USA > New Jersey > The history of New Jersey, from its discovery by Europeans, to the adoption of the federal Constitution > Part 12
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The commissioners, subsequently, with the consent of the Indian attor- neys, purchased a tract of more than three thousand acres of land, called " Brotherton," in Burlington county, on Edgepeling creek, a branch of the Atsion river, upon which, there were a cedar swamp, and a saw mill; and adjacent, many thousand acres of poor, uninhabited land, suitable for hunt- ing, and convenient for fishing on the sea shore. This property was vested in trustees, for the use of the Indians, resident south of the Raritan, so that they could neither sell nor lease any part thereof; and all persons, other than Indians, were forbidden to settle thereon. Soon after the purchase, they were assisted by the government to remove to this spot, and to erect commo- dious buildings. In 1765, there were about sixty persons seated here, and twenty more at Weekpink, on a tract secured, by an English right, to the family of King Charles, an Indian sachem. But no measure has yet been devised, to avert the fiat which has gone forth against this devoted race. This feeble remnant having obtained permission to sell their lands, in num- ber between seventy and eighty, removed, in 1502, to a settlement on the Oneida lake, belonging to the Stockbridge Indians, who had invited their "Grandfathers to cat of their dish," saying, " it was large enough for both;" and adding, with characteristic earnestness, that, "they had stretched their necks, in looking towards the fire-side of their grandfathers, until they were as long as those of cranes." The united tribes remained here until 1824; when the encroachnients of the whites indneed them, with the Six Nations, and the Muncys, to quit New Stockbridge, and to purchase from the Meno- mees, a large tract of land on the Fox river, between Winnebagoc Lake, . and Green Bay, and extending to Lake Michigan. In 1832, the New Jersey tribe, reduced to less than forty, applied by memorial, to the Legislature of the State, setting forth, that they had never conveyed their reserved rights of hunting and fishing, on unenclosed lands, and had appointed an agent, to transfer them on receipt of a compensation. This agent, a venerable chief
Wooley, George Wheelwright, Peepey. Joseph Chish, William Loulax, Gabriel Mitop, Zeb. Conchee, Bill News. John Pembolus ; Mountain Indians. Moses Totamy, Philip: Raritan Indian, Tom Evans: . Incons Indians, Robert Kekott, Jacob Mullis, Samuel Gosling; Indians from ( renburg. Thomas Store, Stephen Calvin, John Pomp- shire, Benjamin Claus, Joseph Wooley. Josiah Store, Isaac Still, James Calvin, Peter Calvin, Dirick Quaquaw, Ebenezer Wooley, Sarah Stores, widow of Quaquahela; Southern Indians, Abraham Loques, Issac Swanelac. John Pompshire, interpreter.
* The degradation of the Delawares, or Lenape, is apparent upon every occasion, on which the Mengwe assemble with them. Benjamin, who on this occasion replied to Governor Bernard, on behalf of the Money Indians, held a belt in his hand, but spoke whilst sitting, not being allowed to stand, until the Mingo had spoken .- Min. of Treaty .- Smith's Hist. N. J. 450.
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of seventy-one years of age, bore the name of Bartholomew S. Calvin. He had been selected by J. Brainerd, brother of the celebrated Indian mission- arv, and placed at Princeton College, in 1770; where he continued, until the revolutionary war cut off the funds of the Scotch Missionary Society, by whom he was supported. He afterwards taught school, for a number of years, at Edgepeling, where he had as many white as Indian pupils. As all legal claim of the tribe, was even by its own members, considered barred by voluntary abandonment, the Legislature consented to grant remuneration, as an act of voluntary justice; or rather, as a memorial of kindness and com- passion, to the remnant of a once powerful and friendly people, occupants and natives of the State, and as a consummation of a proud fact, in the his- tory of New Jersey, that every Indian claim to her soil, and its franchises had been acquired by fair and voluntary transfer. By the act of 12th of March, the treasurer was directed to pay to the agent, two thousand dol- lars, upon filing in the secretary's office, a full relinquishment of the rights of his tribe.
In all the measures of the state for the extinction of Indian title, it will be observed that she was moved by principles of justice, humanity, and sound policy. No pecuniary benefit resulted directly to the treasury, as she pos- sessed, in her own right, not a single acre of the soil. This, by every title, legal and equitable, was fully vested in the proprietaries, respectively, of East and West Jersey ; and we proceed to consider, concisely, the principles which they adopted for its disposal.
