CHAP. XVII.
The Assembly's
reply to Lord Cornbury's letter to their remonstrance.
The assembly did
not immediately go upon the consideration of a reply,
having before
them the treasurer, Peter Fauconier's accounts, in which
they found many
articles extraordinary in their nature, several of them
being paid by
Cornbury's order barely, and the whole without vouchers;
they sent for
him; he attending, refused to lay his vouchers before them
without the
governor's commands; two members were sent to the governor, to
desire him to
order the treasurer to lay the vouchers of his accounts, and
the orders for
the payment of the sums therein mentioned before them; the
governor said, he
had already ordered it, though it was what he could not
legally do,
because the lord high treasurer had appointed an auditor
general for the
province, and he not being in it, had deputed one to audit
the accounts, and
that the treasurer was accountable only to the lord high
treasurer; but if
the house was dissatisfied with any articles in the
accounts, and
thought proper to apply to him, he would satisfy them: This
was not done; and
the accounts, extraordinary as they were, remained
unsettled 'till
Hunter's administration several years after. Several bills
of consequence
were now also under consideration; but Cornbury,
apprehensive,
that if he suffered the sessions to continue much longer, it
would produce
something not to his advantage, on the 16th adjourn'd the
house 'till the
next September, to meet him at Amboy. In the October
following they
met accordingly: The first thing now concluded on, was a
reply to the
foregoing auswer to their remonstrance; next place, they
resolved N. C. D.
that they would raise no money 'till the governor
consented to redress
the grievances of the country; which if he did, they
would raise
£.1500, for support of government for one year.
On the 28th, the
house sent a committee to acquaint the governor, that
having seen his
answer to their remonstrance in print, they thought fit to
make a reply to
it, and desired to know when he would admit them to wait
on him with it;
the governor said, he would return an answer in due time;
they waited for
his message 'till next day, and then concluding he
intended to elude
giving them opportunity of presenting, it, sent a
committee with
it, but he would not receive it;1 upon which they ordered
it to be entered
in their journal, as follows:
"May it
please your excellency,
"WE, the
representatives of this her majesty's province of New-Jersey,
finding her
majesty's subjects greatly, and as we are very well satisfied
with good reason,
aggrieved; thought we could not answer the trust reposed
in us by our
country, should we not endeavour to get those hardships
removed under
which they labour.
"It was
needless to hunt after imaginary grievances, real ones in too
great numbers
presenting themselves; and though from you we have missd of
obtaining that
relief that the justice of our complaints intituled us to;
yet we do not
dispair of being heard by her sacred majesty, at whose royal
feet we shall in
the humblest manner lay an account of our sufferings; and
however
contemptible we are, or are endeavoured to be made appear, we are
persuaded her
majesty will consider us as the representatives of the
province of
New-Jersey, who must better know, what are the grievances of
the country they
represent, than a governor can do, who regularly ought to
receive
informations of that kind from them; and we do not doubt that
glorious queen will
make her subjects here as easy and happy as she can.
"When we
told your excellency, we had reason to think some of our
sufferings were
very much owing to your excellency's long absence from
this province,
which rendered it very difficult to apply to your lordship
in some cases
that might need a present help, we spoke truth; and
notwithstanding
all your excellency has said of a months or twelve weeks
in a year, and
the weekly going of a post; we cannot be perswaded to
believe, that
nine months and upwards in a year, is not a long absence,
especially when
the seal of the province is carried and kept out of the
government all
that time; and the honourable colonel Ingoldsby, the
lieutenant
governor, so far from doing right, that he declined doing any
act of government
at all; whether he governs himself by your excellency's
directions or
not, we cannot tell; but sure we are, that this province
being as it were
without government for above nine months in a year, we
must still think
it a great grievance, and not made less so by carrying
the seal of the
province to New-York, and laying her majesty's subjects
under a necessity
of applying from the remotest part of this province, for
three parts of
the year and better, to your excellency at fort Ann, in New-
York, from which
place most of the commissions and patents granted during
your excellency's
absence, are dated, (by what authority we shall not
enquire)
notwithstanding a lieutenant governor resides in the province,
and is by her
majesty's commission impowered to execute the queen's
letters patents,
and the powers therein contained, during your
excellency's
absence from this province of New-Jersey; without which
powers given and
duly executed, a lieutenant governor is useless and an
unnecessary charge;
and we cannot think, that her sacred majesty, who
honoured that
gentleman with so great a mark of her royal favour, as
giving him a
commission for lieutenant governor of New-Jersey, did at the
same time inhibit
him from executing the powers therein exprest.
"Things are
sometimes best illustrated by their contraries; and
perhaps the most
effectual way to convince the world, that this complaint
is frivolous and
untrue, as by your excellency alledged, would be, for
your excellency
to bring the seal of the province of New-York to
Burlington, keep
it there, and do all the acts of government relating to
the province of
New-York, at Burlington, in New-Jersey, for about three
fourths of a
year, and let the lieutenant governor reside at New-York
during that time,
without doing any act of government, adjourn their
assemblies on the
very day, or day before they are to meet, that they may
not lose the
advantage of travelling to New-York, from the remotest part
of that province,
and at a time when it cannot be done without the utmost
prejudice to
their affairs; it's hardly probable they would be pleased
under such an
administration, notwithstanding the ease of informing your
excellency every
week by the post, of any emergency that might happen.
