USA > New Jersey > New Jersey as a colony and as a state; one of the original thirteen > Part 19
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her inability to dictate a policy. Her later Federal- ism was as much a leaning toward the preserva- tion of her aristocratic form of State government as toward any overweening desire to participate in a constitutional union, although when the oc- casion arose the State did so with excellent grace.
One of the first acts definitive of statehood was the creation of a court of admiralty, the trib- unal to be established by authority of the govern- or or council. This was upon October 5, 1776. As early as January of that year the capture of the British store ship " Blue Mountain Valley," off Sandy Hook, had led to the creation of a tem- porary court of admiralty. Upon the 5th of De- cember, 1778, the New Jersey Legislature, under the stimulus of a recommendation from Congress, enacted a law providing for modes of practice, and prescribing a fee-bill; the officers of the court were defined to be a judge, register, marshal, proc- tors, and advocates. On December 18, 1781, fur- ther legislation provided among other matters a seal " with the Device of an Anchor and Thirteen Stars on the Face of it, and a Legend around the Border with these Words: 'Admiralty Seal New Jersey.'" This seal is probably lost and no im- pressions are known to exist. This act was revised in 1782 and finally repealed June 3, 1799. Under the act many prizes of war were sold, as advertise- ments in the newspapers of the day indicate.
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The utter hopelessness of securing any encour- agement from a Congress which had nothing to give caused New Jersey to attempt to regulate her own commerce and to experiment upon new and hitherto untried lines. Each step, now so evident, was then a step in the dark, a groping for some plan whereby trade could be attracted to a State whose natural advantages have proved to be almost limitless. The period of the con- federation presents a number of these schemes, concerning which there is to-day but little infor- mation to be obtained, save from the pages of the acts of the Legislature. The movement toward the self-adjustment of commercial interests car- ries one well into the early days of the Revolution. Here, rather than stimulating trade, the acts passed under the pressure of military needs tended toward the restraint of mercantile association.
The almost constant presence of the Anglo-Hes- sian army upon the soil of New Jersey during the early years of the war led to a conservation of nat- ural and artificial products. To protect her naval stores, and to prevent the exportation of pitch, tar, and turpentine, New Jersey had passed re- strictive legislation as early as September, 1777, which act was repealed in 1781. In March, 1777, the distilling of wheat, rye, and other grain was forbidden, while in that year as well as in 1778 the prices of certain articles of produce, manufac-
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ture, trade, and labor were limited. An attempt was made to prevent " forestalling, regrating, and engrossing " during these years-acts which con- tain the germs of the so-called " anti-trust " legis- lation of later times.
These acts with others relating to economico- military affairs having been repealed in 1782, New Jersey in 1783 entered into an agreement with Pennsylvania concerning their respective jurisdic- tions over the River Delaware. From the north- west corner of New Jersey to the point where the circular boundary of Delaware touches the river the Delaware was declared to be a " common highway," each State regulating the fisheries " an- nexed to their respective shores," that the same be not " unnecessarily interrupted during the sea- son for catching shad." In capital and other of- fenses, trespasses, or damages committed on the river the juridical investigation and determination was vested in the State where the offender was first apprehended, arrested, or prosecuted. A con- current jurisdiction was further limited. In cases where vessels were at anchor or aground such ves- sels were considered as being exclusively within the jurisdiction of the nearer State. A distribu- tion of "all islands, eylots and dry land within the bed and between the shores " of the river from Trenton to the Delaware State boundary was also made. Later a similar arrangement was made
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concerning the islands between the extreme north- west boundary of New Jersey and the City of Tren- ton.
Having adjusted the jurisdictional rights in the Delaware, Perth Amboy and Burlington were de- clared to be free cities for twenty-five years after October 1, 1784. To encourage commerce all for- eigners, mariners, manufacturers, and mechanics who removed to these cities and resided there for one month, following their occupation and voca- tions, were esteemed freemen and citizens. An exception was made in the case of Tories " guilty of licentious cruelties in plundering or murder." All goods immediately imported, except slaves, were declared to be free from all duties and im- posts, except as affected by acts passed to raise a revenue for the use of the United States. Mer- chants in these free cities were exempt from taxes upon their stock or ships, the State retaining the right to pass a prohibitive tariff upon " any goods, wares or merchandize * which may prove injurious to and discourage the manufac- tories of this State."
