USA > New Jersey > The history of New Jersey, from its discovery by Europeans, to the adoption of the federal Constitution > Part 8
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VI. In 1677, the promised commissioners were sent out, by the proprieta- ries, to administer the government, pursuant to the concessions .** They embarked on board the Kent, Gregory Marlow, master, the second ship from London, to West Jersey. Whilst on the Thames, Charles II., in his pleasuring barge, came along side, and observing the number of passengers, . and learning whither they were bound, asked if they were all Quakers, and gave them his blessing. After a tedious passage, they arrived at New Castle, on the 16th of August; and soon after, two hundred and thirty, land- ed at the mouth of Raccoon creek, where the Swedes had some habitations. Notwithstanding their number, the greatest inconvenience which they suffer- ed, was want of room for lodgings; and some terror, from the abundance of
* Dated 1st July, 1676.
t Leaming and Spicer's Collection.
26th August, 1676.
§ The surveyor proposed for this duty, was a certain Augustin, of Maryland, or William Elliot, of York river, Virginia.
|| See Appendix, E.
These commissioners were Thomas Olive, Daniel Wills, John Kinsey, John Penford, Joseph Helmsley. Robert Stacy, Benjamin Scott, Richard Guy, and Thomas Foulke. Richard Guy came in the first ship. John Kinsey died at Shackamaxon, Kensington, soon after his landing; his remains were interred at Burlington, in ground appropriated for a burial ground, but now a street .- Smith's New Jersey.
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snakes, which were occasionally seen in their chambers, or crawling over the low roof's of their dwellings .* The vessel on the passage had dropped anchor nt Sandy Hook. whilst the commissioners proceeded to New York, to exhibit their commission to Andross. He treated them civilly, but demand- ed, if' they had any communication from the Duke, his master. This mea- sure, obviously requisite, the commissioners had strangely neglected, and when Andross declined to recognise their authority, instead of extenuating their imprudence, they strenuously insisted upon their rights, under the assign- ment of Lord Berkeley. Andross cut short the controversy, by pointing to his sword; and as this was an argument, which they could not retort, they submitted to his jurisdiction, until they could obtain redress from England; taking magistrate's commissions from him, and conducting the land affairs according to their instructions. Fenwicke, who neglected to take a like pre- caution, in relation to his tenth, was twice seized, and detained, some time, prisoner, in New York.
Upon their arrival in the Delaware, the commissioners obtained, from the Swedes, interpreters, by whose agency they conducted their negotiations with the Indians, and purchased the lands from Timber Creek to Rancocus, from Oldman's Creek to Timber Creek, and from Rancocus to the Assun- pink, by three several conveyances.+ Not having sufficient goods to make payment for the land last purchased, they covenanted not to settle any por- tion of it, until full payment should have been made. After examination of the country, the Yorkshire commissioners, Helmesly, Emley, and Stacy, on Ir.half of their constituents, chose the tract between Rancocus, and the Falls, which hence was called the first tenth; whilst the London commissioners, Penford, Clive, Wills and Scott, selected that below Timber creek, which was called the second tenth. Disastisfied, however, with this separation, the Yorkshire men proposed to the Londoners, that, if they would unite in establishing a town, the latter should have the larger proportion, in conside- ration, that the Yorkshire men had the better land in the woods. These terms were embraced, and one Noble, a surveyor who came in the first ship, was employed to lay out the town plot, running the main street and dividing the land on either side, into lots, giving those on the east, to the Yorkshire, and those on the west, to the London, proprietors. The town thus founded, wa's first called New Beverly, after Bridlington, but the name was soon changed to Burlington, which it now bears.§
These pioneers having arrived late in the autumn, the winter was much st* nt, before they could erect permanent dwellings. In the mean time, they lived in wigwams, built after the manner of the Indians, and subsisted chiefly on Indian corn and venison, supplied by the natives. These simple people, les corrupted, than they afterwards became, from the use of ardent spirits, were kind to their guests, notwithstanding some malicious insinuations, that the strangers had sold to them the small pox in their match coats; that distemper having attacked them at this period.
VII. In the same year arrived two other vessels. The Willing Mind, John Newcomb, commander, with about seventy passengers, dropped anchor, at El-inburg, in November. She was soon after followed, by the fly boat, Martha, of Burlington, Yorkshire, with one hundred and fourteen. On the 10th December, 1765, came The Shield, from Hull, Daniel Townes, com- mander. When passing Coaquanock, the site of the present city of Phila- delphia, she ran so close to the shore, that in tacking, her spars struck the
· Sinith's N. J.
