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
"Whitehall, November 14, 1701.
"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,
"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
"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.
"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
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
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
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.