Conceived in Liberty (70 page)

By the end of 1683 Governor Rudyard had incurred the displeasure of the proprietors, largely because Rudyard and the Council, eager to attract settlers to East New Jersey, failed to adhere to the clause in the Concessions reserving one-seventh of the lands to the proprietors. Samuel Groom, one of the Quaker proprietors, had been sent out with Rudyard to serve under him as surveyor general of the colony. Groom now insisted on the land reservation and was quickly dismissed by Rudyard. Rudyard’s firing of Groom led to his own dismissal and replacement, toward the end of 1683, by the Quaker Gawen Larie, lately become one of the proprietors.

By the end of 1684, enough of the proprietors, particularly the Scots, had immigrated to East New Jersey that the governing proprietors’ interest in the colony, especially in land matters, was transferred to the fourteen
resident
proprietors, forming the Board of Proprietors of East New Jersey. The board was empowered to deal with all matters concerning proprietary land, land claims, collecting quitrents, boundaries, etc. The resident proprietors ratified the laws of the Rudyard Assembly, but added what the Assembly had refused to pass: exemption of the pacifist Quakers from military service.

The biggest problem of the Larie administration was an attempt to collect feudal quitrents from the settlers in behalf of the proprietors. Larie was originally instructed by the impatient proprietors to collect the quitrents. In late 1684 the proprietors instructed Larie and the resident proprietors to make an end of all controversies over land titles and quitrents. Specifically, they arrogantly declared their absolute refusal to recognize any of the old Nicolls patents or to commute any of their quitrents, even including the arrears. Wrangling between the Larie administration and the various towns lasted a year and a half, so that no further Assembly was convened until the spring of 1686.

In 1684 all East New Jersey towns except Bergen were still claiming exemption from all quitrents on the ground that their old Nicolls land patents, or Indian purchases, were superior to the proprietary claim. Moreover, many settlers avoided payment of quitrents by not officially patenting their lands. The old Navesink towns of Middletown and Shrewsbury also claimed the full right to make their own laws and elect their officers under the Nicolls patents and the Nicolls-promulgated Duke’s Laws (but now forgotten by the East New Jersey governors). Over against this permanent state
of quasirebellion, Larie was supposed to persuade the six towns of the colony that the Nicolls patents—or Indian lands or governmental patents—were invalid, and that all landowners must pay the quitrents due since their inception in 1670.

The new proprietary program of strict enforcement of quitrents was bound to create fierce opposition in the colony. The first crackdown was imposed in late 1684 on John Berry of Bergen, who was a revered old settler, an agent of William Penn in East Jersey, a councillor, and a former deputy governor. Berry was opposed to enforcing quitrents and had never paid any due on his own extensive lands. He countered by dramatically challenging the validity of the Court of Common Right—the new supreme court of the colony, founded during the Rudyard regime. The court fined Berry for contempt, and Berry’s refusal to pay finally caused his imprisonment in early 1685. By now Berry had become the leader of the colony’s resistance to quitrents, and the outcome of the Berry case would greatly influence the path of opposition. The Board of Proprietors, in one of its first acts, backed up Larie, determined on no abatement of quitrents, and took up the prosecution of Berry. Berry finally yielded, however, when the board commuted his back quitrents of over 116 pounds to 70 pounds.

During this time, negotiations began with the Navesink towns of Middletown and Shrewsbury. The men of these towns, headed by the Quaker Richard Hartshorne, steadfastly refused to pay quitrents and Larie and the Board of Proprietors began to seize the property of the resisters. This forced the Navesink towns to yield by mid-1685. No agreement, however, was concluded with Piscataway, Newark, or Elizabethtown, although some individual owners in the last town took out their patents to land titles, thus following the lead of Navesink. On the other hand, Woodbridge surrendered to the proprietary in the spring, following the lead of former provincial treasurer Samuel Moore, who capitulated after having vowed to pay no quitrents whatever.

Larie and the Council finally, in April 1686, called the Assembly into session to demand an increase in taxes, largely for the expenses of the secretary and the Council. The deputies incisively replied that they saw no reason why the people should be forced to pay for the expenses of officers whom they had no power to select.