X. By the several "Concessions" of Berkeley and Carteret, and their grantees, the twenty-four general proprietors, lands were given to settlers, masters, and servants, males and females, in designated quantities, subject to an annual quit-rent, and the extinction of the Indian title. This was the common tenure until the 13th January, 1685,* and some few instances occur so late as 1701. Lands thus granted were denominated " head lands."
The mode of the grant was devised with due regard to the ease and safety of the grantees. A warrant signed by the governor and major part of the council, was directed to the surveyor-general, commanding him to survey a specific number of acres. Upon this warrant the surveyor endorsed his re- turn; both were recorded by the register, and upon certificate from the governor and council, he issued a patent, which receiving the signature of the governor and council, was, also, duly registered. A reservation, not ordinarily expressed in the patent, was made of all mines of gold and silver.
There was, however, another source of legal title, to lands in the province, in the Swedish and Dutch authorities; under the latter of which, many tracts were holden in East and West Jersey, accompanied with an Indian title, obtained by the holders. Upon the English conquest, the principle was, im- mediately, established, that no Indian right could be purchased, except by license from the English proprietors. Thus, that license was required for the Elizabethtown tract, and was given by Colonel Nicholls before, and in ignorance of, the transfer to Berkeley and Carteret. Governor Philip Car- teret, also, gave such licenses, but, always subject to the "Concessions," which required the purchaser from the Indians, to take a proper and formal title from the general proprietors. In such case, when the Indian grant covered more than the location of the grantee, he was entitled to contribu- tion from all who were benefitted by it. Thus, when under his license, the Newark settlers procured the Indian release for more lands than they had appropriated to imported heads in 1655, they claimed, and in 1692 received,
* Elizabethtown Bill in Chancery. See ante, p. 26.
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from the council of proprietors, a full indemnity, in the grant of one hundred acres of land more than they were entitled to by the Concessions, for each of the original settlers, at a quit-rent of six-pence sterling the hundred, instead of four shillings and two-pence, per annum.
In the year 1680, governor Andross, after his usurpation of authority in New Jersey, encouraged purchases from the Indians, in derogation of the proprietary rights. But the Duke of York, on complaint, not only disowned the acts of his deputy, but removed him from office. Many of such pur- chasers, afterwards, took title from the proprietors, in due form; but the danger of the practice, induced an act of Assembly, in 1683, prohibiting all treaties with the Indians, without license from the governor. During the confusion resulting from the rival claims of Mr. Basse and Mr. Hamilton to the government, from 1698 to 1702, this act was disregarded, and purchases were made from the natives. But, in 1703, as soon as the go- vernment was resettled, another act annulled them, and required the pos- sessor to take a proprietary title, within six months from its passage. This act, also, prescribed the method by which the proprietaries, themselves, in- dividually, should obtain license to treat with the natives; and imposed a penalty of' forty shillings per acre, upon every one who should purchase without license.
We have elsewhere spoken, particularly, of the Elizabethtown purchase .* Many of the claimants under the Indian title, took patents from the proprie- tors; but others have steadfastly relied upon it, resisting all efforts of the pro- prictors to recover quit-rent, or locate warrants, and have repeatedly disturbed the public peace by their violence. This pertinacity has been maintained, notwithstanding the only plausible pretence of title, was in the sanction of Governor Nicholls, as the deputy of the Duke of York, given after the right had passed from the Duke to his grantees, and notwithstanding such sanction was formally disavowed by the Duke, 25th November, 1672. This claim purchased for a few pounds, the very payment of which is uncertain, covered 400,000 acres, between the Raritan and Passaic Rivers. Irregular Indian titles were also set up in Middletown and Shrewsbury townships, but were carly abandoned; the claimants taking patents from the proprietors, and re- ceiving an indemnity for their expenditure in the grant of 500 acres of land, each. Some of the inhabitants of Newark, also pertinaciously claimed an exclusive right under the Indian grant, refusing to pay quit rents, and play- ing a conspicuous part in the riots which were, from time to time, excited by efforts to enforce proprietary rights: The adverse claims of the Newark peo- ple, were, probably, settled by arbitration and acquiescence. ; But although . many suits have been brought at law, and a most ably drawn bill, containing the whole case has been filed in chancery, the proprietaries have been unable to obtain an effectual determination of the question arising out of the Eliza- bethtown pretension. The quit rents throughout East Jersey, are due and demandable; but the lapse of time, and the division of tracts and interests render it impossible to collect them. In one instance, only, that of the quit- rent on the town of Bergen, of Et5 sterling, per annum, a commutation after suit brought, has been made between the tenants and proprietors.
