USA > New Jersey > The history of New Jersey, from its discovery by Europeans, to the adoption of the federal Constitution > Part 29
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" Assume the God, Affect to nod,
And seem to shake the spheres."
But the name of the King was no longer a spell sufficiently potent to open
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HISTORY OF NEW JERSEY.
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the purses of the people, for a prescribed series of years, in favour of royal officers. The Assembly declared, " that though they entertained the most grateful sense of the attention shown to the wishes of the colony, in the allowance of the loan act, and of his Majesty's gracious inclinations to give "every indulgence consistent with the true principles of commerce and the constitution," and are sincerely disposed to grant his Majesty's requisitions; yet, at this time, the House cannot consider it prudent, to go into any in- crease of the salaries of the officers of government, nor do they apprehend that it will be beneficial for his government over us, to settle them longer than the usual time; or expedient to erect buildings at present, better to ac- commodate the branches of the Legislature."
On December 6th, 1775, the House was prorogued by the governor until the third day of January, 1776, but it never re-assembled; and thus termi- nated the provincial Legislature of New Jersey.
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CHAPTER XII.
Comprising Civil Events of the year 1776 .- I. State of the Public Opinion at the com- mencement of the year 1776-Gradual growth of the desire of Independence .- II. Resolution of Congress for the establishment of Independent Colonial Go- vernments .- III. Provincial Congress re-assembles-Proceeds to the Forma- tion of a Colonial Constitution .- IV. Review of the Constitution .- V. Oatlı of Abjuration and Allegiance established .- VI. Tories-their motives .- VII. Law relative to Treason .- VIII. Imprisonment and Relegation of Governor Frank- lin .- IX. Measures adopted against the Disaffected .- X. Adoption of the Decla- ration of Independence.
I. For more than a year the whole country had been, not, only, in open rebellion against the King, but its inhabitants had actually made war upon their fellow subjects, who, unconscious of oppression, had preserved their loyalty. Yet, during this period, the governments of the United Colonies, respectively, were administered in the King's name, and the people, every where, professed affection for his person, and attachment to the parent state. In the first half of the year 1755, amongst the great mass of the people and many of their leaders, these sentiments were real. But the more daring and ambitious spirits had, not only forescen that the continuance of political con- nexion was not much longer possible, but had, successfully, sought to in- spire the people with the desire of independence. And, probably, there was not a profoundly reflecting man in revolted America, who did not, in the depths of his heart, believe, that the severance of the ties between the parent and daughters was, at no very distant period, inevitable; though many, from various causes, such as timidity, selfish policy, and influence of family relations, were disposed to postpone the event. *
But this inconsistent state of things could not continue, without the most odious and useless hypocrisy, nor without the greatest injury to the cause of the colonists. Whilst the expectation of a reunion was suffered to delude the minds of men, a reluctance to pursue those energetic measures which the crisis demanded, would paralyze the best efforts of the patriots who had assumed the direction of affairs. In effecting a change and demonstration of public opinion, perhaps, no single agent was more powerful, than a pamphlet styled Common Sense, written by Thomas Paine; which, in a clear, perspi- cuous, and popular style, boldly pronounced a continued connexion with England unsafe, as well as impracticable; and successfully ridiculed her
* In 1768 the following language was holden in the American Whig, a periodical paper, published in New York, edited by Mr. William Livingston, afterwards, gover- nor of New Jersey: and the article is said to have been written by him .- Sedgwick's Life of Liringston, p. 115. " The day dawns in which the foundation of this mighty empire is to be laid, by the estabhshment of a regular .Imerican Constitution. All that has hitherto been done. seems to be little besides the collection of materials for the construction of this glorious fabric. 'Tis time to put them together. The transfer of the European part of the great family is so swift, and our growth so vast, that before seven years roll over our heads, the first stone must be land. Peace or war, famine or plenty, poverty or affluence, in a word, no circumstance, whether prosperous or ad- verse, can happen to our parent, nay, no condnet of hers, whether wise or imprudent ; no possible temper on her part, will put a stop to this building * * What an era is this to Amerien! and how loud the call to vigilance and activity ! As we conduct, so will it fare with us and our children." Notwithstanding this prophecy and the spirit which prompted it, and which filled the bosom of every leading man in every colony,. Mr. Livingston was of those who believed, that the time for its fulfilment had not arrived, and that the declaration of independence, when made, was premature.