"We are apt
to believe, upon the credit of your excellency's assertion,
that there may be
a number of people in this province who will never be
faithful to, or
live quietly under any government, nor suffer their
neighbours to
enjoy any peace, quiet nor happiness, if they can help
it; such people
are pests in all govemments, have ever been so in this,
and we know of
none who can lay a fairer claim to these characters than
many of your
excellency's favorites.
"What malice
and revenge were in the prosecution of the condemned persons,
we don't know; we
never heard of any 'till now, and hardly can be
persuaded to
believe it's possible there should be in both the instances.
"It is not
impossible, there might be malice in the prosecution of the
woman who was condemned
for poisoning her husband; there not being (as is
said) plain proof
of the fact, but it was proved she had attempted it
before more than
once; and there were so many other concurring
circumstances as
did induce the jury, who were of the neighbourhood (and
well knew her
character) to find her guilty, and it is hardly probable
their so doing
was an act of malice.
"The woman
who murdered her own child, did it in such a manner, and so
publickly, that
it is unreasonable to suppose there could be any malice in
the prosecution
of her, and we cannot think (notwithstanding your
excellency's
assertions) that you can or may believe there was. This woman
was a prisoner in
the sheriff's custody for breach of the peace, and going
about some of the
household affairs the sheriff employed her in, with a
knife in her
hand, her child who was something froward, followed her
crying; upon
which the mother turned back to it and cut its throat; but
not having cut it
deep enough, the child still followed her all bloody,
and crying, O!
mother you have hurt me; the mother turned back a second
time, and out it
effectually, and then took it up and carried it to the
sheriff or his
wife, at whose feet she laid it: How far such a wretch is
entitled to the
queen's favour, her majesty can best tell, when she is
made acquainted
with the fact; but sure we are, she never gave your
excellency the
power of pardoning wilful murder:
Whether your
excellency has or has not reprieved them, you best know,
and are only
accountable to her majesty for your procedures therein; tho'
we have too much
reason to believe, the favourable opinion your excellency
has so publickly
expressed of her, has been a great reason to induce her
to make her
escape, which she has done. ---- We thought it our duty,
humbly to
represent that matter to your excellency's consideration, and
had reason to be
apprehensive of the judgments of almighty God, whose
infinite mercy
has hitherto suspended the execution of his justice,
notwithstanding
that great provocations have been given him, by impiety,
prophaneness and
debauchery, under the mask of a pretended zeal for his
glory, and love
for his church: It is not our business to enter into
religious
controversies; we leave them to divines, who ought best to
understand things
of that nature, and who may perhaps inform us what is
meant by denying
the very essence of the saviour of the world.
"We cannot
yet be persuaded, that an innocent person should pay fees; what
the practice in
England is, we did never enquire, but believe, that
persons acquitted
by a grand jury, do not pay those extravagant fees they
are made to pay
here; we did not govern ourselves by the practice there,
but the
unreasonableness of the thing; and your excellency does grant,
that what we say
is in some measure to be allowed, were the juries in this
country such as
they ought to be; we hope they are, and our experience has
not convinced us,
that persons who under pretence of conscience refuse an
oath, have yet no
regard for the oaths they take, as your excellency says.
The temptations
to resentment prove often too powerful, and irresistably
engage us in
unbecoming heats, and when the characters of men are written
with pens too
deeply dipt in gall, it only evinces a want of temper in the
writer. Our
juries here are not so learned or rich as perhaps they are in
England; but we
doubt not full as honest. We thought the only office for
probate of wills
was at Burlington; but your excellency has convinced us,
that it is
wherever your excellency is, and consequently may be at York,
Albany, the east
end of Long-Island, or in Connecticut, or New-England, or
any place more
remote should your excellency's business or inclination call
you there; which
is so far from making it less a grievance, that it rather
makes it more so;
and notwithstanding those soft, cool, and considerate
terms of
malicious, scandalous and frivolous, with which your excellency
vouchsafes to
treat the assembly of this province; they are of opinion,
that no judicious
or impartial men, will think it reasonable, that the
inhabitants of
one province should go into another to have their wills
proved, and take
letters of administration at Fort Ann, from the governor
of New-York, for
what should regularly be done by the governor of
New-Jersey in
Jersey, to which place all the acts of government relating
to New-Jersey,
are limited by the queen's letters patents under the great
seal of England;
and when your excellency is absent from New-Jersey, to
be executed by
the lieutenant governor; and by the said letters patents not
the least colour
of authority is given to your excellency, to do any act of
government
relating to New-Jersey, any where but in Jersey; nor is there
any instruction
(that we know of) contradicting the said letters patents
any where upon
record in this province, to warrant your excellency's
conduct in that
affair: If this be not cause, and just cause of complaint,
we do not know
what is; we are inclined to believe, the province of
New-York would
think it so, were they to come to Amboy or Burlington,
to prove wills,
&c.
