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THE EARLY CONSTITUTIONS OF NEW
There is much question in our day of the binding force of constitutional provisions—a sense of restiveness under the control of the mere written declarations of the people of the past. Complaint is made that the courts are adhering too closely to the provisions of the constitution, and are interfering with progress toward social betterment and justice to the industrial workers. It is true in principle that the constitution is made for man, and not man for the constitution, and that old forms of words must not be made shackles to restrain the natural, healthy growth of the body politic; but true progress in the social and political order is growth, and not arbitrary and spasmodic change, and study of the history of the constitution is essential to the appreciation of the meaning and value of the principles and institutions that are expressed or embodied in it. The written constitution is not really intelligible without some knowledge of the history of these institutions. It does not attempt to define or describe what is familiar to the people by whom it is prepared, but assumes a common knowledge of existing institutions and of the traditional functions of the various officers of the government.
The constitution of New Jersey began to be made long before the English people had begun to send colonies to the new world. The institutions of the states had their growth in England, and the written constitutions adopted by the American colonies when they became independent states were only an attempt to state in general terms the character of the institutions already existing among them, and of the will of the people with respect to the changes demanded by their new condition of independence. There was more than a century of constitutional government in New Jersey before the adoption of the Constitution of 1776. The form of the government, the principles of civil and religious liberty, the names and functions of the officers, the law itself, were the traditional heritage of the people when they came to New Jersey. These were expressed in formal documents upon the settlement of the provinces of East and West New Jersey, and afterward upon the merger of the two provinces, and the surrender of the government to the Crown in 1703, and again in the Declaration of Independence in 1776. It may be interesting to examine these documents and some of the facts which led to the founding of the
colonies with a view to finding the origin of some of the provisions of our existing constitution, and of learning how deeply rooted in the institutions of New Jersey, are the principles of representative government, personal rights, and civil and religious liberty.
The most important of the documents are these: The Concession and Agreement of the Lords Proprietors, on the first settlement of the State by the English people in 1664-5; the Concessions and Agreements, or Fundamental Laws of West New Jersey; the Fundamental Constitutions of East New Jersey; the Instructions for Lord Cornbury, the first Royal Governor, sent to him by a Committee of the Privy Council of England; Lord Cornbury's Commission; the Ordinances of Lord Cornbury and later Governors; the Constitution of 1776, when the Province became an independent state.
The grant of King James I to the London and Plymouth Companies in 1606 was in the nature of a charter, and although made before the breaking out of the conflict between the people and the Crown, it gave the "adventurers" assurance of the liberties of Englishmen, and promised to them and to their children the enjoyment of all the liberties, franchises and immunities within any of the King's dominions, to all intents and purposes as if they had been abiding within the realm of England.
The settlement made by the Plymouth Company under Chief Justice Sir John Popham at the mouth of the Kennebec in 1607 was soon abandoned, and the first permanent English settlement in North America was that of the London Company three months earlier in Virginia. This was in the control of men who were strongly opposed to the King's extreme claims of the royal prerogative and they made use of the democratic constitution of their company and the freedom it allowed for debate, for the assertion of the principles of civil and religious liberty and the establishment of the groundwork of republican government in Virginia.
The settlement at Plymouth in 1620 was made by a company of refugees from religious persecution. They came without a charter, and the settlers formed a democratic government of their own by the compact of the Mayflower.
Afterwards, another company of men, some of them English merchants and country gentlemen, obtained a royal charter giving them the right to transport settlers and manage their own affairs. It was in form the charter of the Governor and Company of
Massachusetts Bay, but as Henry Cabot Lodge says, "If we omit the word 'company', we have a constitution of a state, with very ill defined powers." It was upon this charter that the government of Massachusetts was organized. There were divisions among the settlers of Massachusetts, and migrations were made to New Haven and the Connecticut Valley. The New Haven Colony consisted of self-governing communities, the organization of which was centred in the church. The Connecticut Colony, through Governor Winthrop, obtained a charter which served as the constitution of the state until long after the Revolution.
