- ernment.
3dly To Fix the Limits of the Seignory and Prop- erty of the Crown.
4th The Private Property of the Lands on each Side.
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It seems proper to be done speedily because possibly,
1st New Jersey will now think it their Interest to Consent to it tho' every mention of this private Con- versation for several Years past has been Treated with · Disdain.
2dls. If they refuse it, it will Enable New York to retort the Charge of Delay on New Jersey and lay the Consequences of it at their Door.
3dIs It may prevent their attempt (pursuant to the Memorial of the New Jersey Proprietors to their Gov- ernours of 20th November 1753 to Extend their Juris- diction to the random line of 1719, which if opposed will probably occasion Bloodshed or if not opposed will put a great number of Possessions within this Province in the Power of their Courts and doubtless occasion an Ejectment of the New York Tenants against whom they have got Judgements.
4thly It seems that at no time can be more favorable to New York than the present time, while the weight of their Lordships Arguments will be more sensibly felt both at home and within this Province than Prob- ably hereafter when matters are more * * and the Present Impression abated or worn out.
5thly A Principal reason is this that New York is less attentive to its Interest than New Jersey and it is Evident that within a few Years they have Gained much Ground of New York and with the utmost Art vigilence and Expense are settleing themselves along that Line that they pretend to have settled by their observations in 1719.
6thly New York can hardly imagine any Conjuncture more favorable to its Interests than the present when probably their lordships Reasons will have their full weight with the Commissioners and perhaps may have some Influence on the Commission itself which may direct the Line to be run from the Delaware River where that branch joins the River that hath an Ex-
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tension to the Latitude 41° & 40m and if two or more branches extend to that latitude then from the North- ermost of them to the Latitude of 41° on the Hudsons River. Whether the legal sense of the Words, to the Branch, or as far as the Branch or whether the term of 41: 40™ on the Branch expresses the Term ad quem from Cape May, and a quo to Hudsons River may as well be determined in England as in America, And if this point pass in favor of New York and the Com- mission so direct ? the Commissioners will have little more to do than to fix one Latitude and one Line The term at the Forks will be fixed by Inspection and it will not be very material which of the Forks is the Northermost Branch and no Branch is pretended more Northerly than these.
As to the Commissioners. Care should be taken that neither New Hampshire Massachusets Bay, Con- necticut nor Pensylvania furnish any of them.
Representation of the Lords of Trade to the King- relative to the repeal of an act passed in 1747-48 for running a partition line between New York and New Jersey.
[From an official copy among Boundary Papers of W. A. Whitehead, Vol. II, No. 47.]
TO THE KINGS MOST EXCELLENT MAJESTY
May it please your Majesty
WE have lately had under Our Consideration an Act passed in your Majesty's Province of New Jersey in 1747-8 intitled,
An act for running and ascertaining the line of Parti- tion and Division betwixt this Province of New Jersey and the Province of New York.
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And having been attended by M' Paris, Sollicitor in behalf of the proprietors of the Eastern Division of New Jersey, with M' Hume Campbell and M: Henley his Council in support of the said Act, and by M. Charles, Agent for the province of New York, with M' Forrester and M! Pratt his Counsel against the said Act, and heard what each party had to offer there- upon, We beg leave humbly to Represent to your Majesty,
THAT the Considerations which arise upon this Act are of two Sorts, Vizt such as relate to the principles upon which it is founded, and such as relate to the Transactions and Circumstances which accompany it.
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 sep- erate Capacity can neither make nor Establish for de- ciding 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 those Grants are doubtful and differences Arise upon the Construction or upon the matter of them, We humbly 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, And it ap- pears to us, that the legal method of proceeding must be derived from the Immediate Authority of the Crown itself, signified by a Commission from your Majesty under the Great Seal the Commission of sub- ordinate officers and of derivative powers being neither Competent nor adequate to such purposes. To judge otherwise would be, as We humble conceive, to set up ex parte Determination and Incompetent Jurisdictions in the place of Justice and legal authority,
11
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IF THE ACT OF NEW JERSEY cannot conclude other parties, it cannot be Effectual to the Ends proposed: and that it would not be Effectual to Form an abso- lute Decision in this Case, the Legislature of that pro- vince seems Sensible, while it endeavours to leave to your Majestys Determination the Decision of one point relative to this matter and of considerable Importance to it, which proves your Majesty cannot derive from them, without their having the power to Establish the thing itself without the Assistance of your Majesty.
