CHAP. XIV.
Observations on
Lord Cornbury's instructions, and the privileges originally
granted to the
settlers, with abstracts of some of them.
ß I. It is
apparent, from the whole tenor of the application from the
proprietors, that
they had constantly in view the reservation of the
principal
privileges they enjoyed; and that their meaning was only to part
with the powers
of government; accordingly in the instrument of surrender,
nothing appears
to be resigned but these; their endeavours therefore to
stipulate
expressly for a fresh confirmation of particular privileges,
seems to have
been owing to an unnecessary diffidence; they were however
so far indulged,
that a draught of the foregoing commission and
instructions was
prepared and shewn to them for their acquiescence,
conformable to
what the Lords of trade in their representation of October
2, 1701, had
proposed.1
ß II. After the
lords commissioners for trade and plantations had prepared
a draught of the
commission and instructions for a new governor, they
referred it to
sir Thomas Lane, and the proprietors, in the words
following;
"Whitehall,
November 14, 1701.
"Sir,
"I am
commanded by the lords commissioners for trade and foreign
plantations, to
send you the inclosed draught of a commission and
instructions for
a governor for his majesty's province of New-Jersey,
prepared by order
of their excellencies the lords justices, that you may
communicate the
same to the proprietors of both the divisions of East
New-Jersey, and
West New-Jersey, for their observation thereupon; which
their lordships
desire may be made and returned to them with all
convenient speed,
in order to such further proceedings as shall be found
necessary, for
the settling that province in a due form of government.
"I am, sir,
your most humble servant,
"WILLIAM
POPPLE.
"To sir
Thomas Lane, Knight and Alderman."
ß III. The report
of the lords of trade to king William 2 upon the same
occasion, not
long before the surrender, was conceived in the terms
following:
"To the
King's most excellent majesty.
"May it
please your majesty,
"Having been
directed by their excellencies the lords justices, upon a
representation,
which we humbly laid before them, concerning the disorders
in your majesty's
provinces of East and West New-Jersey, in America; to
prepare draughts
of a commission and instructions for a governor to be
sent thither by
your majesty, and to consult therein the proprietors of
those provinces,
in order to the surrender of their pretended right to the
government of the
same: We humbly lay before your majesty the draughts
which we have
prepared accordingly, with such clauses as we conceive
proper, to enable
the governor, for whose name we have left a blank, to
proceed in
settling a government in that country, conformable, (as near as
the circumstances
of the inhabitants will permit) to the method of
government,
settled by your majesty's respective commissioners in your
other American
plantations; and withal to prevent the interfering of that
colony with the
interest of those other plantations: We have also in
pursuance of
their excellencies directions, communicated the said draughts
to sir Thomas
Lane, and others, the principal proprietors of West New-
Jersey, and to
Mr. William Dockwra, secretary,3 and others, the principal
proprietors or
East New-Jersey; in behalf of themselves, and the rest of
the proprietors
of both those divisions; which draughts they have
unanimously
approved; and in confidence that your majesty will be
graciously pleased
accordingly to constitute a governor over those
countries, they
have declared themselves willing and ready to surrender
all their right,
or pretence of right to government, which they have
hitherto claimed;
whereupon we humbly request to your majesty, that the
reducing these
colonies to an orderly form of government, under a governor
constituted by
your majesty's immediate commission, will be of great
service to your
majesty, in preventing illegal trade, and the harbouring
of pirates, and will
be of good influence throughout the other
plantations; and
we humbly offer, that Mr. attorney general be directed
forthwith to
prepare a form of a surrender of their said right, or
pretence of right
to government, which may be most effectual to the
extinguishing
their said pretensions, and present the same to your majesty.
"And whereas
they have desired, that the first governor to be thus
appointed by your
majesty, may be a person fitly qualified for that
service; but
cannot agree in the recommendation of any particular person:
We humbly
propose, that when the surrender shall be made, your majesty
would be pleased
to nominate some person wholly unconcerned in the
factions, which
have divided the inhabitants of those parts, all which
nevertheless is
most humbly submitted.
"Wm.
Blathwayt,
"Ph.
Meadows,
"John
Pollexson,
"Abr. Hill,
"Stanford,
"Mat Prior
Whitehall, Jan. 6th. 1701-2."
