USA > New Jersey > The New Jersey coast in three centuries; history of the New Jersey coast with genealogical and historic-biographical appendix, Vol. I > Part 9
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"And forasmuch as they are styled the absolute Lords proprietors ffrom hence, it absolutely granted and necessarily followeth that all such inhabitants as lives upon this propriety : are absolute tenants to the Lords proprietors : and by virtue of this their submission : by oath to their inter- ests are irrecoverably involved to pay such Lords rents: as will answer the interests to wch they have sworne: and should we submitt to the in- terest so farre as by swearing thereunto: having a propriety of land not onely purchased from the Chief Proprietors of the Countrey: viz, the Indians : but alsoe granted unto us by the Deputy to his Royall highness the Duke of Yorke ( wch appears under hand and seal) ; it would be an act
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beneath the wisdome of the owners of such a pattent : and herein wee should apear to bee self-violators of our pattent ourselves: and for as much as the Lords Proprietors rents from such inhabitants as lives upon the propriety apears upon the concessions: viz, a half penny an acre at least ; should wee submit so farre to the interest by swearing: whose" acknowledgements by virtue of pattent to his Royall Highness: have their dependency upon such payment as others his majesties subjects, doe in the government of New Yorke to his Royall Highness: it would be an act, as wee conceive, wch would be a dishonor to him that gave it.
"Herein wee should apear to be self-violators of our pattent our- selves : but for as much as there is an assignment made by his Royall Highness to the Lords proprietors of such a tract of land in wich our pattent may bee comprehended : we looke at ourselves to be (notoriely) responsi- ble to the Lords Proprietors in all such acknowledgments as others his ma- jesties subjects doe : in the government of New Yorke to his Royall High- ness : (butt alsoe) to transmitt all criminalls arising amongst our selves : and such apeals as are proper to bee transmitted to the trial of Lords Pro- prietors' government: These : and no other being the same injunctions wch once we were subordinate to the government of New Yorke nott any way now Nullified : altered : or changed as wee conceive : butt only transferred by virtue of assignment to the sayd Lords proprietors and their government : notwithstanding for the future benefit and tranquility : and for the establishment of peace in the province: wee shall be willing to submit to the Lords Proprietors' interest according to the late order provided that some secure way could be projected or some provision made by the Lords Proprietors' government wch might secure us from destroy- ing by weakening this our interest wch we so highly prize indeed is the very foundation of our livelyhood: if noe secure way or course can be thought of or projected to secure our owne interest : we are at present resolved not to entangle ourselves into any other interest appertaining to any men : but shall (by the assistance of God) Stick to our pattent : the liberties and privileges thereof wch is our interest: wch once was com- mitted to us: nott to betray : like treacherous men : who for filthy lucre's sake have been ready to betray themselves and others but to deale faith- fully with it being a trust committed to us : and in soe doing wee conceive : we need not feare what any man : or power : can doe unto us: and for as much as att present wee conceive: that upon this our interest thare hath been lately an inroad made upon it: by virtue of an order coming from the Governor and Counsell : and by commission : published in our towne : prohibiting any officer that hath bin constituted by virtue of pattent to execute any office till they had sworn to the Lords proprietors' interest upon penalty of being proceeded against as mutineers: (to salve wch), wee shall make our addresses unto the highest authority in the country for remedy : and this is our positive resolution in answer to the Act: desiring further that this our answer may be presented to the general assembly to prevent misinformation."
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In the absence of the assembly journal for the period between 1668 and 1675, we are without information as to the manner in which this spirited protest was received, or what was the effect produced by it. But in the Middletown Book of 1671 there appears a copy of a letter addressed to the Governor, from which it would appear that the inhabitants of that place persisted in their denial of the property rights of the proprietors. The inference is, from this document, that the town acknowledged the ex- isting authority in its political powers and continued to send delegates to the assembly. In this connection it is proper to note that the inhabitants did not at any time rescind their order forbidding their delegates to take the assembly oath, unless with the modification previously referred to. For this reason the delegates were at times (and presumably at all times) inhibited from acting in the assembly when present. In the letter to the Governor, as shown in the Middletown Book, it is stated that in November, 1668, our deputies (Jonathan Holmes and Edward Tartt) "were not suffered to act," and Leaming and Spicer make mention in the Assembly minutes, referring to the same session, that "the deputies for Middletown and Shrewsbury, refusing to take or subscribe to the oaths of allegiance and fidelity but with provisos, and not submitting to the laws and govern- ment, were dismissed."