In the fall of 1686 Governor Larie was removed, the proprietors being disgruntled with what they believed to be Larie’s (as well as Rudyard’s before him) lack of zeal in reserving land to the proprietors. Larie had also shown a lack of interest in obtaining a high price in the sale of land to the settlers. The proprietors censured Larie’s granting himself a large tract of unused land at a cheap price, and his failure to push for approval of the Fundamental Constitutions.

Larie was succeeded as governor by the Scot Neil Campbell. In the fall meeting of the Assembly, Lord Campbell tried once again to insist that it
increase taxes. Speaker Richard Hartshorne defiantly spoke for the deputies when he bluntly declared that the people “were not willing to maintain a government against themselves.” Hence no revenue act was passed. At the end of the year, Campbell returned to Scotland. He nominated the Scottish merchant and proprietor Andrew Hamilton as deputy governor.

The failure of New York’s attempt to assume power over East Jersey created a gaping hole in New York’s attempted port monopoly. Smuggling was also rampant in East Jersey, and New Yorkers kept agitating for forcible annexation of that colony; the merchants desired to secure their monopoly, and the New York farmers and rural elements were envious of Jersey’s freedom of trade. These grievances culminated in 1678, when a royal order made Perth Amboy, the newly built capital of East Jersey, an approved port of entry, an act which accelerated the migration of merchants and other citizens from New York to New Jersey.

Despite the Quaker control of East New Jersey from 1682 on, and the eager plans of Robert Barclay, that colony was never in any sense a Quaker settlement. The preponderance of Scots that immigrated there in the 1680s were Presbyterians fleeing from persecution, rather than Quakers. The same was not true, however, of West New Jersey.

West New Jersey was far more sparsely populated in the 1670s than its sister colony. There were no previously existing Puritan settlements as in East New Jersey. We have seen that John Fenwick, a part proprietor of West New Jersey, founded the settlement of Salem and began to act as the virtual dictator and feudal owner of the colony. Fenwick was arrested in late 1676 for usurping the government of the colony and was convicted and fined in New York. At this time the joint proprietors of West New Jersey—all Quakers—were Edward Byllinge, William Penn, Gawen Larie, and Nicholas Lucas, and Fenwick’s small share was transferred to two of his creditors.

In March 1677 the proprietors issued the Concessions and Agreements, a document written largely by Edward Byllinge, who was assisted by William Penn. It was signed by all the proprietors and freeholders of the colony. The Concessions and Agreements established a frame of government for West New Jersey. This was a highly liberal document—especially for a proprietary decree—that guaranteed no taxation save by consent of the people (“we put the power in the people”), a representative assembly, trial by jury, full religious liberty (“no person to be called into question or molested for conscience under any pretext whatever”), and no imprisonment for debt. Penn, in 1675, had urged the liberal program of civil freedom, liberty of conscience, and trial by jury, but the veteran libertarian here was Edward Byllinge. In 1659 Byllinge,
in
A Mite of Affection,
had called for, among other liberal demands, freedom for all Christians, no coercion in religious matters, no imprisonment for debt or execution for theft. Byllinge’s views were in turn deeply influenced by the libertarian Leveller movement, which had earlier been prominent during England’s civil war.
*

Another remarkable feature of the Concessions and Agreements was that, in keeping with the Levellers’—and Byllinge’s—hostility to feudalism, it reserved virtually no governmental powers to the proprietors. This was a refreshing contrast to the usual practice of grabbing as much power as was feasible.

The West New Jersey Assembly was to be elected by all freeholders, by the unusual institution of secret ballot, and was to be empowered to create courts and levy taxes. All legislation required a two-thirds vote of the Assembly, thus assuring a greater consensus for legislation than under mere majority rule. Furthermore, the colony was to be fully self-governing, with all executive power in the hands of ten commissioners appointed by the Assembly. Judges and constables were to be elected by popular vote rather than appointed. There were other unusually libertarian features of this constitution. Except for treason, felony, and murder, the plaintiff had full power to forgive, pardon, or remit punishment, thus placing the decision to prosecute and punish for a crime in the hands of the original victim rather than the remotely concerned government. Punishment for theft did not consist in paying a supposed debt to a mythical “society” by languishing unproductively in prison at taxpayers’ expense; instead, it consisted in making restitution to the
victim
for the crime, and in working off this “debt” to the specific injured party. Furthermore, the beginnings of excellent long-standing white-Indian relations in the colony were assured by the provision that any Indian claim of injury would go to a jury of six whites and six Indians.