During the year 1784 both Perth Amboy and Burlington were incorporated as cities. Acts erecting these corporations were passed upon December 21st, and grew out of an aroused spirit of the Legislature. In the preamble of the statute establishing Perth Amboy it is stated that "the
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prosperity of trade requires the collection of mer- chants together in sufficient numbers in order that the union of their force may render them compe- tent to great undertakings, and that the variety of their importations and their wants may always furnish to the purchasers and to the sellers a se- cure and constant market." Thus in giving a spe- cial form of government merchants attracted by "peculiar immunities and privileges" could se- cure for a "definite duration the entire profits of their commerce without burden, abatement, or uncertainty." Upon the 1st of September, 1784, "the town of New Brunswick " was also incor- porated with special privileges.
Owing to the discouragement of manufactures, dueto the general prevalence of sheep-killing dogs, the Legislature in May, 1787, imposed a tax on the owners or keepers of dogs, while at the same time an effort was made to encourage good roads by de- fining the track of "waggons and other wheel- carriages," and imposing a penalty for violations of the statute.
Turning toward the interests of the tidewater section of New Jersey, an important act was passed in 1788 enabling the owners of tidal swamps and marshes to improve their property, and compelling those who owned meadows already banked and held by different persons to keep such improvements in good repair. From this act is
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traceable much of the policy of reclamation of waste land, which later developed large dairy in- terests in the southern portion of the State. In the act the principle of a limited corporation is quite evident, much more so than in any previous legislation, as well as traces of the doctrine of eminent domain, later so generously exercised by railroad and canal companies. In 1789 cranber- ries were first protected among natural products, a penalty being imposed upon those who gathered the berries on lands not their own between June 1 and October 10. The reason for this action ap- pears in the legislative declaration that cranber- ries might be a valuable article of exportation.
Thus in feeble and divergent ways-from the erection of free cities to the protection of cran- berries-New Jersey provided for her own com- mercial interests at a time when even the friends of independency stood terrified at what might be the outcome of the wonderful expedition that had been taken into the new and unexplored land of liberty, whose attractive vistas of peace and pros- perity were ever shadowed by the clouds of polit- ical uncertainty and economic despair.
DEPARTURE OF THE BRITISH TROOPS.
CHAPTER XXIV
NEW JERSEY AND THE FEDERAL CONSTITUTION
I T WAS in the ancient City of Annapolis, upon the 11th of September, 1786, that a number of stout hearted men-delegates from the States of Virginia, Delaware, Pennsylvania, New York, and New Jer- sey-met "to take into Consideration the Trade and Commerce of the United States," and after a session of three days dissolved, not thinking it "advisable to proceed on the Business of their Mission."
It was from the joint agreement made between Maryland and Virginia, upon March 28, 1784, the object whereof was the regulation of navigation and trade upon the Potomac as well as the adjust- ment of the boundary line between the two States, that there developed the final expression of that movement which had for its object the formation of a more perfect union.
Of the States represented none entered with more alacrity into its spirit than did New Jer- sey. Tinged with inherited suspicion and jealousy, all the States represented, except New Jersey, had instructed their commissioners " to take into Consideration the trade and Commerce of the United States, to consider how far an uniform system in their commercial intercourse and regu- lations might be necessary to their common inter- est and permanent harmony," and to report to the States an act which, when unanimously ratified,
[Vol. 2]
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would enable Congress " to provide for the same." But New Jersey, in accordance with traditions, harassed by powerful commercial rivals, and with prophetic foresight, not only embraced the subject of trade regulations, but instructed her commissioners, who were Abraham Clark, Will- iam Churchill Houston, and James Schuurman, to consider " other important matters," and to report an act that would enable Congress to provide for the regulation of trade, and in a yet more liberal spirit " for the exigencies of the Union." These commissioners had been appointed by joint meet- ing of the Legislature, March 21, 1786.
