CHAP. XIV.

 

Observations on Lord Cornbury's instructions, and the privileges originally

granted to the settlers, with abstracts of some of them.

 

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

 

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."

 

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."

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.