ß IV. In a
memorial hereafter inserted 4 of the proprietors of West-
Jersey, to the
lords commissioners of trade and plantations, against lord
Cornbury, signed
by sir Thomas Lane, and other 5 proprietors, who signed
the surrender; we
find them recapitulating, several matters, and asserting
that they were
part of the terms of their surrender, and placed as such
among others in the
instructions. And by the assembly's remonstrance, in
1707, it appears,
they thought their privileges more secure than some of
their neighbours,
and fully depended on being protected in the enjoyment
of them.
ß V. Among the instructions
to lord Cornbury are to be found, the principal
matters the
proprietors pointed out as what they desir'd to have reserved,
the articles 9,
14, 15, 16, 36, 37, 38, 45, 51, 52, 53, 86, 87, bear
evident marks
that they were of this number; these and such of the others
as reserve or
reinforce the particular privileges of the proprietors and
inhabitants of
New-Jersey, were doubtless adopted and continued in
consequence of
their application and the onginal grants.
ß VI. If the
instructions to all the succeeding governors are copied from
those to lord
Cornbury, as it is generally understood; such of them as
differ from what
is common to other plantation governors, were intended to
be at the time of
the surrender, and which the foregoing sections seem to
confirm, it is a
farther evidence that they are esteemed, as to the matter
of them, rights
and privileges belonging to the inhabitants of New-Jersey;
and that it has
been and is the intention of the crown to continue them as
such.
ß VII. There does
not appear to have been any design to abridge the
privileges before
enjoyed, nor could it perhaps be legally effected, by
any of the steps
taken before or in the surrender; for many of the
settlers, though
they were actually proprietors, do not seem to have been
parties to the
surrender, either by themselves or any legally constituted
body for them,
except it may be supposed, their approving the thing
without joining
in any one public act to effect it, made them so.
ß VIII. The
proprietors who signed the instrument of surrender, considered
as to the shares
of propriety they held, might be thought of importance
enough to be
denominated the whole, in barely giving up the government;
because they had
not conveyed that: But it no where appears, that they had
any legal power
to represent the settlers in general, in matters wherein
they had admitted
them to share in their property, whether of land or
privilege, and as
to numbers, were but a small part of the proprietors,
and a very small
part of the settlers.
ß IX. Every
settler who complied with the terms of settlement publickly
established, as
well as the purchaser, being entitled to the privileges
purchased or
settled under; it could not be lawful, that the act of any
fellow proprietor
to the last, or landlord to the other, should deprive
them of what, by
the original frame and constitutions of the country, or
particular
agreements, they had a share in; and had been the principal
inducement of
their removing hither to settle.
ß X. That the
civil and religious privileges subordinate to, and derived
from, but not
connected with the powers of government, were the principal
inducement of
many of the settlers, to leave good habitations and remove
hither, none
acquainted with the state of things in the original
settlement can
doubt.
ß XI. If
therefore every purchaser and settler had a right to and property
in the privileges
conveyed to them, and if the ideas of property in
British subjects
are the same in the colonies as in the mother country;
according to
these, nothing but their own act by themselves as
individuals, or
as some way represented in legislation or otherwise, could
deprive them of
it; any thing less would imply an absurdity in the term.
ß XII. That they
had a right, will evidently appear by the following short
view of the
premises; first, by right of discovery it became vested in the
crown; by the
crown it was granted to the duke of York; by the duke to
lord Berkeley and
sir G. Carteret, so to the purchasers immediately under
them, and thence individually
to every freeholder, with the right of the
natives purchased
and amply confirmed to them; hence it is, if these
conveyances were
good, that every freeholder must have a clear
incontestable
right to his freehold, and consequently to every privilege
conveyed with it
as far as these grants will warrant.
ß XIII. In
another view the case may be stated thus; the proprietors said
to the people, if
you will buy this land, you and your posterity forever
shall have these
privileges; for the first you have our hand and seal; for
the other our
publick declarations and concessions solemnly ratified under
our hands,
recorded in the public offices; and for a more compleat
security, most of
them also confirmed by laws in the same manner as the
title and right to
location of many of the lands are founded; hence a
conclusion seems
to follow, that the privileges became a part of the
purchase, and
that the proprietors in the sale of their lands, received a
consideration for
them; and if so, to their birth-right as British
subjects must be
superadded the right of purchase.