Dated, respectively, 10th September, 27th September, and 10th October, 1677.
: Smith's N. J. § See Appendix, F.
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trees, and some one on board remarked, how fine a spot this was for a town. A fresh gale brought her to Burlington, being the first vessel that came so far up the Delaware. She moored to a tree, and the next morning the pas- sengers came ashore on the ice. About the same period, another ship arrived from London, freighted with passengers .*
Although compelled to endure the hardships inseparable from the occupa- tion of a desert land, these were quickly surmounted, by the industry and patience of the cmigrants. Their town soon assumed a thriving appearance, and was rapidly enlarged by increasing members. In this, as in other, infant settlements of America, the success of the colonist was commonly propor- tioned to the original humility of his condition; and he, who emigrated as a servant, was frequently more prosperous than his master. Persevering in- dustry, temperance, and self-reliance, always reaped a full reward, whilst self-indulgence, and dependence upon hirelings, terminated in poverty.
VIII. Sir George Carteret, proprietary of East Jersey, died in 1679; having derived so little benefit from his American territory, that he found it necessary to bequeath it to trustees, to be sold for the benefit of his creditors. The exemption, this district enjoyed, from the jurisdiction of the Duke of York, had not contributed to moderate the discontent of the inhabitants of West New Jersey, with his assumed illegal authority. They, incessantly, importuned him for redress, and were, at length, provoked by a tax of five per cent., which Andross imposed, on the importation of European merchan- dise, to additional vehemence of complaint, and urgency of solicitation. Wearied, at length, with the importunity of these suitors, rather than moved by the justice of their complaint, the Duke referred the subject to commis- sioners, by whom, it was finally submitted to Sir William Jones.t
The argument, in behalf of the colonists, on this occasion, prepared by William Penn, George Hutchinson, and others, chiefly Quakers, breathes a firm, undaunted spirit of liberty, worthy the founders of a North American commonwealth; and contains traces of those principles, which, subsequently, led the colonies to full emancipation.# " Thus then," they say, after a deduction of their title, " we came to buy that moiety, which belonged to Lord Berkeley, for a valuable consideration; and in the conveyance he made us, powers of government are expressly granted ; for that, only, could have indneed us to buy it : and the reason is plain, because to all prudent men, the government of a place is more inviting than the soil. For what is good land without good laws !- the better the worse. And if we could not assure people, of an easy, and free, and safe government. both with respect to their spiritual and worldly property,-that is, an uninterrupted liberty of conscience, and an inviolable possession of their civil rights and freedoms, by.a just and wise government .- a mere wilderness would be no encourage- ment; for it were madness to leave a free, good, and improved country, to plant in a wilderness, and there adventure many thousands of pounds, to give an absolute title to another person, to tax us at will and pleasure." Stating the tax imposed by Andross, they proceed : " This is one grievance ; and for this, we make our application to have speedy redress, not as a burden only, with respect to the quantum or the way of levying it, or any circum- stance made hard by the irregularity of the officers, but as a wrong; for
* See Appendix, G. t Grahame's Col. Hist. vol. ii. 344.
# This document, found in Smith's History, is unnoticed by Chalmers ; and is im- perfectly abridged by Winterbotham (vol. ii. p 2-7). Grahame (vol. ii. p. 346) admits that Penn concurred in its presentation, and, probably, assisted in its composition ; but denies that he was the sole anthor, as some of his biographers have insisted ; sup- posing this pretension to be refuted, by the style of the document; in which, not the slightest resemblance is discernible, to any of his acknowledged productions.