As WE ARE OF OPINION that the present Act without the Concurrence of other parties concerned in Interest, is unwarrantable and ineffectual. We shall in the next place consider what Transactions & Proceedings have passed towards obtaining such Concurrence.
THE parties Interested are your Majesty and the two provinces of New York and New Jersey. Your Maj- esty is Interested with respect to your Sovereignty Seigneurie and Property, and the said provinces with respect to their Government and Jurisdiction.
WITH regard to the Transactions on the part of New York, We beg leave to observe, that whatever agree- ments have been made formerly between the two pro- vinces for settling their Boundaries whatever Acts of Assembly have passed, and whatever Commissions have been issued by the respective Governors and Governments the proceedings under them have never been perfected, the work remains unfinished, and the Disputes between the two provinces Subsist with as much Contradiction as ever. But there is a Circum- stance which appears to us to have still more weight, namely that those Transactions were never properly warranted on the part of the Crown: The Crown never participated in them, and therefore cannot be bound with respect to its Interests by proceedings so author- ized.
THE Interest which your Majesty has in the Deter-
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mination of this Boundary may be considered in three Lights: either as Interests of Sovereignty respecting mere Government, of Seigneurie which respect Es- cheats and Quit Rents, or of property as relative to the soil itself, which last Interest takes place in such Cases where either Your Majesty has never made any Grants of the Soil or where such Grants have by Actual Es- cheats reverted to Your Majesty.
WITH regard to the first of these Interests viz, that of Sovereignty, it has been alledged to Us in Support of the Act, that it is not materially Affected by the Question, as both provinces are under Your Majestys Immediate direction and Government: But they stand in a very different light with respect to Your Majestys Interest in the Quit Rents and Escheats, in both which articles the Situation of the two provinces appears to us to make a very material alteration. For altho' the province of New Jersey is not under regulations of propriety or Charter with respect to its Government, yet it is a proprietary province with respect to the Grant & Tenure of its Territory, and consequently as New York is not in that predicament, the Determina- tion of the Boundary in prejudice to that province will affect your Majestys Interest with respect to the Ten- ure of such Lands as are concerned in this Question, it being evident that whatever Districts are supposed to be Immediately held of Your Majesty in New York, by being Supposed to be Included in the Limits of New Jersey, will Immediately pass to the proprietors of that province and be held of them; by which means Your Majesty would be deprived of your Escheats and the Quit Rents would pass into other Hands.
To obviate this objection it has been alledged that the Crown has already made absolute Grants of the whole Territory, that can possibly come in Question under the Determination of this Boundary, and re- served only trifling and Inconsiderable Quit Rents on these Grants. But this Argument does not seem to
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us to be conclusive, since it Admits an Interest in your Majesty, the Greatness or Smallness of which is merely accidental, and therefore does not affect the Essence of the Question, And we beg leave farther to observe, that in the Case of Exorbitant Grants with Inconsiderable Quit Rents and where consequently it may reasonably be Supposed that the Crown has been deceived in Such Grants by its Officers, Your Majestys Contingent Right of property in Vertue of Your Seig- neurie 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 mentioned without having previously received the Royal Direction and Instruc- tion for that purpose; and that a Commission issued without such authority can be considered; with respect to the Interests of the Crown, in no other light than as a mere nullity; and even with respect to New York we observe that the said Commission is Questionable, as it does not follow the Directions of the above men- tioned Act passed there in 1717 which Declares that the Commission to be Issued shall be granted under the Joint Authority of the Governor and Council of that province.
Bur it has been further urged that the Crown has since Confirmed these Transactions, either by previous Declarations or by Subsequent Acquiesence, and conse- quently participated in them so far as to conclude itself. We shall therefore in the next place beg leave to Consider the Circumstance Urged for this purpose.
IT has been alledged that the Crown, by giving Con- sent to the aforesaid Act passed in New York in 1717 for paying and discharging several Debts due from that Colony &c., included and bound itself with respect to the subsequent proceedings had under the Commission issued by Governor Hunter, But the View and purport of that Act appear to us entire and so dis . tinctly formed for the purpose of Raising Money and
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establishing Funds so various and so distinct from any Consideration of the Disputes Subsisting in the two provinces with respect to the Boundaries, that we can- not conceive a Single Clause in so long and so intricate 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 therefore can never be supposed to have thereby approved a Commission from another Author- ity which was at that time already issued and Carry- ing into Execution previous to such Assent.