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constitution, which had hitherto been deemed the masterpiece of political workmanship. This pamphlet was universally read, and among those who were zealous in the war, obtained, every where, friends to the measure of independence. The belief became general, that a cordial reconciliation with Great Britain was impossible; that, mutual confidence could never be re- stored ; that, reciprocal jealousy, suspicion, and hate, would take place of that affection, indispensably necessary to a beneficial connexion ; that. the commercial dependence of America upon Britain, was injurious to the former, which must derive incalculable benefit from full liberty to manufacture her raw material, and to export her products to the markets of the world; that further dependence upon a nation or sovereign, distant three thousand miles, ignorant and regardless of their interests, was intolerable in the present ra- pidly increasing strength and power of the colonies; that the hazard in pro- longing the contest was as great as in the declaration of independence ; and that, since the risk of every thing was unavoidable, the greatest good attaina- ble should be made, in common justice and prudence, the reward of success. It was urged, also, with great force, that foreign aid could be more certainly obtained from the rivals of Great Britain, if they felt assured that such aid would tend to the permanent dismemberment of her empire. The bias given by all these forces was confirmed among the people, on finding, that, they were declared to be in a state of rebellion; that foreign mercenaries were employed to forge their chains; that the tomahawk and scalping knife were engaged in the British service; and that their slaves were to be seduced from their masters and armed against them.
II. The measures of Congress during this remarkable contest, took their complexion from the temper of the people. Their proceedings against those disaffected to their cause became more vigorous; their language relative to the British government, less that of subordinate states-general letters of marque and reprisal were granted, and the ports were opened to all nations not sub- ject to the British crown. At length, the great and important step of inde- pendence was in effect, though not in form, taken. On the 15th May, 1776, Congress declared, that his Britannic Majesty, with the lords and commons, had, by act of Parliament, excluded the united colonies from the protection of' the crown; that, not only had their humble petition for redress and reconcilia- tion been received with disdain, but the whole force of the kingdom, aided by foreign mercenaries, was about to be exerted for their destruction ; that, there- fore, it was irreconcilable with reason and good conscience for the colonists to take the oaths for supporting any government under the crown of Great Britain; and it was necessary that the exercise of every kind of authority under the crown should be suppressed, and that all the powers of government should be exercised by the people of the colonies for the preservation of inter- nal peace, virtue, and good order, and the defence of their lives, liberties, and properties, against the hostile invasions and cruel depredations of their one- mies. And they resolved, "That it be recommended to the respective Assem- blies and conventions of the united colonies, where no government sufficient to the exigencies of their affairs has been hitherto established, to adopt such government as shall, in the opinions of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general."
This was virtually a declaration of independence. It was such almost in terms. The renunciation of allegiance to the British crown, and the establish- ment of governments by the authority of the people, were made, certainly, with no hope of reconciliation, nor desire of re-union with the parent state. When Massachusetts asked advice of Congress on the propriety of "taking
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up and exercising the powers of civil government,"* they recommended such regulations, only, as were indispensable, and those to be conformed as nearly as possible to the spirit of their charter, and to endure no longer than until a governor of his Majesty's appointment should consent to govern the colony according to that instrument. This was in perfect accord with the protes- sions of the colonies of' respect and attachment, and dependence on Great Britain. But the resolution now adopted spoke not of limitation to the powers to be assumed by the people, neither as to their nature nor duration.