In 1669 Berkeley was ousted from his proprietorship. The burden of the conduct of provincial affairs devolved upon Governor Carteret, who became involved in difficulties and, in 1672, went to England to consult with the authorities. During his absence the Dutch had again taken pos- session of the country, but their rule was to be of short duration, retro- cession to Great Britain being made under the Treaty of 1674. This act gave rise to the question whether the title returned to the proprietors or to the King. To avoid all difficulty, the King recognized the claim of Car- teret, arrested all magistrates who would not submit to his own jurisdic- Jersey. But, before making this conveyance, the Duke included the prov- ince in a commission given to Sir Edmund Andros, Governor of New York, who refused to recognize the authority, as Governor, of Philip Car- teret, arrested all magistrates who would not submit to his now jurisdic- tion, and finally, on April 30, 1680, carried Carteret himself prisoner to New York. The Duke was finally prevailed upon to acknowledge the claims of the proprietors, and in 1681 the government of Andros came to an end.
In May, 1672, James Grover, John Bowne, Richard Hartshorne and Jonathan Holmes, of the patentees, and James Ashton and John Hance, of the associates, for themselves and for their fellows, memorialized Gov- ernor Carteret for confirmation of their titles and rights under the Nicolls
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grant. His response was not as satisfying as they had desired, but it mollified them to some degree for the time being. In effect it gave thein authority to dispose of their lands; gave assurance that no ministerial power or clergyman should be imposed upon them so as to enforce any that were contrary minded to contribute to their maintenance; legitimatiz- ing their local courts within certain bounds ; permitting appeals from local to higher courts; permitting the people to present two candidates for each civil and military office to the Governor, who should commission one of the two nominees ; and to have liberty to make peculiar prudential laws and con- stitutions amongst themselves according to the tenor of the patent.
In December of the same year, however, the Lords Proprietors pub- lished their declaration which contained the provision that "no person or persons whatsoever shall be counted a freeholder of the said province, nor have any vote in electing, nor be capable of being elected for any office of trust, either civil or military, until he doth actually hold his or their lands by patent from us, the Lords Proprietors."
Following after this declaration, in May of the following year ( 1673) John Bowne and James Grover, representing the people of the Navesink settlements, petitioned the Governor and Council to withhold decision as to the rights of the patentees under the Nicolls grant until they could be heard by the proprietors. This petition was sent to England, and was replied to by Sir George Carteret, who maintained the declaration of the Lords Proprietors, but made a concession of five hundred acres of land each to reimburse "such of them who were pretended patentees, and laid out money in purchasing land from the Indians." A further complication arose by the repossession of the country by the Dutch. The Dutch governor, Colve, confirmed to the settlers their property rights, and this, with a subsequent proclamation to the same effect, made by Sir Edmund Andros, the succeeding English governor of New York, renewed the con- fidence of the settlers in the validity of the Nicolls grant. The patentees, however, accepted the five hundred acre grants made by the Lords Pro- prietors, and warrants were given for the same.
The controversy had now reached an acute stage, and the conduct of the inhabitants holding under the Nicolls grant was so hostile toward the proprietors that the events of the time came to be known as the "Provincial Revolt." Disturbances occurred in all the counties of Essex, Middle- sex and Monmouth. The people of that last named were particularly an- tagonistic, as is evidenced by the declaration of the General Assembly, in session at Elizabeth Town, October 10, 1677: "We find by constant ex- perience for several years past that the town of Shrewsbury hath been de- ficient, if not negligent and careless, in sending of their deputies, or in
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sending such as will not conform to the order of the concessions respecting the deputies, whereby the said Assembly is weakened and the public work hindered." The disturbances of this period primarily grew out of the orig- inal controversy with reference to the proprietary title to and rights in the land, but into them now entered political disputes between contending parties as to the rival claims of Andrew Hamilton and Jeremiah Basse, each of whom asserted himself to be the rightful governor of the province. The merits of the latter question are foreign to the subject now under con- sideration.