For a short period after the purchase of the province, by the twenty-four proprietaries, the grant of bounty or head lands, was continued. The pro- prietaries soon after their acquisition, sold many small shares, to persons who transported themselves and families into the Eastern division. And they
* See page 27.
t See Appendix note O, for a copy of a letter from David Ogden, esq., 20th February, 1767, and see Phila. Lib. No. 1588, octavo.
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agreed to divide part of the lands remaining in common, among themselves in proportion to their rights. Dividends were thus made from time to time. The first consisted of 10,000 acres to each share, or twenty-fourth part, and to fractions of a share in the same proportion. These dividends were to be located in any place, not before appropriated. And to restrain the locations within proper limits, a number of the proprietarics, resident in New Jersey, convened from time to time with the governor, to examine the rights of the respective claimants, in order to determine what was due to each; and upon a certificate of five of them, the governor issued the proper warrants of survey. This council first met on the 13th November, 1684. In other respects, the mode of location and of obtaining of title, was similar to that pursued by the first proprietaries under their Concessions, except, that in patents to the proprietors, no quit-rents were reserved. This mode continued until after the surrender of the government, and the arrival of the first governor appointed by Queen Anne.
Upon the 2d of December, 1702, two further dividends having been made, a general order was declared, that the surveyor-general should survey to vach proprietor his proportion without further particular warrant, by which the duty of inquiry into the rights of cach proprietary, and ordering warrants, devolved upon that officer. At the same time, a former regulation was re- newed, directing that no survey should be made to any person, whose title was not upon record with the register; who by means of an account opened with each proprietary, could certify the true condition of his share.
The office of register, which was established by the Concessions, and was always in the nomination of the proprietaries, was recognised by Act of As- sembly, 21st February, 1692. Upon the surrender of the government to the crown, it was agreed, that the governors to be appointed, should be instruct- ed to procure from the assembly, such acts, whereby the right of the pro- prietaries to the soil might be confirmed to them, together with such quit- rents as they had reserved, and that the particular estates of all purchasers, claiming under the general proprietaries, should be also confirmed and settled; and he was required not to permit any person, other than such proprietors and their agents, to purchase lands from the Indians. These instructions were regularly continued to the respective governors.
In 1719, the act for running, and ascertaining the division line between East and West Jersey, and other purposes, required, that the surveyor-gene- ral of the respective divisions, should keep by themselves, or deputies, a public office in the cities of Perth Amboy and Burlington, respectively, in which should be, carefully, entered and kept, the surveys of all lands, thereafter, made, which should be of record, and pleadable in the courts. Authority was also given to such officers, respectively, to collect, and preserve all muniments of title, which might be of general use for proving the rights of the proprietaries, or persons claiming under them; and the officers were required to give bond to the governor for the use of the proprietors, in the sum of one thousand pounds, conditioned for the faithful performance of their duties.
As the practice which now universally prevailed, of the proprietaries or their vendees laying their warrants wherever they could, or supposed they could, find vacant lands, and as the surveys were not regularly recorded, many per- sons not only surveyed lands which had been formally appropriated, but even settled and improved them, and were afterwards ousted. For remedy of this · grievance, the same act provided, that all surveys theretofore made, the certifi- cates of which were in the hands of any of the inhabitants of this or the neigh- bouring province, which were not within two years, and such certificates as were in the hands of persons living beyond seas, which were not within three years, after the publication of the act, duly recorded, cither in the recorder's
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office, or in the surveyor-general's record of the division, in which such lands were surveyed, should be void; and any succeeding survey duly made and recorded, should be as good and sufficient, as if no former survey had been made.
After the surrender of the government, by which the governor ceased to be an officer of the proprietarics, no more patents could be made under the seal of the province. The proprietaries of East Jersey, observing that those of West Jersey had never used that method for appropriating their dividends, but had made all their divisions by warrants from their council of proprieta- ries, after inspection of the right of the claimant and survey thereon made and certified by their surveyor-general and recorded, resolved to adopt the same form of obtaining their dividends in severalty. And this mode, since 1703, has continued to prevail in both East and West Jersey.