"We do not
think, that what we desire, is an invasion of the queen's
right; but what
her majesty, without infringement of her prerogative
royal, may assent
to; and their late majesties of blessed memory, did, by
their governor
colonel Fletcher, assent to an act made in New-York, in the
year 1692,
entitled, An act for the supervising intestates estates, and
regutating the
probate of wills, and granting letters of administration;
by which the court
of common pleas in the remote counties of that
province, were
impowered to take the examination of witnesses to any will
within their
respective counties, and certify the same to the secretary's
office; and the
judges of the several courts in those remote counties,
impowered to
grant probates of any will, or letters of administration, to
any person or
persons, where the estate did not exceed £.50; what has been
done there may
with as much reason be done here, without sacrificing the
queen's
prerogative royal to the humours or caprices of any person or
persons
whatsoever.
"It is the
general assembly of the province of New-Jersey, that complains,
and not the
quakers, with whose persons (considered as quakers) or
meetings we have
nothing to do, nor are we concerned in what your
excellency says
against them; they perhaps, will think themselves obliged
to vindicate
their meetings from the aspersions which your excellency so
liberally bestows
upon them, and evince to the world how void of rashness
and inconsideration
your excellency's expressions are, and how becoming it
is for the
governor of a province to enter the lists of controversy, with
a people who
thought themselves entitled to his protection of them in the
enjoyment of
their religious liberties; those of them who are members of
this house, have
begged leave in behalf of themselves and their friends,
to tell the
governor, they must answer him in the words of Nehemiah to
Sanballat,
contained in the 8th verse of the 6th chapter of Nehemiah, viz.
There is no such
thing done as thou sayest, but thou feignest them out of
thine own heart.
"We are so
well assured the fact is true, that the secretary's office
is kept at
Burlington only, that we still are of opinion it is a grievance,
for the reasons
we have assigned; the proprietors records has not any
thing to do with
the secretary's office, but is an office wholly belonging
to the
proprietors, and altogether at their disposal; and is not a
secretary's office
kept at Amboy, either as far as the nature of the thing
requires or can
admit of, or any way at all.
"And as the
assemblies and courts sit alternately at Amboy and Burlington,
so it is highly
reasonable the secretary's office should be kept
alternately also
at both these places, or by deputy in one of them, and
may be very well
done without making two secretaries.
"Both this
and the rest of our complaints, are not with design to amuse
the people, but
are just and reasonable; and we believe, will by the
people be thought
to be grievances 'till they are redressed; who can no
more think it
reasonable, that all the inhabitants of the eastern division
should come to
the office at Burlington, than that all of the western
division should
go to Amboy.
"We are
still of opinion, the grant we complain of is against the statute
we mentioned,
because it is exclusive of others, and to the prejudice of
the publick. It
can never be thought reasonable to prohibit any body to
cart their own
goods, or any body's else, as by virtue of that grant has
been done; and
not only in the road from Amboy to Burlington, but in the
road from
Shrewsbury; and a patent may as well be granted to keep horses
to hire, by which
a man may be hindred to ride his own: It is destructive
to the common
rights of men, and a great grievance, and we had reason to
endeavour to get
it redressed.
"It's true,
a certain convenience for transportation of goods, is no
doubt of great
use, and the profit that accrues by such undertakings, is
the motive that
induces any persons to be at the charge of them, and
providing fit
carriages for that end, and of ascertaining the times and
prices of
carrying; and the more providers of such carriages, the more
certain and cheap
the transportation, and freest from imposition; and
consequently the
fewer carriages, the less certain and dearer, and the
persons under a
necessity of using them more subject to be imposed upon by
the carrier; now
whether granting by which others are excluded, waving the
unlawfulness of
it, be a means to increase the number of the undertakers
in that kind, or
to lessen them, and confine those who have any occasion
to transport
goods, to give such price as he that has the patent thinks
fit to impose, we
leave to all men of common sense to judge; and if
experience may be
admitted to determine that matter, it is plain that
transportation of
goods, both be land and water, is dearer than it was
before the
granting of that patent: It's true, the certainty was not so
great as now; for
now we are certain that a man cannot with his own carts
carry his own
goods, but that if he does they will be seized; and if that
be one of the
conveniences which the wise people in Europe think of
absolute
necessity, we shall think it no irony to be called wiser, in
differing from
them, and calling them monopolies as they are, and
prejudicial to
trade, and especially that between York and Amboy,
Burlington and
Philadelphia; which did not owe its beginning to your
excellency's
patent, but was begun long before your excellency had any
thing to do with
New-Jersey, and in all probability had much more
increased were it
not for that patent; and we believe whenever the
gentlemen of the
law will give your excellency their true opinion of it,
you will not be
long in doubt whether tis a monopoly or not: We thought it
a monopoly, as we
do still, and a grievance, as is also both that and
other grants made
by your excellency at fort Ann in New-York, for any
thing in Jersey.