In 1677 the King's Council took cognizance of the questions sub- mitted : I. Whether the grants made by Colonel Nicolls are good against the assigns of Lord Berkeley and Sir George Carteret; and 2. Whether the grant from the Indians be sufficient to any planter without a grant from the King or his assigns.
Stripped of its quaint phraseology and orthography, the decision of these issues was to the effect that the Nicolls grants were void. The authority of Governor Nicolls could last no longer than His Majesty's interest, and the fact of Nicolls having or having not notice of the Duke's grant to Berkeley and Carteret "makes no difference in the law," but the want of notice made it equitable that the present proprietors should con- firm such grants to the people who will submit to the concessions and make payment of quit-rent to the present proprietors, who, in default of such payment, were empowered to look upon them as desseizors and treat them as such.
This brought up again the supplementary five hundred acre grants made by the proprietors to recoup the original purchasers from the In- dians, and the record of the Governor and Council of East Jersey, of date May 17-18, 1683, has it that "the patentees accepted of the same (the five hundred acre tracts) and petitioned to have same laid out. Warrants were granted for the same. Some were surveyed and patented, particularly that of Richard Hartshorne, which appeared to be a full conclusion of that affair, unless it was made to appear that such petition and procedure not by consent or approbation of the town."
On May 18, Richard Hartshorne, John Bowne and Joseph Parker appeared before the Governor and Council. The official record sets fortli that "we inquired into the truth of these petitions and addresses, and the submission and resignation of their pretended rights to the late Lords Proprietors. And they owned and agreed that they were true, but alleged that the same was done for fear. It was answered that the like allegation may ever be made, but as an evidence to the contrary, the petitioners them- selves demonstrated that the patentees had, after the Lords Proprietors'
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grace and favor granted them five hundred acres of land apiece, they re- turned a letter of acknowledgement and thanks. And their associates, in compliance therewith, all patented their land according to the concessions, none excepted, and continued ever after satisfied therewith."
To this, in part, Bowne and his colleagues interposed the objection that the five hundred acre grants were to be exempt from quit-rent, but this the Governor and Council would not accede to, and the matter thus ended, without definite result, and this appears to have been the last conference between the Monmouth patentees and the Governor and Council.
In 1684 the new proprietors (twenty-four in number) instructed Deputy Governor Laurie to call to his aid five other persons in New Jersey, and to this commission was committed the task of ending "all controver- sies and differences with the men of Neversinks and Elizabeth Town, or any other planters or persons whatsoever, concerning any pretended titles or claims to land in said province," and this authorization contained the declaration that "we will not enter into any treaty on this side with any of those people who claim by Colonel Nicolls' patent nor with any others that challenge land by any patents from the late Governor Carteret, as being an affront to the government there. and of evil consequence to make things to be put off by delays, and thereby hinder the settlement of cur affairs in the province." The efforts of these commissioners were futile, and the difficulties continued until the more momentous scenes of the Revolu- tionary struggle distracted the attention of the people.
The closing chapter of the land controversy comprehends the events growing out of the purchases of the Berkeley interest by Fenwick and Byllinge, and that of William Penn and his associates. These transactions and their effect were, in part, the theme of the Hon. Anthony L. Keasbey, of Newark, who, in an address delivered before the Historical Society of New Jersey, on the bi-centennial anniversary of the purchase of East Jersey by the twelve proprietors, said :
"On the Ist of February, 1682, the deed was made and delivered, and twelve land speculators, headed by William Penn, became the sole owners in fee of all this fair domain. and from them must be traced the title of every lot and parcel of land which changes owners in East Jersey. And the direct successors of Penn and his eleven associates-still an organ- ized body with active managing officers-own every acre of land which they have not sold ; and every purchaser who wants to buy can now make his bargain with them, as purchasers did two hundred years ago."