The council of proprietaries of East Jersey, having devolved their princi- pal duties on the surveyor-general, they, after the surrender, ceased to meet, unless on special occasions. But finding this inattention prejudicial to their interests, a majority of the general proprietors, their attorneys, and agents, by an instrument, dated the 25th day of March, 1725, agreed, that, a cer- tain number therein mentioned, having, in their own right, or by proxy, eight whole proprietaries, should make a council, with power to appoint the receiver of the quit-rents, the register, and the surveyor-general, declare dividends, examine claims, grant warrants of survey, and, generally, to do all things requisite for the management of proprietary affairs. The council commonly held two stated meetings, annually, at Perth Amboy, and con- vened, also, when specially required. From 1725, to the present period, it has continued to administer the affairs of the proprietaries of East Jersey, without intermission .*
The whole number of dividends, made by the proprietaries of East Jersey, are eleven of " good right," and three of " pine right;" the first, amounting to thirty-eight thousand, and the second, four thousand, acres to each share. A very great portion of these rights have been located, but the stock is not yet exhausted. In Monmouth there is much vacant land, but it is not valua- ble; in the northern counties, Sussex, Bergen, and Morris, there is little un- appropriated; but in Middlesex, Somerset, and Essex, there is none unlo- cated.t
XI. Soon after the purchase by the West Jersey proprietaries, they re- solved to divide their territory into ten parts or precincts, and the whole into one hundred shares or actions. To this end, chapter first of the Conces- sions, provided, that the commissioners, for the time being, " should take . care for the setting forth and dividing all the lands of the province, as were already taken up, or by themselves shall be taken up and contracted for, with the natives, and the said lands to divide into one hundred parts, as occasion shall require; that is to say, for every quantity of land that they shall, from time to time, lay out to be planted and settled on, they shall first, for expedition sake, divide the same into ten equal parts or shares; and, for distinction sake, mark in the register, and upon some of the trees, belonging to every tenth part, the letters A B, and so end at the letter K." The
" Mr. John Rutherford is now, or was lately, its president, and James Parker, Esq. the register. To the latter gentleman I express my obligation, for the readiness and kindness, with which he has communicated much information relative to the eastern land office, and other subjects of general interest. Its first president was Lewis Morris, afterwards governor.
+ Proprietary rights of East Jersey have sold, since 1797, generally, at about one dollar the aere, wholesale -- sometimes higher. if scarce, before a dividend. The retail price has been about one dollar and fifty cents the acre. The value in 1834, is stated at one dollar, or seventy-five cents per the acre, in large quantities.
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commissioners were then instructed to give preference to certain individuals of the county of York,* for themselves and friends, who were described, "as a considerable number of people, who might speedily promote the planting of the said province," in the choice of any one of such tenths. Afterwards, any other person or persons, who should go over to inhabit, and have pur- chased to the number of ten proprietaries, should have liberty to make choice of any of the remaining parts: and all other proprietaries who should go over to settle, and could make up amongst them the number of ten pro- prictors, might elect to settle in any tenth, not before appropriated. The commissioners were empowered to see such tenth part, so chosen, laid out and divided into ten proprietaries, and to allot the settlers so many proprie- taries out of the same, as they had order for. And the commissioners were instructed to follow these rules, until they should receive contrary directions from the major part of the proprietors.
To encourage the settlement of the province, the proprietaries of West Jersey, also, adopted the plan of granting head lands, as in East Jersey, with some modification, of the conditions. Thus-1. To all persons, who, with the consent of one or more of the proprietaries, should transport themselves or servants to the province, before the 1st April, 1677, there were granted, for his own person and for every able man servant, each, seventy acres; and for every weaker servant, male or female, exceeding the age of fourteen years, fifty acres; and to every servant, when free, fifty acres in fee: 2. To masters and able servants, arriving before the 1st of April, 1678, fifty acres, and to such weaker servants, thirty acres; and to servants, after the expiration of their service, thirty acres: 3. To every freeman, arriving in the province between the 1st of April, 1678, and the 1st of April, 1679, with an intention to plant, forty acres; for every able man servant the like quan- tity, and for such weaker servant, twenty acres; with twenty acres to cach servant at the expiration of service: Upon lands of the first class, there was reserved an annual quit-rent to the proprietor, his heirs and assigns, to whom the said lands belonged, of one penny an acre for what should be laid out in towns, and a half-penny an acre, for what should be laid elsewhere; the rent to commence two years after the lands were laid out : upon lands of the second class, one penny farthing, the acre, when in towns, and three far- things the acre, elsewhere: and on lands of the third class, one penny half- penny the acre, in towns, and one penny the acre, elsewhere.