There were differences of polity in the New Haven Colony, and in fear of measures being taken for absorbing the Colony in a confederation with Connecticut, men from Milford, Guilford and Branford negotiated with the Dutch in New Amsterdam for settlements in New Jersey, and some of them came and settled south of the Raritan and near the Navesink Highlands, and others had a license from the Dutch to settle on the lands back of the Achter Kull, or Arthur Kill, and along the Raritan. The control of the actual settlements in New Jersey was then in the hands of the Dutch. They controlled the Swedish settlement on the Delaware, as well as the settlements of the Hollanders along the Hudson. They had constituted courts and appointed magistrates and the communities were under the supervision of a governor in New Amsterdam and the States General of Holland. The English had never acknowledged the rights of the Dutch to any part of the territory that was included in the grants of James I to the London and Plymouth Companies, and Charles II, following the policy of Cromwell in this respect, was eager to extend and strengthen the English domains over the seas. He did not wish, however, to allow the old chartered companies to get control of any more land than they had actually settled, and on March 12, 1664, he made a grant to his brother James, Duke of York, of all the coasts and islands from New Scotland to the Hudson River, and of the land from the west side of Connecticut River to the east side of Delaware Bay, giving him authority to make all manner of laws and forms and ceremonies of government and magistracy for the government of the same.
The grant included what is now New Jersey, as well as New York, and the Duke was willing to share his unknown domains with his friends, John, Lord Berkeley, and Sir George Carteret,
'A Short History of the English Colonies in America, p. 343.
Governor of the Island of Jersey, who had rendered distinguished services to the King.2
In the following June, the Duke executed deeds of lease and release to Berkeley and Carteret for the land adjacent to New England and west of Long Island and Manhitas Island, bounded on the east part by the Hudson River, and hath upon the west Delaware Bay, or River, extending from latitude 41.40 to Cape May. This conveyance did not expressly include the powers of government, but it was assumed that Berkeley and Carteret acquired all the rights and powers of the Duke of York. They called the province New Jersey after the island of which Carteret was governor, and for bringing about a settlement of the country they prepared a document offering to settlers an opportunity of acquiring lands on reasonable terms subject to a quit-rent of a halfpenny per acre, giving them assurance of the liberties of Englishmen and a government under laws adopted by assemblies of their own choosing. This paper was entitled "The Concessions and Agreements of the Lords Proprietors of the Province of New Caesarea, or New Jersey, to and with the adventurers, and all such as should settle or plant there." It was dated February 10, 1664, which was, by our present reckoning, in the beginning of 1665. On the same day a commission was issued to Philip Carteret as Governor of the Province, with power to nominate a council of six to twelve able men, unless all or any of them should be chosen by the Proprietors, and a letter of Instructions was given to the Governor and his Council authorizing them to convey lands and execute the laws.
The original of the Concessions and Agreements was destroyed by fire in 1686, but a contemporaneous copy on a roll of parchment, nine feet long, brought over by John Fenwick, about 1675, has been preserved in the library of the New Jersey Historical Society. This document is the first constitution of New Jersey. It prescribed the form of the organization of the government and the powers of the executive and of the legislature, and provided guarantees of civil and religious liberty. Under this agreement, the government was actually organized, but the operation of it was
"The Grants and Concessions and Original_Constitutions of the Province of New Jersey. Leaming and Spicer, Philadelphia, W. Brad
modified because of the fact that the settlers came from communities already organized in New England, who were inclined to resist the authority of the Proprietors, and to maintain their own right to the land and to govern themselves according to their own traditions.
Meantime, in April, 1664, and before the grant to Berkeley and Carteret, the Duke of York appointed Col. Richard Nicholls Governor of his new domains, and sent him out with a fleet of three ships to take possession of New Amsterdam and assert the control of the English Crown over the Dutch settlers in America. Col. Nicholls arrived on August 28, 1664, and the Dutch settlements on the Hudson were surrendered to him on September third, and those on the Delaware to Sir Robert Carr in October following."
Col. Nicholls on September 30th, accepted a petition from Connecticut or New Haven settlers in Jamaica, Long Island, to complete the purchase of land for which they had already negotiated, and on December 30 he made them a grant of lands west of Staten Island, and extending from Snake Hill and the Passaic River to the Raritan and the Orange Mountain.o
There had already been made a settlement of New England men on the Achter Kull, and there were others at Shrewsbury and Middletown, and these settlers received grants from Col. Nicholls, one of which was the Monmouth Patent, by reason of which Monmouth County refused for a long time to acknowledge the authority of the Proprietors and Governor Carteret."
The Governor arrived with his commission from Berkeley and Carteret in August of the following year, 1665, and assumed control of the Dutch settlement at Bergen, established courts and appointed magistrates. He settled at a place to which in honor of Lady Elizabeth Carteret he gave the name of Elizabethtown, and there he found a little company which had already acquired land under the authority of Col. Nicholls, and negotiations and arrangements were made with them by which he was recognized as Governor, although the question of the title of the Proprietors to the lands remained in dispute, and gave cause for serious conflict and litigation which lasted nearly a century.
'Printed in I N. J. Archives, pp. 28-43.