Between the strict limits of their sphere of ac- tion and the wider range of New Jersey's instruc- tions the delegates wavered. They realized that the commissioners from New Hampshire, Massa- chusetts, Rhode Island, and North Carolina had been appointed, but were not present, and that Connecticut, Maryland, South Carolina, and Georgia had remained silent; that the representa- tion was partial and defective, and that the opin- ion of all the States should be had; yet they recog- nized that the plan of New Jersey in extending the powers of the delegates was an improvement upon the original idea. The defects in the confederation were many; some obvious, some more subtle. That a full expression of opinion might be had it was recommended that a convention of all the
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States be held in Philadelphia on the second Mon- day in May, 1787, to devise such provisions as shall render the "Constitution of the Federal Government adequate to the exigencies of the Union," and report such an act when agreed upon by Congress and the States as would secure the desired end.
It was upon the 21st of February, 1787, that Con- gress recommended to the States the appointment of delegates to attend a convention " for the sole and express purpose of revising the Articles of Confederation," which to Congress appeared to be " the most probable means of establishing in these States a firm national government." In the mean- time, in spite of the last gasp of the Congress, be- fore it lapsed into premature senility and became moribund, New Jersey, in her refusal to contribute $136,000 to the national treasury upon the request of Congress, dealt the death-blow to the confeder- ation. Consistent in her position that Congress should alone regulate foreign trade, the State held that inasmuch as the other States had nominally refused to be bound by the federal impost she could assume an independent attitude, nor could the arguments of the congressional committee, composed of Charles Pinckney, Nathaniel Gorham, and William Grayson, alter the determination of the Legislature. It was then that Pinckney, act- ing with rare diplomacy upon the position hereto-
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fore taken by New Jersey, urged that the common- wealth join in " a general convention of the States for the purpose of increasing the powers of the federal government and not to precipitate a dis- solution of the union by refusing to carry it on."
For such a position New Jersey was ready to as- sume the aggressive. Throughout the State the sentiment in this month of November tended to- ward a breaking down of existent conditions, al- though no man knew what would come in their place. But anything was better than drifting on the tide to certain ruin. Turning to what may be termed the popular side of the argument, one finds in Isaac Collins's New Jersey Gazette for No- vember 6, 1786, a reprinted communication from Arnett's New Brunswick Gazette signed " Nestor," containing the stock but comprehensive argu- ments advanced in New Jersey against the articles of confederation.
The objections were classified under four heads, of which the first was the deficiency of coer- cive power; the second a defect of exclusive power to issue paper money and regulate commerce; third, in vesting the foreign power of the United States in a single Legislature; and, lastly, in the too frequent rotation of its members.
New Jersey herself had seen the evils of which "Nestor" complained. Individually, perhaps not entirely consciously, New Jersey had for ten years
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sought a more perfect union, not only for the good of all, but, as a small State, for her own protection. In an address delivered before the New Bruns- wick Historical Club upon the centennial of the adoption of the constitution of the United States by New Jersey, President Austin Scott, of Rutgers College, showed that the New Jersey Supreme Court, in session at Hillsborough, first de- clared the doctrine "that the judiciary has the right to pronounce upon the constitutionality of the laws." In an opinion rendered as well for himself as his associates by Chief Justice David Brearley, he established the principle of that "su- preme function of final arbitration between the two forces "-the general government and the States. Along the line of argument for coercive power was another step taken by New Jersey in 1780. Virginia had prepared for the sale of crown lands which New Jersey contended had become vested in Congress for the use of the Federal Re- public. Such was the term used in the " Remon- strance " sent by New Jersey to Congress, and which in the opinion of President Scott and other historians is the first occasion where the phrase was used. In the "Remonstrance " occurs the expression: "that the Republic will be secured against detriment and the rights of every State in the Union be strictly maintained," a spirit of polit-
MrLina.