In the Elizabeth Town settlement, the controversy assumed a phase somewhat different from that in Monmouth County.
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On his return from England, Governor Carteret bore with him in- structions to enforce the claims of Sir George Carteret, in the following explicit language :
"For such as pretend to a right of propriety to land and government within our Province, by virtue of any patents from Governor Col. Rich- ard Nicolls, as they ignorantly assert, we utterly disown any such thing. But if such persons as have not already received patents of their land from us shall not within one year after notice to them given of this our pleasure therein desire and accept patents of the said land, we do hereby order our Governor and Council to dispose of such lands and tenements in whole or part, for our best advantage to any other persons."
At a town meeting held in Elizabeth Town, March II, 1675, the set- tlers sought to avoid the threatened confiscation of their lands by proffer- ing an annual payment of twenty pounds to the Lords Proprietors for a township tract of eight miles square to be forever confirmed by charter to themselves and their heirs, who were to enjoy "all such privileges as any other towns in the Province have or shall have."
This proffer was treated with undisguised contempt, the only answer by the Governor and his Council being the return of the petition contain- ing the proposals of the people, with an endorsement to the effect that "there can not be granted any variation or alteration from the proclama- tion," and giving notice that the surveyor would perform his duty in re- distribution of the lands.
Under stress of this despotic authority, from which there was no appeal, the outraged settlers reluctantly submitted and, one after another, made application for new surveys and warrants, which were granted them. At the same time, the associates had no intention of abandoning their claims under the Nicolls grant, and a long controversy ensued which was complicated by a new survey and purchase of certain lands which had been previously conveyed by the Indians. No judicial investigation of the mat- ters in dispute, however, was made until 1695. The affairs of the province were settled in England in favor of the proprietors, who were therefore encouraged to bring into court their cause against the associates, feeling confident that the judgment would be in their favor, and that the settlers would be obliged to make payment of quit-rent arrearages fiom 1670 or be dispossessed of their holdings, now become valuable through improve- ments.
The case in question was that known as the Fullerton case. Three brothers of that name-Thomas, Robert and James-who came in 1684. inade settlement upon a tract of land on Cedar Creek which was claimed
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by the people of Elizabeth Town under the Nicolls grant, and had been subsequently acquired by Governor Laurie from the Indians in the transac- tion above mentioned. Jeffrey Jones, one of the associates, had derived from Laurie title to land upon which had previously settled James Fuller- ton, whom he ousted in 1093. Fullerton brought an action of trespass and ejectment, and the case came to trial in the court of common pleas at Perth Amboy, in May of 1695. A special verdict was agreed upon, but the jury rendered a general verdict in favor of Jones. The court, however, sustained the special verdict, and Jones appealed to the King in Council. At the hearing of the case at Kensington, William Nicoll, an eminent law- yer of New York, appeared in behalf of Jones. The committee of the privy council, consisting of Lord Chief Justice Holt, Sir Henry Good- rich and Philip Williamson, gave it as their opinion that the judgment should be reversed, and their conclusion was concurred in by the King in Council. This was a cause celebre, inasmuch as the case was one involving the property rights of all associates, and its conclusion was thus subse- quently stated by Mr. Nicoll :
"The sole dispute was, Whether Col. Richard Nicolls, as Governor under the King of England in those parts, might not grant License to any of the Subjects of England to purchase Lands from the native Pagans? and if, upon such License and Purchase, the English Subjects should gain a property to the Lands so bought? all which was resolved in the Affirm- ative, and the Judgment given to the Contrary accordingly reversed."
The result of this cause was of momentous importance. In effect, the judgment of the King and his Council confirmed beyond question the validity of the title under which the patentees and their associates held their lands. This at once begot in them a deeper respect, and even a de- gree of affection for the sovereign, and emboldened them in their opposi- tion to the proprietary rule.