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In seeking redress from British taxation, and denying to Parliament the right for its unlimited exercise, great unanimity had prevailed. The old parties forgot their animosities, and united to oppose a common oppression. Whilst bound with the band of loyalty to the King, this union appeared indis- soluble, but when armed resistance became necessary, still more, after it had commenced, strong repulsive qualities discovered themselves in the mass. The Quakers, opposed to every form of war, and strongly attached to the parent state, and to their church, and family connexions therein, shrunk with deep sensibility from the unnatural contest, and with horror from perma- nent separation and independence. The royal officers, their dependents and connexions, embracing a large proportion of the wealthy and distinguished of the province, beheld in a change of government the loss of official emolu- ment and influence. The great body of the people, however, led by enter- prising spirits, who were not only impatient of oppression, but who saw even in the vicissitudes of war the excitement they loved, and in independence successfully maintained, bright visions of glory and wealth, hailed with rap- ture the recommendation of Congress to take the first irrevocable step towards political emancipation.
For these parties names were borrowed from English politics. The de- votees of American freedom and independence assumed the title of whigs, whilst they designated their opponents by that of tories.
III. The provincial Congress of New Jersey, elected on the fourth Monday in May, pursuant to the ordinance of the preceding Congress, convened at Burlington on the 10th of June, 1776, and was organized by choosing Samuel Tucker, Esq. president, and William Patterson, Esq. secretary. Before the 21st of that month, many petitions were received from East Jersey, for and against the formation of a new government; and on the day last men- tioned, the convention resolved, that a government be formed for regulating the internal police of the colony, pursuant to the recommendation of the continental Congress, of the 15th of May, by a vote of 54, against three mem- bers. Messrs. Green, Cooper, Jonathan D. Sergeant, Lewis Ogden, Jona- . than Elmer, Hughes, Covenhoven, Symmes, Condict, and Dick, were appointed a committee to prepare a constitution on the 24th of June, who reported a draught on the 26th, which, after a very short and imperfect con- sideration, was confirmed on the 2d day of July.
At this time Congress, impelled by the tide of public opinion, had gone far beyond their resolutions of the 15th of May; and had, actually, resolved on declaring the colonies independent states, thereby severing forever, all politi- cal ties which had connected them with Great Britain. Yet, the convention of New Jersey was not disposed to abandon all hopes of accommodation ; providing in the last clause of their constitution, that if reconciliation between her and the colonies should take place, and the latter be again taken under the protection and government of the crown, the charter should be null and void. This door of retreat was kept open by the fears of the president of the convention, who, in a few months after, claimed the clemency of the
* June, 1775.
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enemy, with whom this clause gave him an interest .* Other clauses of the constitution show also, that it was made for the colony. The laws were to be enacted, and all commissions, writs, and indictments, were to be in the name of the colony. On the loth of July, 1776, the provincial Congress assumed the title of the "convention of the state of New Jersey." And after the declaration of independence, in practice, the commissions and writs ran in the name of the state, the indictments concluded against the peace of the state, and an act of Assembly of 20th September, 1777, substituted the word, state, in all such cases for the word, colony.
'The collision between the views of the continental Congress, and the New . Jersey convention did not escape the reprobation of some of the members of the latter, who moved to defer the printing of the constitution for a few days, that the last clause might be considered by a full House. The . effort, how- ever, was negatived, when not more than half the members were present. It must not hence be inferred, that New Jersey was timid or backward in en- gaging in the contest. She had kept pace with the foremost, and her spirited conduct was the more meritorious, that it had less of the excitement of imme- diate interest, inasmuch, as she had vet felt no burthen, and was not irritated by the vexations of commercial restrictions. She had no ships, no foreign com- merce. Her instructions to her delegates in Congress, chosen on the 21st of June, empowered them to join in declaring the united colonies independent of Great Britain. The convention consisted of sixty-five members, five from each of the thirteen counties, and on the 2d of July when the motion for re- considering the last clause was made, there were present only twenty-five members; of whom, Messrs. Camp, Hardenburg, Joseph Holmes, Mott, Sparks, Cooper, Clark, Elmer, Harris, Bowen, Leaming, Shaver, Shinn, Tallman, Fennimore, Shreve, and Covenhoven, voted in the negative. And Messrs. Frelinghausen, Paterson, Mchelm, Josiah Holmes, Ellis, Sergeant, Symmes, and Dick, in the affirmative. Had the House been full on this vote, the adop- tion of the constitution would have, probably, been delayed, and the character of an independent state, at once fearlessly assumed.