ß XIV. It may
possibly be objected as to West-Jersey, that the proprietors
sold or conveyed
the government to Dr. Coxe, and he again conveyed it to
several of those
who were parties to the surrender; supposing this to be
true, it
concludes nothing in the present case; the question is not as to
government, but
privilege in other respects; to bring that into the
argument it must
be proved, first, that the proprietors generally
concurred in the
sale; secondly, that they had power to sell again that
proportion which
had before been conveyed to others; thirdly, that the act
of surrender in
any respect affects it; lastly, that the proprietors of the
Massachusetts, Pennsylvania,
or any other charter government, may or could
by their own act
barely, resign so as to annul or destroy what their
predecessors or
they have conveyed and confirmed to the people; 'till this
is done, the
other, for similar reasons, must be supposed impossible:
Equally
inconclusive must be any argument here as to right of conquest
from what
happened in 1673; if the treaty of Westminster had not restored
things to their
original footing, the last grants, and laws in consequence
of them,
confirming former privileges, and nearly the whole matter
relating to
West-Jersey, bear date since.
ß XV. To argue,
that because there is no express clause in the instrument,
by which the
government was surrendered, reserving the people's
privileges; that
therefore they were not reserved; would be just as
reasonable as to
argue, that because the right to the soil is not there
particularly
reserved, that therefore it was not reserved at all; and yet
it remains to the
possessors without interruption; and the right to every
civil and
religious privilege not cancelled in the act of resignation, nor
since altered by
law, being equally strong as to the forms of authenticity
(however
overlooked or forgot in occasional practice) must be supposed to
retain their
original validity.
ß XVI. From what
has been said, it seems to be evident, that the
proprietors who
signed the instrument of surrender, had it not in their
power, and
therefore could not have intended; nor if they had, can the
words or meaning
of any thing they appear to have transacted, be legally
construed to
extinguish any privilege before derived from the royal
grants, either
relating to liberty of conscience, or matters of privilege
in other cases;
their power of the government only excepted;6 whether
this power was
ever in due form of law granted or not,7 they had enjoyed
it near forty
years; rightly or even tolerably administered, it must
undoubtedly be
considered in the light of a privilege to the inhabitants
in general; as having
their immediate rulers on the spot, ready to see and
redress
grievances, or prevent the occasions of them; induced to it both
by the strong
ties of increasing profit to themselves, and the good of
others; but if we
may compare the latter part of these proprietors
administrations
with the tranquility that has ensued for most of the time
since; and to
this, add the benefits 8 derived from royal attention, and
thence be allowed
to form a judgment; we shall not perhaps see much cause
to regret the
change of situation.
ß XVII. What the
original privileges of the inhabitants of New-Jersey
were, by the
several grants and concessions, and other instruments
beforementioned,
and proprietary laws, will at large appear; some of those
not immediately
connected with government or land affairs, may be known by
the following
abstracts: In East and West-Jersey, before the division.
1. No person
swearing or subscribing allegiance to the king, and
faithfulness to
the proprietors, to be any ways molested, punished,
disquieted, or
called in question, for any difference in opinion or
practice, in
matters of religious concemnient, who did not disturb the
civil peace; but
that all such persons should at all times, freely and
fully have and
enjoy their judgments and consciences, they behaving
themselves
peaceably and not using this liberty to licentiousness.
Concessions and
agreements of the proprietors Carteret and Berkeley, with
the adventurers,
Feb. 10, 1664.
2. By legislative
act to levy taxes, and not otherwise, and this as should
seem most equal
and easy for the inhabitants. ibid.
3. By law to
provide for the support of government. ibid.
4. That cattle
ranging or grazing on lands not appropriated to particular
persons, shall not
be deemed trespassing, but custom not to be plead from
hence, nor any,
purposely to suffer their cattle to graze on such lands.
ibid. In
East-Jersey, after the quintipartite division.
5. That the
courts of session and assize, should be established by the
governor,
council, and representatives, and that appeals from thence,
should be made to
the governor and council, &c. Declaration of sir George
Carteret, dated
July 31, 1674.
6. "Among
the present proprietors, there are several that declare they
have no freedom
to defend themselves with arms; and others who judge it
their duty to
defend themselves, their wives and children, with arms: It
is therefore
agreed and consented to; and they the said proprietors do, by
these presents,
agree and consent, that they will not in this case, force
each other
against their respective judgments and cousciences; in order
whereunto it is
resolved, that on the one side, no man that declares, he
cannot for
conscience sake, bear arms, whether proprietor, or planter,
shall be at any
time put upon so doing, in his own person; nor yet upon
sending any to
serve in his stead; and on the other side those who do
judge it their
duty to bear arms for the publick defence, shall have their
liberty to do it
in a legal way." Fundamental constitutions of East New-
Jersey, A.D.