"Your excellency
has neither by birth nor acquisition, a right to the
sovereignty of
New-Jersey; nor have you any power of governing the queen's
subjects here,
but what her majesty is pleased to grant you by her letters
patents, under
the great of England; by which letters patents the powers
therein
contained, are limited to that country, which was formerly granted
by king Charles
the second, under the name of Nova-Caesaria or New-Jersey,
and which has
since been subdivided by the proprietors, and called East
New-Jersey, and
West New-Jersey, and which her majesty is pleased to
reunite under one
entire government, viz. "The divisions of East and West
New-Jersey, in
America; and in ease of your excellency's death, or absence
from that
country, which was subdivided by the proprietors, and called
East New-Jersey
and West New-Jersey, the powers of government are lodged
in other
hands." Now either fort Ann and the city of New-York, is in that
country granted
by king Charles the second, and sub-divided by the
proprietors thereof,
and called East New-Jersey and West New-Jersey; or
your excellency
is absent from New-Jersey, when you are at fort Ann in New-
York; that fort
Ann is in New-Jersey, we believe, that even your
excellency will
think impracticable to persuade us to do so much violence
to our reason as
to believe; therefore your excellency when at fort Ann,
or any where in
New-York, is absent from New-Jersey; and what the
consequence is we
need not say, thinking the pretence of a power to do
acts of
government relating to New-Jersey, at fort Ann, in New-York, to be
so manifestly
absurd, as to need nothing further to be said against it.
"There is
nothing more common in the statutes than the establishing fees,
and we are of
opinion that all fees have been established by act of
parliament; and
indeed it seems to us unreasonable they should be
established by
any other authority; for if a governor, either with or
without his
council, can appoint what sums of money shall be paid for
fees, he may make
them large enough to defray the charge of government,
without the
formality of an act of assembly, to raise a revenue for the
necessary support
of the same; and if it does not come up to the taxing of
the queen's
subjects, without their consents in assembly, we are to seek
what does.
"We cannot
think the clause of your excellency's instructions, which we
have recited, to
be so foreign to the matter of fees, as your excellency
says it is, for
the enforcing the payment of fees by any authority but
that of the
assembly's, is taking away a man's goods otherwise than by
established or
known laws, except the act of a governor and council be a
law, which we
think is not, nor never intended by the queen it should; nor
do we think, by
the instructions your excellency mentions, you are to
establish fees;
but only to regulate those already appointed, and to take
care that no
exaction was used; but if it did, your excellency has
convinced the
world, that you do not think yourself bound by the queen's
instructions, but
where the law binds also.
"As in the
ease of Ormston, where nothing could be more positive than her
majesty's
directions; yet your excellency did not think yourself
ministerial, or
by not complying with her majesty's orders, that you
accused the best
of queens, with commanding her governor to do a thing
which was not
warranted by law; nor never enquired, whether the refusing
obedience to her
commands, was a fit return for the many favours she had
bestowed upon
you; but govern'd yourself in that singular instance as near
as you could by
the law. The seventh clause was not put in to arraign the
queen's express
commands to your excellency; but to complain of the great
hardships her
majesty's subjects lay under, by your excelency's putting
the records there
mentioned, into the hands of Peter Sonmans, who is not
the proprietor's
recorder, nor had no express command from the queen to
put the books
into his hands; and may in part answer the challenge made by
your excellency
in the last part of the next foregoing clause; for your
excellency had
commanded the said records to be put into the hands of Mr.
Bass, the queen's
secretary; up which; application was made to her
majesty, who was
pleased to give an order in favour of the proprietors;
and without all
peradventure, it was intended tbey should be in the hands
of the
proprietor's recorder, which Mr. Thomas Gordon was at that time,
and regularly is
still, being constituted by the majority of the
proprietors in
the eastern division, and by your excellency sworn; Mr.
John Barclay was
also by your excellency sworn, and a proclamation issued
in his favour;
since which Mr. Peter Sonmans arrived from England, and
upon application
to your excellency, was by your excellency, admitted
receiver general
of the quit rents, and the proprietors records by your
excellency put
into his hands; which, with submission, we think could not
be done regularly
by your excellency: For in the first place, they were
constituted by
the majority of the proprietors, whose servants they were,
and to whom they
were accountable, and to none else.
"2. These
places were the properties of Mr. Thomas Gordon and Mr. John
Barclay; and to
deprive them of them, without due course of law, is what
your excellency
has no authority to do, nor can have.
"3. Whether
they were made by the greater or lesser part of the
proprietors, your
excellency was no ways concerned, nor had any right of
determining in
the favour of either one or other, the law being open to
any who thought
themselves aggrieved.
