Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
§ 115. New Jersey, as we have already seen, was a part of the territory granted to the Duke of York, and was by him granted, in June, 1664, to Lord Berkeley and Sir George Carteret, with all the rights, royalties, and powers of government, which he himself possessed.1 The proprietors, for the better settlement of the territory, agreed in February, 1664-1665 upon a constitution or concession of government, which was so much relished, that the eastern part of the province soon contained a considerable population. By this constitution it was provided, that the executive government should be administered by a governor and council, who should have the appointment of officers; and that there should be a legislative or general assembly, to be composed of the governor and council, and deputies, chosen by the people. The general assembly were to have power to make all laws for the government of the province, so that “the same be consonant to reason, and as near as may be conveniently agreeable to the laws and customs of his majesty’s realm of England;” to constitute courts; to levy taxes; to erect manors, and ports, and incorporations.2 The registry of title deeds of land and the granting thereof, as a bounty to planters, were also provided for. Liberty of conscience was allowed, and a freedom from molestation guaranteed on account of any difference in opinion or practice in matters of religious concernments, so always that the civil peace was not disturbed. But the general assembly were to be at liberty to appoint ministers and establish their maintenance, giving liberty to others to maintain what ministers they pleased. Every inhabitant was bound to swear or subscribe allegiance to the king; and the general assembly might grant naturalization.3
§ 116. This constitution continued until the province was divided, in 1676, between the proprietors. By that division East New Jersey was assigned to Carteret; and West New Jersey to William Penn and others, who had purchased of Lord Berkeley.4 Carteret then explained and confirmed the former concessions for the territory thus exclusively belonging to himself. The proprietors also of West Jersey drew up another set of concessions for the settlers within that territory. They contain very ample privileges to the people. It was declare, that the common law, or fundamental rights and privileges of West New Jersey, therein stated, are to be the foundation of government, not alterable by the legislature. Among these fundamentals were the following, “that no man, nor number of men upon earth, hath power or authority to rule over men’s consciences in religious matters;”5 that no person shall be any ways called in question, or in the least punished, or either, for the sake of his opinion, judgment, faith, or worship towards God in matters of religion; that there shall be a trial by jury in civil and criminal cases; that there shall be a general assembly of representatives of the people, who shall have power to provide for the proper administration of the government; and to make laws, so “that the same be, as near as may be conveniently, agreeable to the primitive, ancient, and fundamental laws of England.”6
§ 117. Whether these concessions became the general law of the province seems involved in some obscurity. There were many difficulties and contests for jurisdiction between the governors of the Duke of York and the proprietors of the Jerscys; and these were not settled, until after the Duke, in 1680,7 finally surrendered all right to both by letters patent granted to the respective proprietors.8 In 1681, the governor of the proprietors of West Jersey, with the consent of the general assembly, made a frame of government embracing some of the fundamentals in the former concessions.9 There was to be a governor and council, and a general assembly of representatives of the people. The general assembly had the power to make laws, to levy taxes, and to appoint officers. Liberty of conscience was allowed, and no persons rendered incapable of office in respect of their faith and worship. West Jersey continued to be governed in this manner until the surrender of the proprietary government, in 1702.10
§ 118. Carteret died in 1679, and being sole proprietor of East Jersey, by his will he ordered it to be sold for payment of his debts; and it was accordingly sold to William Penn and eleven others, who were called the Twelve Proprietors. They afterwards took twelve more into the proprietary ship; and to the twenty-four thus formed, the Duke of York, in March, 1682, made his third and last grant of East Jersey.11 Very serious dissensions soon arose between the two provinces themselves, as well as between them and New York; which banished moderation from their councils, and threatened the most serious calamities. A quo warranto was ordered by the crown in 1686, to be issued against both provinces. East Jersey immediately offered to be annexed to West Jersey, and to submit to a governor appointed by the crown. Soon afterwards the crown ordered the Jerseys to be annexed to New England; and the proprietors of East Jersey made a formal surrender of its patent, praying only for a new grant, securing their right of soil. Before this request could be granted, the revolution of 1688 took place, and they passed under the allegiance of a new sovereign.12
§ 119. From this period both of the provinces were in a great state of confusion, and distraction; and remained so, until the proprietors of both made a formal surrender of all their powers of government, but not of their lands, to Queen Anne, in April, 1702. The Queen immediately reunited both provinces into one province; and by commission appointed a governor over them. He was thereby authorized to govern with the assistance of a council, and to call general assemblies of representatives of the people to be chosen by the freeholders, who were required to take the oath of allegiance and supremacy, and the test provided by the acts of Parliament. The general assembly, with the consent of the governor and council, were authorized to make laws and ordinances for the welfare of the people “not repugnant, but, as near as may be, agreeable unto the laws and statutes of this our kingdom of England;” which laws were, however, to be subject to the approbation or dissent of the crown.13 The governor with the consent of the council was to erect courts of justice; to appoint judges and other officers; to collate to churches and benefices; and to command the military force. Liberty of conscience was allowed to all persons but Papists.
§ 120. From this time to the American Revolution the province was governed without any charter under royal commissions, substantially in the manner pointed out in the first. The people always strenuously contended for the rights and privileges guaranteed to them by the former concessions; and many struggles occurred from time to time between their representatives, and the royal governors on this subject.14
1. 1 Chalm. Ann. 613; Smith’s New York, p. 31 [11.]; Smith’s N. Jersey, 60; Marsh. Colon.177 to 180; 2 Doug.Summ.220, etc. 231, 267, etc.
2. Smith’s New Jersey, 6, Appx. 512; 1 Chalm. Annals, 614.
3. Smith’s New Jersey, 512, 514.
4. Smith’s New Jersey, 61,79,80,87; 1 Chalm. Ann. 617.
5. Smith’s New Jersey, 80, App. 521, etc.
6. Smith’s New Jersey, 80, App. 521, etc.
7. Chalmers says, in 1680. p. 619.–Smith says in 1678, p. 111.
8. Smith’s New Jersey, 110,111; 1 Chalm. Ann. 619, 626.
9. Smith’s New Jersey, 126.
10. Smith’s New Jersey, 154.
11. Smith’s New Jersey, 157; 1 Chalmers’s Annals, 620, 621, Marshall’s Colon. 180.
12. 1 Chalm. Ann. 621, 622; Smith’s New Jersey, 209, 210, 211, etc.
13. Smith’s New Jersey, 220 to 230, 231 to 261.
14. Smith’s New Jersey, ch.14, and particularly p. 265, etc. p. 269, etc. 275, 292, 304.