1683.
7. All persons
acknowledging one almighty and eternal God, and holding
themselves
obliged in conscience to live quietly in civil society; shall
no way be molested,
or prejudged for their religious persuasions and
exercise in
matters of faith and worship, nor be compelled to frequent and
maintain any
place of worship or ministry whatsoever; but none to be
admitted to
places of publick trust, who do not profess faith in Christ
Jesus, and will
not solemnly declare, that he is not obliged in
conscience, to
endeavour alteration in the government, nor does not seek
the turning out
of any in it, or their ruin or prejudice in person or
estate, because
they are in his opinion hereticks, or differ in judgment
from him; but
none under the notion of liberty, by this article, to avow
atheism,
irreligiousness, nor to practice prophaneness, murder, or any
kind of violence;
or indulge themselves in stage-plays, masks, revells, or
such like abuses.
ibid.
8. No person to
be imprisoned or deprived of his freehold, free custom or
liberty, to be
out-lawed, exiled or any other way destroyed, nor be
condemned, but by
lawful judgment of his peers; justice or right to be
neither bought
nor sold, deferred or delayed to any person whatsoever; all
trials to be by
twelve men, and as near as may be, peers and equals, and
of the
neighbourhood, and without just exception; twenty four to be
returned by the
sheriff as a grand inquest, twelve at least to agree in
finding the
complaint to be true; reasonable challenges to be admitted
against the
twelve or peers who have the final judgment, or any of them:
In all courts,
persons of all perswasions to appear in their own way, and
according to
their own manner, and personally plead their own causes, or
if unable, by
their friends; and no person allowed to take money for
pleading or
advice in such cases.9 ibid.
9. All marriages
not forbidden in the law of God to be esteemed lawful,
where the parents
or guardians being first acquainted, the marriage is
publickly
intimated in such places and manner as is agreeable to men's
different
persuasions in religion, and afterwards solemnized before
creditable
witnesses, and duly registered. Ibid.
10. All witnesses
called to testify to any matter or thing in any court, or
before any lawful
authority, to deliver their evidence by solemnly
promising to
speak the truth, the whole truth and nothing but the truth;
and the
punishment of falshood to be the same as in eases of perjury; the
like in cases of
forgery; and both criminals to be stigmatized. Ibid.
11. Forfeited
estates, except for treason or capital crimes, to be
redeemed by the
nearest of kin, within two months, by paying to the
publick treasury,
not above one hundred pounds, nor under five pounds
sterling. Ibid.
In West-Jersey.
12. No cattle
straying, ranging or grazing on any unlocated grounds, to
subject their
owners to damages, but custom of commons not to be pretended
to, nor any
person hindered from legally taking up any such lands.
Concessions and
Agreements, chap. viii.
13. All taxes to
be levied by legislative act. Ibid., chap. xi.
14. As no man or
number of men upon earth, have power or authority to rule
over men's
consciences in religious matters; no person or persons
whatsoever, at
any time or times hereafter, shall be any ways, upon any
pretence
whatsoever, called in question or in the least punished or hurt
in person, estate
or privilege, for the sake of his opinion, judgment,
faith, or worship
towards God in matter of religion. Ibid., chap. xvi.
15. No person to
be deprived of life, limb, property, or any ways hurt in
his or their
privileges, freedoms or franchises, upon any account
whatsoever, without
a due trial and judgment passed by twelve good and
lawful men of his
neighbourhood first had; persons arraigned allowed to
except against
any of the neighbourhood, without rendering a reason, not
exceeding
thirty-five, and with valid reasons against every person
nominated for
that service. ibid., chap. xvii.
16. In all
causes, civil and criminal, proof to be made by the solemn and
plain averment of
at least two honest and reputable persons; upon false
evidence, the
party in civil causes liable to the penalty due to the
person or persons
he or they bear witness against; in criminal causes to
be severely
fined, and for the future disabled from being admitted an
evidence or to
any public employment. ibid., chap. xx.