"4. Those books
and records were the properties of the general
proprietors; and
if your excellency can dispossess any proprietor of them
(for Thomas
Gordon was a proprietor) and put them into the hands of
another, you may
by the same rule dispossess any one of their goods,
and give them to
who you think fit, and any proprietor of their property,
and give it to
which of the proprietors you think fit, as is actually done
by your
excellency in the case of Sonmans; and was attempted with the
same violence in
favour of Mr. Bass: It will not be a sufficient answer to
this, to say,
Sonmans was proprietor's agent; which whether he was or
was not, your
excellency had no right to determine to any other purpose
but administering
an oath to him, after which he was of course to be
allowed; and so
ought as many agents as the proprietors made, who were
not accountable
to your excellency for any procedures in the proprietors
affairs, that
were not unlawful.
"5. Sonmans
neither had, nor pretended to have, at that time (whatever he
has done since)
any right or colour of right, to be the proprietors
recorder, not any
mention being made of it in that very lame commission he
had; and were he
to have the top of his pretences, it would but to be
deputy to a
person in England; and whether he has a right or not, is a
great question,
and regularly only determinable at the common law; but
your excellency's
shorter method of procedure saves disputes of that kind:
If this be acting
according to established and known laws, not repugnant
to, but as agreeable
as may be, to the laws of England; if this be
administering
those laws for the preservation and protection of the
people, we would
be very gladly informed, what perverting of them can be;
as to the matter
of fact, we aver it to be truth, that Mr. Sonmans did not
reside in the
province, had not given security for the keeping of those
records, as by
the queen is positively directed, they were carried out of
the Eastern
division, and were produced at the supreme court at Burlington
at the time of our
complaint.
"Those
things, and that gentleman's character, are so well known, that it
is needless to
offer any thing else in justification of that reasonable
request we made,
that they might be so kept as her majesty's subjects
might have
recourse to them, and in the hands of such of whose fidelity
there is no
reason to doubt.
"These, may
it please your excellency, were the grievances we complained
of; and they were
but a small number of many we could with equal justice
remonstrate; and
which, notwithstanding those soft, cool, and considerate
terms of false,
scandalous, and malicious, and other bitter invectives
which your
excellency so often uses to the representative body of a
country; we are
still of opinion, they are not imaginary, but real
grievances, not
false, but God knows too true and which it was our duty,
in discharge of
the trust reposed in us, to get redress'd.
Our sad
experience has convinced us, that our endeavours have not met with
a success
answerable to what might reasonably be our expectations, and
that instead of
redressing the grievances of the country, their number is
encreased: Before
we enumerated those grievances of an higher nature, and
attended with
worse consequences, we first said, the treatment the people
of New-Jersey had
received, was very different from what they had reason
to expect under
the government of a queen deservedly famous for her just,
equal and mild
administration; that the hardships they endured, were not
owing to her
majesty, who they were well assured, would by no means, make
any of her
subjects miserable, nor continue their misfortunes were she
acquainted with
them, and in her power to give them relief; but that the
oppressions they
groaned under, were the unkind effects of mistaken power;
and what these effects
were, and who the cause of them, we proceeded to
shew; and if the
instances we there give, be true, it will then appear to
the world, that
the expressions we have used, are the softest could be
chosen, and very
far short of what the nature of the thing could bear, and
that these bold
accusers are a sort of creatures called honest men, just
to the trust
reposed in them by the country, who will not suffer their
liberties and
properties to be torn from them by any man, how great
soever, if they
can hinder it.
"And that
the reasonableness of our complaints may appear the plainer, we
shall consider
what your excellency has said in answer, and leave it to
our superiors,
and to all just and impartial men, whether we are not a
people the most
abused of any of her majesty's subjects.
"As to the
first instance, your excellency does acknowledge the fact to be
true, and offers
the following reasons to justify your conduct to the
council of
proprietors: The first is, that by her majesty's directions
you are to allow
of all such agents as the general proprietors shall
appoint, such
agents qualifying themselves by taking such oaths as the
queen is pleased
to direct, and no other; that no persons under the name
of a council of
proprietors, have ever tendered themselves to take such
oaths;
consequently they are not capable of acting as agents.