WE further beg leave humbly to represent to Your Majesty, that the lines of partition and Division between Your Majestys province of New York and Colony of Connecticut having been run and Ascer- tained pursuant to the Directions of an Act passed at New York for that purpose in the Year 1719 and Con- firmed by his late Majesty in 1723, the Transactions between the said province and Colony upon that occa- sion have been alledged to be Similar to, and urged as a precedent and even as an approbation of the matter now in Question. But weare humbly of opinion, that the two Cases are materially and essentially different. The Act passed in New York in 1719 for running and Ascertaining the Lines of partition and Division between that Colony and the Colony of Connecticut Recites, "That in the Year 1683 the Governor and " Council of New York and the Governor and Com- " missioners 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
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"part of each Government who did actually agree, "Determine and ascertain the Lines of partition, " marked out a Certain 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 respec- "tive Governors, entered on Record in each Colony, " and in March 1700 approved and Confirmed by order " of King William the third in His privy Council and " by his said Majestys Letter to his Governor of New " York."
From this Recital it Appears to Us that those Tran- sactions were not only carried on with the participa- tion, but Confirmed by the Express Act and Authority of the Crown, and that Confirmation made the founda- tion of the Act passed by New York for Settling the Boundaries between the two provinces; of all which Authority and Foundation the Act we now lay before your Majesty appears to Us to be entirely destitute.
UPON THE WHOLE it appears to us, that the Act in Question cannot be Effectual to the Ends proposed that Your Majestys Interests may be materially affected by it and that the proceedings on which it is Founded, were not warranted in the first instance by the proper Authority, but carried on without the par- ticipation of the Crown. We cannot think it Advisa- ble to lay this Act before Your Majesty as fit to receive Your Royal Approbation-
WHICH is most humbly Submitted
WHITEHALL July 18th 1753
DUNK HALIFAX J. GRENVILLE JAMES OSWALD ANDREW STONE
A true Copy from the Original Representation of the Board of Trade remaining in the Council office
STEPH: COTTRELL
Witness DANL COXE
SAM: KEMBLE
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ADMINISTRATION OF GOVERNOR BELCHER.
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Letter from Governor Belcher to the Lords of Trade -transmitting several documents connected with the meeting of the Legislature of New Jersey in May and June, and commenting on the state of the Province.
[From P. R. O. B. T. New Jersey, Vol. 7, H, 28.]
ELIZABETH TOWN (N J) August 8th 1752
TO THE LORDS OF TRADE
May it Please Your Lordships
My last was on the 28th of May, since we? I have not had the Honour of any of Your Lordships favours, which I am always glad to receive, for my Instruction in the better Administration of the Affairs of this Government.
I herewith Transmit to Your Lordships, what past in a Session of the General Assembly of this Province, held at Burlington in May and June last * * *
Your Lordships will please to observe by them, what I urged relating to a Revisal of the Laws of the Prov- ince, as also in the Affair of Rioting, and the Assem- bly: Answer to these things, must plainly show, they had no Inclination at that time, to do any thing fur- ther about them.
I am glad to say to Your Lordships, that there ap- peared at this last Session, a much better Agreement and Harmony, between the Council & Assembly, then there had been for a long time, and among other Acts Your Lordships will See there was one past, making Provision for Payment of the publick debts of the Province, and for the future Support of the Gov- ernment, to the Month of May next.
I think, My Lords, that it is the General Consent of
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the Inhabitants that this Province, never was in a better State of Peace and Tranquility, then at this day, nor have I lately had any Account, of any Riotous Attempts in any part of the Province.
My Lords, I wish the Proprietors (and so I have told some of them once and again) wou'd bring forward their Actions of Trespass and Ejectment against such, as they think Illegally possess Lands, but they dont seem to incline to it, I have also mentioned to His Majesty Council, the making out a Peremptory Order, to the Kings Attorney General. to prosecute such, as have been Apprehended, and lye under Bonds, (as Rioters) but this the Council dont seem to fall in with, and so I am at a loss what further Steps to take, in these Affairs.
I have the Honour to be with Great Respect My Lords Your Lordships Most Obedient & Most Humble Servant
J. BELCHER
Letter from Ferdinand John Paris to Robert Hunter Morris-complaining of being left without assist- ance in securing the approval of an Act relative to the boundary between New York and New Jersey.
[From original draft among Paris Papers in N. J. Hist. Soc. Lib., Bundle H, No. 58.]