17. Persons
preferring indictments or informations against others for
personal
injuries, or matters criminal (treason, murder and felony
excepted) to be
masters of their own process, and have power to remit or
forgive as well
before as after judgment and sentence. ibid., chap. xxi.
18. All causes,
civil and criminal, to be decided by the verdict of twelve
men of the
neighbourhood, to be summoned by the sheriff, and no person
compelled to fee
an attorney; but to have free liberty to plead his own
cause; and that
no person imprisoned upon any account whatsoever, should
be obliged to pay
any prison fees. ibid., chap. xxii.
19. All
jurisdictions and their powers to be established by legislative
act.
20. In courts of
justice for trial of causes civil or criminal, all
inhabitants to come
freely into, and attend and hear any such trials,
"that
justice may not be done in a corner, nor in any covert manner; being
intended and
resolved by the help of the Lord, and by these our
concessions and
fundamentals, that all and every person or persons
inhabiting the
said province, shall, as far as in us lies, be free from
oppression and
slavery." ibid., chap. xxiii.
21. The
proprietors and freeholders to have liberty to give their
representatives
instructions, and to represent their grievances; and any
of the electors
upon complaint made of failure of trust or breach of
covenant, to
remonstrate the same to the Assembly.
22. In every
meeting of general Assembly, liberty of speech to be allowed;
and none to be
interrupted when speaking: All questions to be stated with
deliberation, and
liberty for amendment, with power of entering reasons of
protest; and to
have the member's yeas and no's registered: The doors of
the house to be
set open; and liberty given to hear the debates: The
assembly to have
power of enacting laws, provided they be agreeable to the
fundamental laws
of England, and not repugnant to the concessions.
Concessions
aforesaid. See also the first acts of Assembly of West-Jersey.
1 Appendix numb.
xiii.
2 King William
died between this and the surrender, having (its said)
first nominated
lord Cornbury, governor of New-York and New-Jersey, on
account of the
services of his father; who was among the first officers
that after his
landing at Torbay, came over to him with his regiment.
3 Contriver of
the penny-post, in the city of London: Oldmixon, says, he
got his
information of New-Jersey from him; and that he, in the name of
the Proprietors
of East-Jersey, and sir Thomas Lane (who had purchased the
best part of Dr.
Coxe's share of propriety) on behalf of West-Jersey,
waited on the
queen, and made a formal surrender of the sovereiqnty;
reserving all
their rights.
4 Chap. xviii.
5 Every one of
the signers of this, Robert Burrow and William Snelling
excepted, had
signed the instrument of surrender.
6 See the queen's
acceptance: And for the advantage of a ready view, as to
the meaning of
the surrender, let the terms used in the instrument, be
here attended to,
viz. "All these the said powers and authorities, to
correct, punish,
pardon, govern, and rule all or any of her majesty's
subjects, or
others, who now inhabit, or hereafter shall adventure into,
or inhabit within
the said provinces of East-Jersey and West-Jersey, or
either of them;
and also to nominate, make, constitute, ordain, and
confirm any laws,
orders, ordinances and directions, and instruments for
those purposes,
or any of them; and to nominate, constitute or appoint,
revoke,
discharge, change, or alter any governor or governors, officer or
ministers, which
are or shall be appointed, made or used within the said
provinces, or
either of them; and to make, ordain, and establish any
orders, laws,
directions, instruments, forms or ceremonies of government
and magistracy,
for or concerning the government of the provinces
aforesaid, or
either of them; or on the sea in going and coming to or from
thence; or to put
in execution, or abrogate, revoke or change such as are
already made,
for, or concerning such government or any of them, &c."
7 We see the proprietors
themselves seem to give into such a doubt in the
instrument of
surrender.
8 An act
prescribing the forms of declaration of fidelity, the effect of
the abjuration
oath, and affirmation, instead of the forms heretofore
required, &c.
Confirmed and rendered perpetual by the king in council, at
St. James's May
4, 1732. A succession of beneficial paper money acts on
loan, confirmed,
but now expired. Another for acknowledging deeds, and
declaring how the
estate or right of a feme covert may be conveyed or
extinguished.
Confirmed and rendered perpetual by the king in council, at
Kensington,
August 22, 1746. Another for ascertaining the officers fees,
ibid. at St.
James's,
November 23,
1749. &c.
9 This last
afterwards altered by an instruction to Basse, while he
exercised the
office of governor in East Jersey, and fixed to be, that
none should
practice without license from the governor.