In keeping with the old Leveller opposition to feudalism, there was no provision for reserving land to proprietors; the shares of the proprietary were widened to a hundred, and the lands offered for sale. A headright system for wide distribution of land was instituted to induce settlement, with seventy acres granted to the first settler, plus an extra fifty to seventy acres for each servant brought over. Later settlers were to receive forty acres and twenty to thirty for each servant. Fortunately, there were few indentured servants in the colony, and therefore the land distribution was closer than usual to libertarian “homestead” allocation of new lands to first settlers. The unit farm was generally of medium size. The lands divided among the proprietors, however, were sold to speculators and therefore remained in large units until sold by them to the actual settlers. This transfer of land to the settlers was fortunately rapid, however, as the proprietors and speculators, eager for quick returns, subdivided the land into small
one-hundred-to-two-hundred-acre plots to ensure rapid sale. Another concession to feudalism and land monopoly was the requirement of a quitrent, ranging from a halfpenny to one penny per acre.

The proprietors quickly organized a Quaker settlement in 1677 at Burlington in West New Jersey. However, self-government under the Concessions and Agreements was not to be established readily. Governor Andros of New York, who had arrested Fenwick for assuming governmental powers in West New Jersey, now asserted his right to govern the territory from his New Castle bailiwick, and to subject it to New Castle constables and courts. Furthermore, Andros insisted that all ships trading with West New Jersey had to pay the New York customs levy at New Castle. West New Jersey’s protests against this levy were to no avail. Andros did benefit the West New Jersey citizens, however, by remitting quitrents for three years to encourage settlement.

But even as Governor Andros was imposing his rule over West New Jersey, John Fenwick, in 1678, began to make trouble again. For his own purposes he protested Andros’ rule and grandiosely threatened to dispossess any West New Jerseyan paying a tax to New Castle and Andros. By 1683 the rather remote Fenwick threat to the colony was ended, as his proprietary shares were deeded to William Penn.

As noted, in late 1680 the Duke of York, beset by political troubles at home, ended the Andros threat to the Jerseys by recalling the New York governor and positively reaffirming the proprietary rule of the East and West Jerseys. For West Jersey this confirmation, of course, included the right to trade without paying the hated customs duties to New Castle. The duke also was influenced in his decision by the desire at this time to placate powerful friends like William Penn.

Despite Andros’ rule, the West Jersey Quakers had already been able to rule themselves in remarkably libertarian ways. For example, the settlers found that they had little need for courts. The Quakers settled their disputes out of court, voluntarily through informal mediators. This simple, direct, peaceful, rapid, highly efficient, and purely voluntary method of settling disputes was embodied in the phrase “Jersey justice,” which stemmed from Thomas Olive’s practice of mediating disputes while plowing in the fields. Thus, in the entire year of 1680, there were only two or three court actions in the whole colony.

The people of West New Jersey were not, however, destined to enjoy the rights and liberties of the Concessions and Agreements unmolested or undiluted. For in confirming the proprietary rule of West New Jersey, the Duke of York took it in his head to grant the sole right of government in the colony to Edward Byllinge, who thus became by far the most important proprietor.

Alas! The behavior of Edward Byllinge is yet another illustration of the heady wine of power corrupting the principles of liberty. For no sooner did Byllinge obtain the sole right to govern than he brazenly proclaimed himself
governor of West New Jersey, thus repudiating the essence of his own libertarian Concessions. Byllinge appointed Samuel Jennings as deputy governor; Jennings would be his resident agent.

Thus, when the democratic General Assembly of West New Jersey first met in late 1681, a cloud hung over it; the promise of self-government was now much diluted by a proprietary governor. Elected Speaker of the Assembly was the highly popular Thomas Olive. Girded for action, the Assembly induced Jennings to agree to ten fundamental propositions, which in essence reconfirmed the rights and liberties of the beloved Concessions and Agreements. The propositions included these guarantees: yearly assemblies; no laws instituted by the deputy governor alone; no dissolution of the assembly by the governor; the sole right of the Assembly to raise taxes and armies and to declare war; election of
all
public officers by the Asembly for one year, rather than appointment by the governor; all taxes to last for only one year; and religious freedom for all. Even those principles of criminal law emphasizing restitution to the victim of theft were reinstituted. And indicative of the liberalism of Jennings and Byllinge, Jennings agreed to these provisions without consulting the governor.