"1. That the
council of proprietors are a people pretending to act by a
power derived
from certain persons who have no power to grant, and that
this a truth,
viz. that they are a people pretending to act by a power
derived from
certain persons, who had no power to grant, your excellency
is satisfied;
besides other reasous, by this in particular, that the
assembly have
voted to put the records into the hands of Peter Sonmans, to
be a grievance;
whereas their not qualifying themselves is a greater
grievance. To set
this matter in a true light, it will not be improper to
produce the words
of the instructions; which are as follows:
'You are to
permit the surveyors and other persons appointed by the
forementioned
general proprietors of the soil of that province, for
surveying and
recording the surveys of lands granted by and held of
them, to execute
accordingly their respective trusts: And you are
likewise to
permit, and if need be, to aid and assist such other agent or
agents, as shall
be appointed by the said proprietors for that end, to
collect and
receive the quit rents, which are or shall be due unto them,
from the
particular possessor of any tracts or parcel of land from time to
time; provided
always, that such surveyors, agents, or other officers
appointed by the
said general proprietors, do not only take proper oaths
for the due
execution and performance of their respective offices and
employments, and
give good and sufficient security for their so doing;
but that they
likewise take the oaths appointed by act of parliament to be
taken instead of
the oaths of allegiance and supremacy; as also the test,
and subscribe the
forementioned association; all which you are accordingly
to require of
them, and not otherwise to admit any person into any such,
office or
employment.' After the proprietors had surrendered their power
of government,
relating to their soil, they were under a necessity of
employing
persons, to survey and record the surveys of lands granted by
and held of them;
and in the Eastern division, several quit rents being
due to them,
there was a necessity of having one or more agents to collect
and receive those
rents; which persons (because the crown intended, that
the proprietors
by the surrender of their government, should by no means
be insecure in
their properties) your excellency was directed not only to
permit such
officers to be and execute their respective trusts, but also
to aid and assist
them, if need were; and because such offices were places
of trust, both
with respect to the proprietors and the inhabitants, it was
directed, that
they should take proper oaths, and give good and sufficient
security; and
that they who enjoyed those places of trust, might be
persons well
affected to the present government, there was especial care
taken, to direct,
that they should take the oaths appointed by act of
parliament to be
taken, which your excellency was to require of them, and
not otherwise to
admit them to execute those trusts: From all which we
observe, first,
that no agents are concerned in that instruction, but such
as were to survey
and record the surveys of lands, and collect the quit-
rents.
"2. That the
proprietors were not limited to employ a certain number of
agents, but might
employ as many as they thought fit; all which your
excellency was to
aid and assist if need were.
"3. Your
excellency was not to expect while they tendered themselves to
take the oaths
appointed, but to require them to take them; and upon their
refusal not to
admit them; for it was impossible they, or any else, should
deem themselves
bound by the queen's instructions to certain performances,
except such
instructions had been made publick, and they made acquainted
with it.
"Now in the
first place, your excellency never published any such
instruction, nor
ever did require those agents called the council of
proprietors to
comply with it by taking any oaths.
"2. The
council of proprietors are not such agents as the instructions
mention.
"3. Were
that instruction binding, your excellency has by no means
complyed with it;
for the surveyor appointed by the proprietors of the
western division,
has several times tendered himself to take and
subscribe according
to her majesty's directions, and has been refused.
"4. Mr.
Sonmans, tho' a bankrupt, and his powers disputed, admitted to
keep the records
of the eastern division, and that without any
security; and
persons who were sworn to those places, and employed by
proprietors, and
a greater number, not only not permitted to act, but
deprived of their
places (with which your lordship had nothing to do)
without a due
course of law, forceably by your lordship's directions.
"Lastly, the
council of proprietors are attornies to private men, for
the taking care
of their several properties, and are neither concerned in
that instruction,
nor bound by it; if they were, we shall not dispute how
far that
instruction may be a law to your lordship, but we are sure 'tis so
to no body else,
but where the laws of the land bind without it; and if so,
'tis no
sufficient warrant to destroy any man's property, or deprive him of
the use of it,
without the judgment of his peers; for your lordship cannot
but know, if you
do not, the last clause of the petition of right will tell
you, that the
queen's servants are to serve her according to law, and not
otherwise; and
every gentleman of the law can inform your excellency, if
he pleased, that
the queen's authority or warrant produced (if you had
done any such
thing) cannot justify the commission of an unlawful act;
which this
certainly must be, except the law provides that no man must
make an attorney
but with your lordship's approbation: As to the second
reason, to use
your excellency's expressions, if we could wonder at any
thing your
excellency has done, it would be at the reason your excellency
gives, as much as
at the action; it being a plain pretending to a right of
judging solely who
have a right to their estates, and who not, and
according to that
judgment to permit them to retain or force them to part
with their
possessions; for in the first place, that matter was never
brought before
your lordship, and what information you had (if you had
any) was private;
and we are told no freeman can be dispossessed of his
freehold but by
judgment of his peers, or the law of the land; but here is
at once a
determination, that a number of proprietors, nigh or above nine
tenths of the
whole, have no right to grant, and accordingly they are
prohibited taking
up or disposing of their lands; for the council of
proprietors, are
all proprietors themselves, except Mr. Morris their
president; and we
cant see, but any freeman, or number of freemen in the
province, may be
dispossessed by the same measures; for 'tis but your
lordship's
saying, the persons they had their lands from, had no right to
grant, and then
order the possessors to make no further improvements,
nor to dispose of
any of their lands; and thus conclude them without the
tedious formality
of the old magna charta way; and who is hardy enough
to dispute with a
man that commands two provinces?
"2. What
your excellency asserts, with relation to the council of
proprietors, viz.
that they were persons deriving a power from those who
had no right to
grant, is what your excellency neither did, nor could
know; that you
did not know it, nothing is more plain; because your
excellency some
days after your lordship's answer to our remonstrance,
summoned some of
the council of proprietors before yourself in council,
and there asked
them the following questions, viz. First, who the late
council of
proprietors were? Secondly, who were the present council of
proprietors?