William Linn, D.D., president pro tem. of Rutgers College 1791-94 ; b. Shippensburg, Pa., Feb. 27, 1752 ; grad. Princeton College 1772; ordained by Donegal presbytery 1775; chaplain Continental army 1776; president Washington College, Maryland, 1784-85 ; pastor Collegiate Dutch Church, New York, 1786- 1805 ; regent University of the State of New York 1787-1808 ; first chaplain United States House of Rep- resentatives 1789 ; d. in Albany, N. Y., Jan. 8, 1808.
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ical altruism toward which the judicious use of coercive Federal power must lead.
In " Nestor's " prayer that an exclusive power to coin money be vested in a federal government, he must have had in mind New Jersey's debased " horse head " coppers, her ragged " fiat " paper bills, the clipped and counterfeited foreign coins that were the natural results of efforts of thirteen incapable States attempting to regulate a matter which should have been left to the collective judg- ment of all. For the greater principle of regulat- ing commerce New Jersey had long contended that the power should lie in Congress. For this she had striven in 1777, her Legislature demand- ing that members of Congress take an oath of fealty to the United States. But the federative principle that would vest in Congress the power to dispose of the western domain and to regulate trade with foreign nations was yet too weak, and New Jersey, upon the 25th of November, 1778, ratified the articles of confederation without amendment. Again in 1780 John Witherspoon, whose true position as an economist and states- man had not even yet been recognized, “ revived one of the amendments to the confederacy pro- posed by New Jersey two years before, and moved to vest in the United States the power of regulat- ing commerce according to the common interest." Ml. Le This attitude of Witherspoon was due to the posi-
David Brearley Paterfine. Jona: Dayton
SIGNATURES OF THE NEW JERSEY DELEGATES TO THE
FEDERAL CONSTITUTION.
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tion taken by New York and the New England States-that the general government be charged with authority to collect taxes, or from duties to secure a fixed revenue. From the States Congress desired power to levy a five per cent. duty upon foreign imports, to which request New Jersey re- sponded promptly, as she did at the end of the Revolutionary struggle when Congress, by a gen- eral revenue act, sought to pay her pressing debts.
In the demand that the power of Congress be divided into two branches " Nestor " was follow- ing the precedent set by the council and Assembly of New Jersey. Territorially he would have each State represented by a delegate in the upper house, while in the lower house, representative of population, each State could select " two, three, or four delegates chosen annually." The President was to be chosen on joint ballot and, with a "privy council," possess the power of appointing United States officials. These ideas were then novel, as applied to any possible federal system, as was the doctrine of retention of officeholders upon a merit system.
" Nestor " also urged the establishment of a " federal university " for the study of subjects con- nected with government, particularly history, in- ternational law, civil law, municipal law, com- mercial principles, all matters connected with of- fensive and defensive war, as well as political
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economy. The country should be tied together by means of the postoffice. " This is the true electric wire of government * * for the purpose of diffusing knowledge as well as extending the liv- ing principle of government to every part of the United States."
Similar had been the line of reasoning pursued officially in New Jersey in the instructions to her delegates in Congress as early as March 1, 1786, and again upon November 24th of that year. Herein they were instructed to vote against every measure for the promotion or se- curity of the commerce of the United States, whereby any one State would be more largely benefited than would New Jersey or the United States, as well as to cast their votes against any " Ordinance, Resolution, and Proceeding " tending to charge New Jersey with any expense in acquir- ing or defending crown lands, when any State or States, and not the Union, should be benefited. In this connection New Jersey protested against the cession for a term of years " of the entire Navi- gation of the River Mississippi to the Spanish Court," believing that "the Value of the west- ern Country, on the Sales of which we rely for the Discharge of our numerous Debts, is in some Degree dependant upon the free Navigation of this important River," a view as accurate as it was far-sighted, but greatly in advance of the general
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trend of public opinion in the uninformed and in- different East.
Thus having instructed its delegates in Con- gress, the State turned upon the 24th of November to the appointment of its delegates who were to take so active a part in framing the federal consti- tution.