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we complain of a wrong, done us, and ask, yet, with modesty, quo jure ? Tell us the title, by what right or law, are we thus used, that may a little mittente our pain? Your answer, hitherto, hath been this. That it was a conquered country ; and that the King, being the conqueror, has power to make laws, raise money, &c .; and that this power jure regale, the King hath vested in the Duke; and by that right and sovereignty, the Duke de- mands that custom we complain of. Natural right and humane prudence, oppose such doctrine all the world over ; for what is it, but to say, that peo- ple, free by law, under their prince at home, are at his mercy in the planta- tions abroad ; and why ? because he is a conqueror there, but still at the hazard of the lives of his own people, and at the cost and charge of the public. We would say more, but choose to let it drop. But our case is better yet; for the King's grant, to the Duke of York, is plainly restrictive to the laws and government of England. Now the constitution and go- verment of England, as we humbly conceive, are so far from countenanceing such authority, that it is made a fundamental in our constitution, that the King of England cannot, justly, take his subject's goods without their con- seut. This needs no more to be proved than a principle ; 'tis jus indigene, an home-born right, declared to be law by divers statutes."-" To give up the power of making laws, is to change the government, to sell, or rather, to resign, ourselves to the will of another; and that for nothing. For, under favour, we buy nothing of the Duke, if not the right of an undisturbed co- lonizing, and that, as Englishmen, with no diminution, but expectation of some increase of those freedoms and privileges enjoyed in our own country; for the soil is none of his; 'tis the natives, by the jus gentium, the law of na- tions; and it would be an ill argument to convert them to Christianity, to expel, instead of purchasing them, out of those countries. If then, the coun- try be theirs, it is not the Duke's: he cannot sell it; then what have we bought !"-"To conclude this point, we humbly say, that we have not lost any part of our liberty, by leaving our country; for we leave not our King, nor our government by quitting our soil ; but we transmit to a place given by the same King, with express limitation to erect no polity contrary to the same established government, but as near as may be to it; and this varia- tion is allowed, but for the sake of emergencies, and that latitude, bounded by these words, for the good of the adventurer and planter." After this, as they term it, the " point of law" of the case, they proceed to insist upon the equity of it; protesting that the "tax is not to be found in the Duke's con- vevances; that it was an after business, a very surprise to the planter."- " This, in plain English, is under another name, paying. for the same thing twice over."-"Custom, in all governments in the world, is laid upon trade; last this, upon planting, is unprecedented. Had we brought commodities to three parts to sell, made profit out of them, and returned to the advantage of traders, there had been some colour or pretence for this exaction ; but to require and force a custom, from persons, for coming to their property, their www terra firma, their habitations; in short, for coming home, is without a parallel. This is paying custom, not for trading, but for landing; not for merchandising, but planting."-" Besides there is no end of this power; for siner we are, by this precedent, assessed without any law, and thereby ex- eluded our English right of common assent to taxes; what security have we of any thing we possess? We can call nothing our own, but are tenants at will, not only for the soil, but for all our personal estates. We endure ponury, and the sweat of our brows, to improve them, at our own hazard, univ. This is to transplant, not from good to better, but from good to bad. This sort of conduct has destroyed government, but never raised one to any true greatness; nor ever will, in the Duke's territories, whilst so many coun- F
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HISTORY OF NEW JERSEY.
tries, equally good, in soil and air, surround, with greater freedom and security. Lastly, the Duke's circumstances, and the people's jealousies, considered, we humbly submit it, if there can be, in their opinion, a greater evidence of a design, to introduce an unlimited government, than both to exact such unterminated tax from English planter's, and to continue it, after so many repeated complaints. And on the contrary, if there be any thing so happy to the Duke's present affairs, as the opportunity he has to free that country with his own hands, and to make us all owers of our liberty, to his favour and justice: So will Englishmen, here, know what to hope for, by the justice and kindness he shows to Englishmen there ; and all men, to see the just model of his government in New York, to be the scheme and draught in little, of his administration in Old England, at large, if the crown should ever devolve upon his head."
Unpalatable as this argument must have been to the British court, and the counsellors of the Duke, at this period, it was triumphant. The commis- sioners were constrained to pronounce judgment, in conformity with the opinion of Jones, "that as the grant to Berkeley and Carteret, had reserved no profit or jurisdiction, the legality of the tax could not be defended." The Duke, therefore, without further delay, abandoned all claims on West Jersey, confirming the territory, or soil of the province, in the fullest terms, to Wil- liam Penn, Gawn Lawry, and Nicholas Lucas, trustees for Byllinge, and to John Eldridge, and Edmund Warner, assignees of Fenwicke, according to their several interests, whilst he conveyed, expressly, the government to Ed- ward Byllinge, his heirs and assigns .* And soon after, he made a like confirmation, in favour of the representatives of his friend, Sir George Carteret.t
The forcible and spirited pleading, we have noticed, derives special inte- rest, from the recollection of the conflict, then waging between the advocates of liberty, and the abettors of arbitrary power. Probably, none of the writings of which that period was, abundantly, prolific, was characterized by a more magnanimous effort, for the preservation of liberty, than this first successful vindication, of the rights of New Jersey. Its most remarkable feature, is the strong and deliberate assertion, that no tax could be justly imposed upon them, without their consent. The report of the commissioners, and the relief that followed, was a virtual concession of this principle, which subsequently triumphed more signally, in the independence of the United States .¿
* Indenture. dated 6th August, 1690.