Thirdly, who they derived their powers from? Fourthly,
what their powers
were? By which it appears, your excellency neither
knew who the
council of proprietors were, what their powers were, nor
who they derived
them from; which is very far from knowing whether
the persons who gave
them those powers, had power to grant or not; and
that your
excellency could not know, is as plain; because the deeds of
what proprietors
are in this country, you never did see; and those that are
in England, you
could not see.
"How your
excellency is, from our voting the putting the records
into Mr. Sonmans
hands to be a grievance, satisfied that the persons from
whom the council
of proprietors derive their power, have no power to
grant; is very
much beyond our poor capacities to understand, and may
perhaps be of the
number of those unanswerable objections your lordship
tells us of in
your answer. To the next clause your lordship justifies your
proceedings with
the assemblymen, as being your duty; and that what
you did, was by
virtue of the queen's instructions; how far they will
justify your
excellency's conduct is our next business to speak to; but in
the first place
we are obliged to your excellency, for acknowledging the
matter of fact;
which tho' notoriously known, was omitted to be entered
in the journals
of this house, by your excellency's faithful servant, Mr.
William Anderson,
late clerk of this house.
"By the
queen's instructions, not the least colour of authority is
given to your
excellency, to be a judge of the qualifications of
assemblymen, so
as to admit or reject them; which is not only a direct
contradiction to
the very nature and being of assemblies, but must render
the liberties,
lives and properties of the people entirely at your
excellency's
disposal; which as her majesty never intended, so without
doubt she never
did intend by any instruction to make so precarious; and
how well she'll
be pleased at wresting her instructions to authorize what
we are well
satisfied she will be very far from countenancing, time may
inform us: This house
could not be so much wanting to themselves, and
the province they
represent, as to omit taking notice of a procedure,
which tends to
destroy the very being of assemblies, by rendering them
the tools of a
governor's arbitrary pleasure, and the enemies instead of
the preservers of
the liberties of their country; and we are well assured,
that nothing your
excellency has said, will perswade the world to believe,
that your
excellency or any other governor, has that power you pretend
to, or that it
can be consistent with the liberties of a free people.
"That there
were considerable sums of money raised; that most of them were
raised with
intent and purpose to give to your lordship, to procure the
dissolution of
the last assembly, and procure such officers as the
contributors
should approve of; that in all probability the money so
raised, was given
to your lordship; that the assembly was dissolved; that
the contributors
were complied with as far as could be; that you did
receive from
doctor John Johnston, two hundred pounds, upon the score
of the
proprietors of the eastern division of New-Jersey; are such
notorious tuths,
that it is a vanity to deny them; and will be believed,
notwithstanding
all the force of evasive arts to perswade to the contrary:
And since we have
mentioned doctor Johnston, it's not amiss to enquire,
whether the
services you were to do the proprietors were such as your
lordship ought,
or ought not to have done; if they were such as you ought
to have done, you
ought not to have taken money for the doing of them;
if they were such
as you ought not to have done, much less ought your
lordship to have
taken money; and had you not been more than ordinarily
concerned in
those private contributions, without all peradventure would
have used all
possible endeavours to have detected the thing, and not
given those
publick marks of your favour to the persons most concerned in
the persuading
and procuring of them.
"As to what
relates to the assembly, as your lordship is not accountable
to this house for
what reasons you dissolved them, neither is this house
to your lordship
for their proceedings; they acted as became a house of
representatives
in the affair of Mr. Gordon, and what they did, was not
without your
lordships approbation; if that could add any thing to the
power they had:
As to your excellency's reflections on private men, 'tis
below the
representative body of a province to take any further notice of
them, than to do
that justice to the two worthy members of this house, as
to say, they both
have, and deserve better characters than your excellency
gives them; and
that the humblest application you can make to her majesty
will never induce
her to grant you a power to use any means to procure a
satisfaction but
what the laws allow of, without such application: We
concluded, by
acquainting your excellency, that the way to engage the
affections of a
people, was to let them be unmolested in the quiet
enjoyment of
those things which belong to them of right, and should have
dated our
happiness from your excellency's complying with so reasonable
and just a
desire; to which your excellency replied, that you could never
answer taking
advice from men, who did not know how to govern themselves,
and who have
always opposed the service of the queen, and interest and
good of their
country: We shall wave the admirable coolness of temper, and
considerateness
of the reflection; and say, your excellency could hardly
have used plainer
terms, to tell us, you will not let us be quiet in the
enjoyment of what
belongs to us of right; and your excellency's
proceedings since
that, has effectually convinced the world, that we have
not put a wrong
construction on your excellency's expressions.