Under a resolution of the House of Assembly David Brearley, William Churchill Houston, Will- iam Paterson, and John Neilson were selected to meet with other commissioners in Philadelphia, during the succeeding month of May. These dele- gates, under their instructions, which sound strangely like the instructions given by New Jer- sey to the commissioners sent to Annapolis, were appointed " for the Purpose of taking into Consid- eration the State of the Union as to Trade and other important Objects and of devising such further Provisions as shall appear necessary to render the Constitution of the federal Government adequate to the Exigencies thereof." Upon the 23d day of November, the date of their appoint- ment, these delegates to the convention were com- missioned by Governor Livingston. Before the convention met, however, the personnel of the New Jersey delegation underwent a change. John Neilson, distinguished for his services in the American Revolution, retired, and in his place Governor William Livingston and Abraham Clark
John Neilson, b. New Brunswick, March 11, 1745; d. there March 3, 1833 ; merchant in New Brunswick 1769-75 ; brigadier-general 1777; delegate to Conti- mental Congress 1778-79 ; member state constitutional convention ; member State Assembly 1800-01.
4.
JOHN NEILSON.
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were commissioned upon May 18, 1787, while un- der another commission Jonathan Dayton was added to the delegation upon June 5 of the same year. Owing to illness Abraham Clark did not par- ticipate in the proceedings of the convention, and for the same cause William Churchill Houston took but a minor part. Neither signed the com- pleted federal constitution, Clark being opposed to any drastic changes, had he been physically able to affix his signature.
Although the date fixed for the opening ses- sion of the convention was May 14th it was not until May 25th that a quorum of seven States as- sembled and chose George Washington as its president.
The New Jersey delegation, as finally chosen, was brilliantly representative. At its head was William Livingston, eleven times governor of New Jersey. Scarcely less conspicuous were David Brearley, twelve years chief justice of New Jersey; William Churchill Houston, member of Congress and professor of mathematics and nat- ural philosophy at the College of New Jersey; William Paterson, whose public career had for its rewards the attorney-generalship, senatorship, and governorship of New Jersey, a signer of the Declaration of Independence, and lastly associate justice of the United States; and Jonathan Day- ton, twice speaker of the House of Representatives
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and United States senator. Of these all were graduates of the College of New Jersey except Governor Livingston, who received his degree from Yale. Abraham Clark had been one of the signers of the Declaration of Independence, and was conspicuous as a popular leader of anti-Fed- eralistic tendencies.
The 9th of June, 1787, was a memorable day in the history of the convention. In the opinion of an eminent American historian, to which all other constitutional writers have assented, this was the day upon which the " great debate of the session began." The Virginia delegates had early formu- lated a plan, not for a new government, but for a strong consolidated union. The project leaned toward centralization, and, as elsewhere ab- stracted, provided that each State's suffrage in Congress should be proportioned to the sum of money it paid into the treasury, as quota, or to the number of free inhabitants of its soil; the people should elect members of one branch of Con- gress, the State Legislatures the other; the na- tional executive should be chosen by the national Legislature; a federal judiciary should hold of- fice during good behavior; and a republican form of government and right of soil should be guaran- teed to each State.
The State of New Jersey favored certain es- sential elements in a federal union, but like
Abraham Clark, signer of the Declaration of Independence ; b. near Elizabethtown, N. J., Feb. 15, 1726 ; surveyor and real estate agent; sheriff of Essex County and clerk of the Assembly ; member committee of safety 1776; delegate to Congress 1778-80 and 1787-88 ; member Legisla- ture, 1783-87 ; member of Congress, 1791-94; d. at Rahway, N. J., Sept. 16, 1794.
Abra Clark
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another small State, Delaware, was opposed to any method whereby proportional representa- tion would limit her influence. Connecticut and New York leaned toward the old confederation, and these States, with Luther Martin, of Mary- land, made common cause in the presentation of a plan which would give a federalistic tone to the correction and enlargement of the articles of con- federation. This State had declared for a change, but in its demand had not clearly foreseen the power of the larger States. Thus it was that Pater- son, upon the 15th of June, laid before the dele- gates the " New Jersey Plan," containing some of the features of the Virginia plan, and yet which finally, though defeated, furnished in compromise some of the most important elements in the con- stitution.
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