SURRY STREET LONDON 18. Aug 1753
TO ROB". HUNTER MORRIS ESQ! Sir
* * * I find my Self in such a Case, as I never was, in my whole life. Engaged in a matter of vast im- portance to the p'tys concerned, at such a Crisis as this, without power to represent them, without Instructions
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· what to do for them, without the proof of Facts, w'ch you might have supplyed, without one penny of provi- sion for the late very great expense, or that which is to ensue, without knowing how to write to you, without knowing who will be Bail or Security, on appealing agt the Lords of Trades Report, And yet must do Some- thing & that instantly too. Or otherwise, that Report will be confirmed, & (as I fear) much injury arise, thereby to your & my Principalls.
I had once resolved to do nothing at all, in it, but let it take its Fate as I was left in such an helpless Condi- tion, but, when I considered ye great importance of the m've, the regard I have, for Every Clyent, soon made me alter that Resolution.
I now enclose you a Copy of the Lords of Trade most extraordinary Report, agt the New Jersey Act for Set- tling the Bounds towards New York. That Report was dated the 18th of July last, and, instead of advis- ing the Crown, Singly, either to ratify, or to disallow, the New Jersey Act, It runs into so many extraneous matters, & comes to such Opinions, upon All those matters, that you did not expect & will be much Sur- prised at, when you see, and come to consider the Report.
The 19th of July the King referred that Rept to a Comtee of his Privy Councill.
On the 26th of July (w'ch was the first Comtee that was held, after that Refnce) I moved for leave to have out a Copy of that Rept, w'ch was ordered, accordgly
On Saturday the 28th of July, at near midnight, I got Out a Copy of it.
On Sunday the 29th of July, I had a Copy, imedi- ately, made for you, And early on Monday morning, the 30th of July, I sent that Copy, to yo" Lodgings & desired your directions what to do on ye occasion; but heard that you was gone out of Town, with yor Sister, on Sunday, the day before.
-
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That same Night, I forwarded that Copy, with a letter to you, hoping it might meet you, at Dover, but it was returned to me, by the post, again, with an Acco! that you was Sayled from thence.
From that time to the present, I have inquired of D' Cox, M' Stuart M' Catherwood, M' Furman, M' Barclay, & every other p'son I could think of, how to write, either to yourself, or to yo' Sister, but without Any Success.
In the mean time, the New York Agent who, it seems, knew you was gone, & imagined (as the truth really was) that I was wholly uninstructed, gave me a Notice, so early as on the 4th Instant (so great a hurry was never before known, in the like case) that he would move the Comtee of Councill, on the 7th Instant, to confirm the Lords of Trades Report, (I send you a Copy of the Notice, enclosed).
When the 7th of Augt came, you will Judge what a Case I was in; I was driven to do One, of two things, Either, to say that I had no Instructions to oppose the Confirma of that Report, In w'ch Case ye whole Report would have been that Instant, confirmed, by ye opin- ion of the Comtee of Councill, or else, to say that I would oppose it, & pray time to prepare a petition for that purpose.
I chose the latter, and thereby Stopt the Confir ma- tion then.
And I did so, for the reasons before mend & also because you had given me some very general Ordrs (before ever you saw the extraordinary Contents of the Report) to Oppose it either in M" Penns name, or in Ma" Lanes name (as the Leader in the West Jersey Societys Affairs) or, if neither of those could be done, then in yor own Name, but so, as not too much to of- fend ye Board of Trade.
I have, since, seen both M' Penn, & Ma" Lane, but find no inclinac'on in either of them to imbarque in
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such an expensive Affair, & of w'ch they know so very little.
So was obliged to propose a Petition, in the name of the Councill of Proprietors, agt the sd Report. That pet". I have layd before M' Hume Campbell, for him to Settle; And I enclose you a Copy of it just as I layd it before him; How, & in what Shape, it will come back, from him, I cannot tell you: Possibly, he will at least, alter such pts of it as set forth his own non attendance. I think I have dealt as tenderly as I could, with ye Lords of Trade (who are certainly mistaken in some facts) & so I have tranciently set forth in ye Drt of ye pet". w'ch I have prepared, but whether it comes up to yor Spirit, or intention, or whether I have sayd too much, or too little in yor opinion, is impossible for me to know; If I have erred in it, it has not been by de- sign, but from the Scituation I was left in, on w'ch Acco! I hope great allowances will be made, as indeed there should be.
While M' Hume is setling the drat of the Petic'on, I am hunting abot to see if M" Barclay, or any of yo' Friends will give the Security for costs required by the Standing Ord' of ye Councill Board, in all Cases where p'tys, who have been heard as the Board of Trade, pe- tic'on against their Reports & am in much doubt of finding any p'son to be such Security, tho' that is re- quired to be done, before even y' petic'on is to be rece'd.
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