t 14th March, 1682. Leaming and Spicer's Collection. .
# The case between the proprietaries and the Duke, relative to the government, is of some complexity; and from inspection of the documents alone, his pretensions have better grounds than his advocates appear to have assumed for him. The char- ters of Charles II., to him, in addition to a full foc simple estate, in land, contain an express grant of the powers of goverment; whilst the deeds from the Duke to Berkeley and Carteret, convey a " tract of land." specifically bounded, as in the transfer of a private estate. There is not the slightest allusion to the powers of government in them; and the special care taken to give such powers, in the one case, and to omit them in the other, would be a strong argument. that they were not designed to be granted, if such argument were needed, in the total absence of a grant. It certainly never can be maintained. that, a fee simple, in land. carried with it a political power of government. In all cases where this power was intended to be conveyed, apt words were employed, as in the grants to the Duke of York, to Balti- more, and Penn. Berkeley could convey no other right than he possessed, nor did he attempt it, since that is not asserted in the plea of the New Jersey proprietaries .- Nor in the deed, quintipartite of partition, between Carteret, and the grantees of Berkeley, is there any reference to the powers of government. So far, then, the case would seem to be clearly, that the Duke had retained the integrity of his political powers, as granted him by the crown. But against this paper case, there is strong circumstantial evidence. 1. The assumption, and undisputed exercise of political
-
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IX. But, if we condemn, severely, the tenacious hold of power, on the part of the Duke, how shall we characterize the pretensions of Byllinge, always it to the exclusive grant of the government to him ? His conduct atko.d. an additional instance of the corrupting force of power, and of human unsisteney. He asserts, as grantce of Berkeley, that he became the par- tapant of political power, even by a deed for lands only; but, when that power was expressly and unequivocally conveyed to himself, he denies the grant of similar power, to his assigns, though he is a party to the " conces- mots," by which it was clearly conveyed; under the pretence, it would wwin, that as such power was not then with him, he could not grant it, and though he had himself, taken the office of governor, by the election of the proprietaries. That his exclusive gubernatorial power might be known and felt, he proposed to remove Jennings, whom he had appointed his deputy, under his delegated powers, in 1679.
X. The proprietaries, in General Assembly of the province, in June, 1663, met this pretension with due firmness and spirit; resolving, that they had purchased the land and government together; that, in their deeds, Byllinge, the grantor, had covenanted, within seven years, to make further assurance of title, and was now bound, as they were, to fulfil his contracts; that the " concessions" were adopted by proprietaries and people, as the foundation of the government of West New Jersey, by which they were resolved to Mand; and that " an instrument be drawn up and sent to some trusty friends in London, for Edward Byllinge to sign and seal; whereby, to confirm his first bargain and sale, he made to the frecholders of this province, of land and government together." They further resolved, that upon such confir- ination, they were willing to testify their gratitude, as their ability would formit; and should Byllinge visit the province, to show their free and unani- mous acceptance, and acknowledgments of his care and diligence in the prices. This subject, it would seem, had been some time under dis- cussion, before the Assembly was wrought to these resolutions; and Wil- liam Penn had recommended that the people should secure themselves, by the election of Jennings, to the office of Governor, and his promise to exe- cute the place, with fidelity and diligence, according to the laws, concessions, and constitutions of the province. This expedient, certainly not flattering to Byllinge, the Assembly adopted, and proclaimed Jennings governor, by virtue of the power vested in six parts in seven, of their body, to alter their constitution ; and they bestowed the right to six hundred acres of land, to prav the charges of the office. Upon this occasion, the governor, and all the officers, under the government, signed written engagements, faithfully to perform their duty .*
power, by Berkeley and Carteret. openly promulgated in their concessions. 2. The sortender of the government, by Nicholls, the agent of the Duke, to them, after remon- atrance, apainst such a measure, by that agent. 3. The re-grant of the soil, and the wuffrance of the resumption of political power, by the Duke, after the conquest, and re- conquest, by the Dutch ; and 4th. the continued and unquestioned exercise of such power, by Bylhinge, and his assigns, and by Carteret, after partition made. These ste farts strangely at variance. with the deeds, and no one can suppose their exist- ehre, against an adverse claim, on the part of the heir apparent to the crown. And it is not the least singular part of the case, that whilst the Duke claims a partial politi- cal right, that of laying taxes, he suffers undisturbed, the exercise of independent poseraments, in East and West Jersey. We must, therefore. believe, that there was an naphed grant of political power, in the conveyance of the soil, which was too strongly confirmed by more than twenty years enjoyment, to be defeated. Yet, under there circumstances, the ready acquiescence of the Duke, in the award of the com- missioneis, is extraordinary, when his love of power, and his tyrannical measures, agunst other colonial governments, are considered.