"Are not her
majesty's loyal subjects haul'd to goals, and there
lie without being
admitted to bail? and those that are the conditions of
their
recognizances are, that if your excellency approves not of their
being bailed,
they shall return to their prisons; several of her majesty's
good subjects
forced to abscond, and leave their habitations, being
threatened with
imprisonment, and no hopes of receiving the benefit of
the law; when
your excellency's absolute will is the sole measure of it:
One minister of
the church of England, dragg'd by a sheriff from
Burlington to
Amboy, and there kept in custody, without assigning any
reason for it,
and at last hauld by force into a boat by your excellency,
and transported
like a malefactor, into another government, and there
kept in a
garrison a prisoner; and no reason assigned for these violent
procedures, but
your excellency's pleasure: Another mininister of the
church of
England, laid under a necessity of leaving the province, from
the reasonable
apprehensions of meeting with the same treatment; no
orders of men
either sacred or civil, secure in their lives, their
liberties or
estates; and where these procedures will end, God only knows.
If these, and
what we have named before, be acts of mercy, gentleness and
good-nature; if
this be doing for the good, welfare and prosperity of the
people of this province;
if this be the administering laws for the
protection and
preservation of her majesty's subjects; then have we been
the most mistaken
men in the world, and have had the falsest notion of
things; calling
that cruelty, oppression and injustice, which are their
direct opposites,
and those things slavery, imprisonment and hardships,
which are
freedom, liberty and ease; and must henceforth take France,
Denmark, the
Muscovian, Ottoman and Eastern empires, to be the best models
of a gentle and
happy government.
"Your
excellency at last endeavours to persuade the country, that the
assembly, instead
of protecting are invading the liberties of the people;
and if we might
have the liberty of using some of your excellency's cool
and considerate terms,
perhaps the following instances might justify those
expressions; but
we leave that to just and impartial men, who no doubt
will apply them
where they are most due. Your excellency asserts in the
first place, 'You
have presumed to take the queen's subjects into the
custody of the
serjeant at arms, who are not members of your house; which
you can't
lawfully do, and is a notorious violation of the liberties of
the people.'
Answer: There is nothing more known, than that the contrary
to what your
excellency says is true, and hardly a session of parliament
but affords
multitudes of instances, nay, several instances can be
produced during
the time of your excellency's being in the house of
commons; and what
your excellency means by asserting a thing, which every
body that knows
any thing, knows is not so, we can't tell.
"Secondly,
'You have taken upon you to administer an oath to one of your
members, and have
expell'd him from the house for refusing to take an oath
which you could
not legally administer to him; this is most certainly
robbing that
member of his property, and a most notorious assuming to
yourselves a
negative voice to the freeholders election of their
representatives,
for which there can be no precedent found.' Answer: We
never did
administer an oath, (tho' we think we have power so to do) what
oaths were
administered were administered by justices of the peace before
us: We expell'd
that member for several contempts for which we are not
aceountable to
your excellency, nor no body else in this province: We
might lawfully
expel him; and if we had so thought fit, might have
rendered him
incapable of ever sitting in this house; and of this many
precedents may be
produced. We are the freeholders representatives; and
how it's possible
we should assume a negative voice at the election of
ourselves, is
what wants a little explanation to make it intelligible.
"Thirdly,
'You have arbitrarily taken upon you to command the
high-sheriff of
this country, to discharge a prisoner who was in his
custody at the
suit of one of the queen's subjects; and he has been weak
enough to do it,
for which he lies liable to be sued for an escape,
whenever the
gentleman thinks fit to do it, and from which you can't
protect him; this
is a notorious violation of the right of the subject,
and a manifest
interruption of justice.' Answer: The person we ordered to
be discharged,
was an evidence attending by order of the house, and under
the protection of
this house; who were only wanting to themselves, in not
sending the
high-sheriff and lawyers to the same place, for daring to offer
so publick an
affront to the representative body of a country.
"Fourthly,
'You have taken upon you to appoint one of your members to act
as clerk of the
committee of the whole house, which you have no power to
do, &c.'
Answer: Your excellency has been so very much mistaken in all the
foregoing
clauses, that we have great reason to believe you are so in
this: This house
has always, 'till of late, made their own clerks, and
your excellency cannot
shew us any law why we may not do it still, should
we think fit to
insist on it: We have made no encroachments on her
majesty's
prerogative royal, nor never intended to do it, but shall to our
utmost, study to
preserve it, and honourably support her government over
us, and hope your
excellency will think it for the service of the queen to
comply with our
reasonable desires; which will very much encourage us so
to do.
"Divers of
the members of this assembly being of the people called
Quakers, do assent
to the matter and substance, but make some exceptions
to the stile.
"By order of
the house,
"Sam.
Jenings, speaker.
"P. M. Die
Veneris. 24
"Octobris,
1707."
1 Their message
to introduce it he received, and the next day laid it
before the
council, as follows: "The house of representatives having sent
a message to your
excellency, to know when your excellency would be waited
upon with a reply
this house has made to your excellency's answer to their
remonstrance; and
your excellency having not, as is usual in such cases,
assigned them any
time, they have appointed us to wait on your excellency
with the said
reply, and to deliver it to you."