Lands so granted and settled, were to be holden, on condition, that every hundred acres should contain, at least, two able men servants, or three such weaker servants, and so proportionately, for a lesser or greater quantity, beside what the master or mistress should possess, as granted for his or her own person. On failure of which, on notice to the occupant or his assigns, three years time was given for completing the number of servants, or for the sale of such portion of the lands, as should not be so peopled. And, if, within such three years, the holder should fail to provide such number of persons, (unless the General Assembly, without respect to poverty, should judge it to have been impossible, to keep such number of servants), the commissioners, upon verdict and judgment of a jury of the neighbourhood, were empowered to dispose of so much land, for any term not exceeding twenty years, as should not be planted with the due number of persons, to some other, that would plant the same; reserving to the proprietor his rents. It was fiirther provided, that every proprietor, who should go over in person, and inhabit, should maintain upon every lot he should take up, one person
" Thomas Hutchinson of Beverly, Thomas Pearson of Benwicke, Joseph Holmesly of Great Kelke, George Hutchinson of Sheffield, and Mahlon Stacy of Hemsworth.
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for every two hundred acres. "And all other proprietors, that do but* go over in person and inhabit, should keep upon every lot of land that should fall to them, one person at least, and if the lot exceed one hundred acres, then, upon every hundred acres, one person. And upon neglect, the com- missioners were empowered to dispose of the lands, as in the preceding case. This obligation for keeping servants upon lands was to continue in force for ten years, from the date of the Concessions; unless where, in case of default, the commissioners had let the lands for a longer period.
For the regular laying out of lands, the register having recorded a grant from a proprietor, for any quantity of acres, made out a certificate to the surveyor, or his deputy, enjoining him, to survey such quantity, from the share of such proprietor ; which donc, the surveyor returned the survey to the register, and such return was duly registered in a book kept for that purpose, and an endorsement of the entry was made on the back of the warrant.
The commissioners elected by the Assembly, in 1681, prescribed ad- ditional rules for the settlement of lands; by which, the surveyor was required to measure the front of the river Delaware, beginning at Assunpink Creek, and proceeding thience, to Cape May, that the point of the compass might be found, for running the partition line between each tenth. Each tenth was to have its proportion of front, on the river, and to run so far back into the woods, as to give it 64,000 acres for first settlement, and for sub- dividing the Yorkshire and London two-tenths: Three thousand two hun- dred acres, were allowed, where the parties concerned pleased to choose it, within their own tenth, to be taken up in the following manner; one-eighth part of a proprietary, and so for smaller parts, to have their full proportion of the said land, in one place (if they pleased); and greater shares, not to exceed five hundred acres, to one settlement. All lands, so taken up and surveyed, were to be seated within six months, after being taken up; upon penalty, that the choice and survey should become void; in which case, they might be taken up by any other purchaser, he seating them, within one month after they should be taken up: No person was permitted to take up lands on both sides of a creek, for one settlement, unless for special cause . Nor to have more than forty perches front, to the river or navigable creek, for every hundred aeres, except it fell upon a point, so that it could not be avoided-when the commissioners might exercise their discretion : All lands were to be laid out, on straight lines, that no vacancies should be left between tracts, except in special cases, to be determined by the commissioners: All persons were allowed their just proportion of meadow, at the discretion of . the same officers: Persons already settled, were at liberty to make their set- tlements their choice, following the rules prescribed: Every proprietor was allowed four hundred acres to his proprietary, and proportionably to lesser quantities, for town lot; over the 3200 above mentioned, which might be taken any where within, his own tenth, either within or without the town bounds: No person having taken up a town lot, was permitted to leave it, and take a lot elsewhere; nor could any one take up more land within the town bounds, than belonged to his town lot, by virtue of his purchase: No person, not a purchaser, to whom town lot, or lots, were given, was permit- ted to sell his lot of land, separate from his house, on penalty of the sale being void, and the lot forfeited to the town of Burlington, to be disposed of therein, at the discretion of the commissioners : No person, thenceforth, was permitted, to take up any land without special order, from two or more
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