. See Appendix, HI.
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Subsequently, at an Assembly, convened on the 29th of March, 1684, Governor Jennings, and Thomas Budd, were deputed to negotiate this matter, in England; and two hundred pounds were voted for their expenses, which were advanced by governor Penn, then in Philadelphia; for the repayment of which, three thousand acres of land, were appropriated, above the falls of the Delaware. Upon his departure, Jennings nominated Thomas Clive, his deputy, who was duly elected governor, in May, 1684, and May, 1685. These measures, on the part of the Assembly, seem to have been attended with the desired effect. A new charter, the precise nature of which, we are left to conjecture, was given by Byllinge, and deposited by the Assembly, in the custody of Clive and Gardiner, their treasurer, and directed to be recorded. This instrument, probably, restored the government to the footing of the " concessions;" and John Skeine was received as the deputy governor, of Byllinge, although the Assembly had, before, rejected Welsh, who had been appointed to the office. Skeine died in February, 1688 .*
XI. Upon the death of Byllinge, in 1687, Dr. Daniel Coxe, of London, already a large proprietary, at the instance of other proprietaries, purchased the interest of Byllinge's heirs, in the soil and government. Soon after, (September 5, 1687) he addressed a letter to the council of proprietors in New Jersey, communicating this matter, and reviving the repudiated claim of Byllinge; declaring, " that the government of the province was legally in him, as that of Pennsylvania in Penn, or East Jersey in the proprieta- ries; and that he was resolved, by the assistance of Almighty God, to exer- cise the jurisdiction to him conveyed, with all integrity, faith, fulness, and diligence, for the benefit and welfare of those, over whom, Divine Pro- vidence had constituted him superintendent, or chief overseer. But as he confirmed the " concessions," and thereby, in fact, transferred, as Jennings had done, the full right of government, to the proprietors, jointly, his naked assertion of exclusive right, appears to have excited no uneasiness in the province. Smith informs us, that, Coxe received the appointment of governor from the proprietaries, and continued in that station until the year 1690; that, in the interval, Edward Hunloke was, at one time, his deputy ; and that a like commission had been sent to John Tatham, who, being a Jacobite, was rejected by the Assembly. In 1691, Dr. Coxe conveyed the government to a company of proprietaries, called the West Jersey Society, in considera- tion of nine thousand pounds sterling, who, in 1692, appointed Andrew Ha- milton governor. This view of the governmental question, has carried us in advance of other portions of our subject, to which we now return.
XII. West Jersey, now filled apace with inhabitants; the greater portion of whom were Quakers. Jennings couvened the first Assembly, on 25th November, 1681. This body enacted certain fundamental constitutions, and many laws. Pursuing the spirit of the " concessions," they, in the first, provided, for the annual election and meeting of the Assembly; the obliga- tion of the laws by them enacted; the appointment and removal by them, of all officers of trust ; that no tax or custom should continue longer than one year ; and that no one should be incapable of office, by reason of his faith and worship. They prohibited the governor and council, from enacting laws, laying any tax, sending ambassadors, or making treaties, and from proroguing or dissolving that house; and declared, that, upon Jennings' acceptance of these conditions, they would recognise him as deputy go- vernor. These " constitutions were duly signed by Samuel Jennings, de- puty governor, and Thomas Clive, speaker. It would be difficult to find
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