IV. This instrument is styled in the proceedings of the convention, and within itself, a constitution. But it is not such, in the present political sense of this word, in America. A constitution of government may now be defined, a written expression of the will of the people of a state, establishing and limiting unalterably, except by themselves, the political powers therein created. Or it may be deemed a power of attorney from the people to their agents, speci- fying, distinctly, the powers assigned to cach.f The constitution and the government are frequently confounded, and treated as synonymous ; whereas, they are essentially different ; the former being the creator and the law of the latter. The difference between them is not less, than that, between the whole power of the people, and that of their special delegates. Every country has a government, but few have a constitution. The government in England, is by king, lords, and commons, but that nation has no constitution; that is, no instrument restraining the political omnipotence of those agents. No act of theirs can be compared with a designation of their powers, and be thereby corrected or annulled. But, whatever they may do, however oppressive and arbitrary, has necessarily the authority of law. A constitution may create any form of government-may give any quantum of power, less than the whole; for if it give the whole, it destroys itself. And such is the defeet,
* Votes of Assembly, 1776.
# It might be objected, that the convention which framed the constitution, exceeded their powers, or had, in fact, no power to touch the subject -- that they mistook in sup -; posing themselves the people, and that it is essential to the existence of a constitution, that the people should formally and expressly pass upon it. But acquiescence must be deemed assent.
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and such has been, partially, the fate, of the constitution of New Jersey. The only restriction it contains, upon the agents to which it gave being, is found in the twenty-third article, requiring each member of Council and Assembly, to declare, upon oath or affirmation, that he will " not assent to any law, vote or proceeding, which shall appear to him injurious to the public welfare; nor that shall annul or repeal that part of the third section of the charter, which establishes, that, the elections of members of the legislative Council and Assembly, shall be annual; nor that part of the twenty-second section, respecting the trial by jury; nor that shall annul, repeal or alter the eighteenth and nineteenth sections;" which relate to the freedom of religious worship. This specification of things, which the Legislature shall not alter, admits its power to change all others, and puts within its control, the whole form of the government, with the partition of its powers.
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The powers of government are commonly divided into the legislative, executive and judicial branches; though the third is but a modification of the second, since the making and executing the laws, comprise the whole duty of every government. Most of the constitutions of the States of North America, define the manner in which these branches shall be constituted, the powers they shall, respectively, exercise, and protect cach against the other. But, by the constitution of New Jersey, the executive, and judiciary powers, may be remodelled in any way. The office of governor may be vested in an in- dividual for life, or made hereditary-the judges may be appointed for months, for years, or for life-their number be increased or diminished, and their compensation varied. and the courts continued or abolished, at the pleasure of the Assembly-in a word, all the ordinate branches are depen- dent on, and at the mercy of, the legislative. And, with the very inconsi- derable restrictions already noticed, the whole power of the people, for all purposes, is in the hands of their representatives; who are, thus created universal and not special agents, and have no law but their own will.