But this was, as soon became apparent, no final settlement of the dithi- cultv. In 1702 the proprietors made surrender to the crown of their right of jurisdiction, but this worked no adjustment of the contested titles in the Elizabeth Town grant. Some twelve years later, under the reign of George I, the proprietors instituted proceedings to again test the validity of the Nicolls grant, and for many years the associates and settlers holding under title derived from them were subject to great annoyance and much expense, besides being involved in considerable disorder. In various in- stances persons obtained from the proprietors patents to lands which were claimed by the associates as their common holdings under the Nicolls grant, but the latter named were unable to obtain redress in the local
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courts, or before the Governor and Council, at times because of the bias of the ruling officials, and again for want of record evidence. It was while these and similar proceedings were being had that the old town books disappeared, these containing the proceedings of the various town meetings for a period of fifty years beginning with the settlement, and with them the records of the various surveys. Statement of this fact is extant in a paper of date November 18, 1729, bearing the signatures and seals of one hundred and eleven of the associates, reciting that "it so hap- pened that the sd Books wherein sd Surveys or the greater Number of them were Entered by Some One or more Designing Person or Persons were Craftily and Maliciously Stole and (as there is no Small reason to believe) were burnt or otherwise destroyed, So that the benefit thereby intended to the parties aforesd and their Assigns became Wholly frustrate and Void."
In 1744 three hundred and four proprietors, freeholders and inhab- itants of a tract of land called Elizabeth Town petitioned the crown (in the reign of George II), reciting their rights under the Nicolls grant, and protesting their inability to procure impartial justice in the local and provincial courts. The preparation of this paper was committed to Stephen Crane and Matthias Halfield. The petition was read in King's Council, July 19, same year, and was referred to the Committee of Council for Plantation Affairs, and by that body, in turn, to the Commissioners for Trade and Plantations, and here it is lost sight of-an early instance of that convenient "pigeon-holing" process now common in legislative bodies.
An important chapter of the litigation of this period appears in rela- tion to the famous "Bill in Chancery" of 1745, presumably prepared by James Alexander, who, with Joseph Murray, represented the proprietors. Alexander had served as Surveyor-General of New Jersey, and then stood at the head of the New York bar, while his colleague was also one of the foremost lawyers in the land. The book was published July 21, 1747, and was a double-columned folio of one hundred and twenty-four pages, with maps, and an appendix of forty pages. Aside from its value as bearing upon the litigious history of the times, it is remarkable as an early speci- men of American typography, and for the unique phraseology of its title, which was as follows :
"A bill in the Chancery of New Jersey, at the Suit of John Earl of Stair. and others, Proprietors of the Eastern-Division of New Jersey; Against Benjamin Bond, and some other Persons of Elizabeth-Town, dis- tinguished by the name of Clinker Lot Right Men. With Three large Maps, done from Copper-Plates. To which is added; The Publications of the Council of, Proprietors of East New-Jersey, and Mr. Nevill's
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Speeches to the General Assembly, concerning the Riots committed in New-Jersey, and The Pretences of the Rioters and their Seducers. These Papers will give a better Light into the History and Constitution of New- Jersey, than anything hitherto published, the Matters whereof have been chiefly collected from Records. Published by Subscription. Printed by James Parker, in New York, 1747; and a few copies are to be sold by him and Benjamin Franklin, in Philadelphia; Price bound, and Maps coloured, Three Pounds; plain and stitcht only, Fifty Shillings. Proclamation Money."
The "Answer to the Bill in Chancery" appeared in a volume of forty- eight folio pages, and bore the following title:
"An answer to a Bill in the Chancery of New Jersey. At the Suit of Jchn Earl of Stair, and others, commonly called Proprietors of the East- ern Division of New Jersey, Against Benjamin Bond, and others claiming under the original Proprietors and Associates of Elizabeth Town. To which is added; Nothing either of The Publications of the Council of Proprietors of East New-Jersey, or of The Pretences of the Rioters, and their Seducers Except so far As the Persons meant by Rioters, pretend Title Against The Parties to the above Answer; But a great Deal of the Controversy, Though much less of the History and Constitutions of New Jersey, than the said Bill. Andi alteram partem. Published by Subscrip- tion. New York: Printed and Sold by James Parker, at the New York Printing-Office, in Beaver-Street. 1752.
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