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We have scen with what extraordinary haste this instrument was formed. Less than two days were employed by the committee in framing, and less than six days by the convention, in considering and confirming, the govern- ment of the state. This would be deemed extraordinary and unprofitable haste, at the present day, when political science is more generally under- stood, the several powers more orderly classified, and models of tried con- stitutions abound. At that period, resort could be had to two models, only, of free government-those of England, and her colonies. In both, the pow- ers of the state were divided between the king, or his representatives, and the representatives of the people. But most of the powers which had been exercised by the royal governors, were held by this convention to have been taken from the people, and were, by it, restored to their representatives; doubtless, in the conviction, that, they were thereby restored to the people. The government of Great Britain was deemed too exceptionable to copy from; and its hereditary executive and hereditary branch of the Legislature, were not congenial with the habits and wishes of the people.
By the constitution of New Jersey, the legislative power is vested in an assembly and council, annually elected by, and from, the people.
The council is composed of one representative from cach county. This allotment seems based upon no political principle. It has regard, neither to extent of territory, nor amount of population; but would seem to be, wholly, arbitrary. 1
The minimum number of the Assembly, was fixed at thirty-ninc. Three members were given to each county, with a like disregard of territorial extent and population. But the Legislature was empowered to diminish.
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the number or proportion of the representatives in the Assembly for any county.
The qualification for a member of the Legislature is, that he should be for one whole year, before his election, an inhabitant and freeholder of the county in which he is chosen .- If for council, that he should be worth one thousand pounds .- If for the Assembly, five hundred pounds, in real or per- sonal estate. Neither mature age, nor citizenship, nor oath of allegiance, are required from the law-giver of the land. But notwithstanding the con- stitution has thus defined the qualification of the representative, the Legisla- ture, exercising the power which it unquestionably possesses, but which would not pertain to it, if the constitution were obligatory upon it, have de- clared, that no alien should hold office; and that every officer shall take a prescribed oath of allegiance. And it has, thus, by the requisition of qualiti- cations not prescribed by the constitution, added to the instrument.
That the Legislature may be preserved as much as possible from all sus- picicn of corruption, no judge, sheriff, or other person possessed of any post of profit, under the government, other than justices of the peace, may sit in the Assembly. But, on taking his seat, his office is vacated. This re- striction does not extend to the council, and was borrowed from the provin- cial laws.
The electors are required to be of full age, worth fifty pounds, clear estate, and to have resided within the county for twelve months previous to the election. This qualification also, has been found in practice too broad; ad- mitting all inhabitants, bond and free, white or black, male or female, native or foreign, citizen or alien; and the Legislature has again exercised its power, over the constitution, by limiting, more narrowly, the qualification of electors; declaring that no person shall vote in any state or county election, unless he be a free white male citizen of the state.
The property qualification required in the electors and elected, is a striking, because the only aristocratic, feature in the constitution. It is copied from the law of the colony, and was introduced, probably, into the constitution, by proprietary influence, which still prevailed in both sections of the province. But the people having since condemned the restriction, the Legislature has removed it from the electors, by declaring, that, every person who shall, in other respects, be entitled to a vote, and who shall have paid a tax for the use of the county, or state, and whose name shall be enrolled on any duplicate list of the last state or county tax, shall be adjudged by the officers conducting the election, to be worth fifty pounds. In practice, the property qualification of the elected, is almost wholly disregarded. Under the royal government, a freehold estate was required in the voter. In the convention, an effort was made to give this franchise to all who paid taxes, and the qualification required by the constitution was probably a composition between the parties.
The Assembly has power, under the constitution, to choose its officers- to judge of the qualification and election of its members-to sit upon its own adjournments-prepare bills-and to empower the speaker to convene the members when necessary. Like powers are given to the council ; except, that, it may not alter any money bill. In this restriction, we have a striking evidence of the haste, and confusion of ideas, under which the constitution was framed. In the British government, the right to grant money is claimed, exclusively, by the commons, because the other branches of the Legislature are presumed to have an interest, and to be subject to an influence, foreign to the mass of the people. The principle was adopted in the colonies, and the right of framing money bills reserved to the Assembly, for the same cause ;--: the governor and council being creations of the crown. But the reason
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