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England, threw in his fortunes with the royalists and was made a baronet in 1645, after which he again went to Jersey and held it under the king. On the failure of the royal cause, he gave an asylum on the island to the Prince of Wales and other refugees. He made such a determined resistance to the Parliamentarians that Charles II was induced to command him to surrender, in order to save the gallant defenders from death, thus emulating the example of his ancestor, who, in 1374, defended the same island against the French. Elizabeth Castle, in Jersey, under the command of Sir George, was the last of the loyal fortresses of England to surrender. When Charles II was restored to the throne of his ancestors, Sir George joined his train, on the occasion of his triumphal entry into London, and the very next day became one of the Privy Council. He was also made vice-chamberlain, but in 1669 was expelled from the House of Commons, for real or alleged misconduct in that office. The charge against him was embezzlement of the public money, but there seemed to be some doubt of his guilt, as there was considerable difficulty in determining the vote on his trial, and when it was finally decided it was ascertained, but only after repeated counts, that the majority against him was only nine out of a vote of two hundred and sixty-seven. As it was, if the first count of tellers had been taken, he would have been acquitted. There must have been grave doubts as to his guilt, as he was soon afterwards returned to Parliament by the corporation of Portsmouth.

Lord John Berkeley, like Sir George Carteret, was an intense loyalist and followed the cause of Charles through all its vicissitudes. He commanded the royal army in its campaign against the Scots in 1638, and was knighted for his services at Berwick, in that year. He was foremost among those who served the king, went into exile at the death of Charles I and remained with the royal family until the restoration. In 1652 he was placed at the head of the household of the Duke of York, and in 1658 was raised to the peerage as Baron Berkeley of Stratton, in the County of Somerset, the spot where he had gained a victory for the royal cause. When Charles II was restored, he made the baron one of his Privy Council, and later, he was elevated to the office of Lord Lieutenant of Ireland. In 1675 he was appointed ambassador at the Court of Versailles. His life was a busy one in the service of the Stuart family. He died August 28, 1678. Lork Berkeley and Sir George Carteret, in the deeds, grants and proclamations made by them, sometimes assumed the title of "the true and absolute Lords Proprietors of

New Ceasarea, or New Jersey," sometimes, simply of the "Lords Proprietors of New Jersey By that latter name, they and their assignees have been known in New Jersey until the present time. The organization which finally succeeded to the rights of the original grantees of the Duke of York, in New Jersey, is still in existence and has its office at Perth Amboy, where its records and papers have been preserved for many years. It still claims title to some land in New Jersey. An attempt was made about a half a century ago to claim the land lying on the banks of the Passaic River, between high and low water mark, which gave rise to a cause célèbre in the courts of New Jersey, and created a great excitement at the time, but the courts decided against the claim, and nothing has since been heard of any demand of a like

nature.

There can be no doubt of the right of an English king to make grants to any person or persons whom he may select, of "crown lands," such as are found in a newly discovered country, in which the sovereign has a fee simple obtained by discovery, or by possession, or in any manner. in which such fee may be gained. But a serious question arose soon after these grants were made to the Duke of York and by him to Lord Berkeley and Sir George Carteret, whether the monarch could lawfully transfer the right of government over the inhabitants of the land so conveyed. The right to reign was an inherited one and was personal-attached to the person of the ruler, and could not be transferred. The subject had a right to demand that he should be ruled by his lineally descended king, and not by a stranger. If the king could assign dominion, the right of government, to a stranger and his assigns, the assignee could, in turn, assign to another stranger. Nay, more, the stranger assignee could split up the granted country into as many lesser dominions as he chose, grant these lesser dominions to other strangers with right of governing, and the spectacle would be presented of a country divided into infinitesimal sovereignties, each governed by its own ruler, with different codes of law and variant modes of administration. Another question was necessarily involved in the discussion: Government might not only be made the subject of bargain and sale, transferred for pounds, shillings and pence, but so might the allegiance of the citizens living in the transferred country.

Besides the difference between the form of the deed from the king to the Duke of York and that made by the duke to Berkeley and Carteret, there was another very marked distinction and one of

very great importance. There could be no mistake in the construction of the Letters Patent to the duke from the king, of the conveyance of governmental power; it was clear and undoubted, absolute and unconditional, and was indefeasible. But the release from the duke to Berkeley and Carteret only conveys the right to rule by implication. The clauses which make this implication are these: "And also all Rivers, Mines, Mineralls, Woods, Fishings, Hawking, Hunting and Fowling, and all other Royalties, Proffits, Commodities, and Hereditaments whatsoever, to the said Lands and Premises belonging or in any wise appertaining; with their and every of their appurtenances, in as full and ample a manner as the same is granted to the said Duke of York by the before recited Letters Patents; and all the Estate, Right, Title, Interest, Benefit, Advantage, Claim and Demand of the said James Duke of York, of in or to the said and Premises, or any

Part or Parcel thereof, and the Reversion and Reversions, Remainder and Remainders thereof.”

But little notice of this distinction was taken at the time; the inhabitants were few, and they were forced by absolute necessity to devote all their energies and their whole time and attention to the procuring of a mere subsistence. But, as the number of inhabitants increased and their prosperity placed them beyond want, they began to question the right of the Lords Proprietors to rule over them, and this gave rise, as will be seen hereafter, to sharp conflicts.

There were three methods adopted by the English government in dealing with lands in the newly discovered continent of America: By one of these the sovereign merely delegated the right to rule to officers appointed by him, to hold during his pleasure, or for a term of years, or for life. These officers were representatives of the monarch, were responsible to him and their authority was limited by the instructions received from him. This delegated authority simply gave the power to rule in the name of the king, was disconnected from any grant of land and was called a royal government."

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By another method, the government in the colony was established through what was called charters; by which certain powers of ruling were granted to the people, limited, however, by the terms of the charter, or by the will of the monarch. No rights to property accompanied this form of government. In the other case, power was given in connection with the land, which was conveyed in fee to the grantee of the power to rule; this was called a proprietary government. That of the

Duke of York was essentially, in every particular, a proprietary government. The proprietary form was not new in the history of English colonies, but, in no instance was the grant so full, so ample, so far reaching as in the case of the one made to York. It is useless conjecture to strive to fathom the motives which induced Charles to make so unlimited a disposition of land and authority to his brother.

Whatever doubts may, at any time, have been entertained of the proper construction of the deed by York to Berkeley and Carteret, their conduct gave full evidence of what they thought the deed meant. They immediately became rulers as well as proprietors of the soil. On the 10th day of February, 1664-65, they commissioned Philip Carteret, a brother of Sir George, as governor of New Jersey. In the commission, their first official act, so far as can be ascertained, they call themselves the "true and absolute Lords Proprietors of all the province of New Ceasarea or New Jersey."

CHAPTER III.

Grants and Concessions of the Lords Proprietors; Lord Baltimore and Maryland; Roger Williams and Rhode Island; Copy of Grants and Concessions; Elizabeth Town; Grants by Governor Nicolls of Land in New Jersey; Condition of Legislative and Judicial Affairs in New Jersey; Settlement of Newark; Characteristics of its First Settlers; Fundamental Agreements; Copy.

On the 10th day of February, 1664-65, the same day on which Philip Carteret was appointed governor of New Jersey, Lord Berkeley and Sir George Carteret issued their celebrated "Grants and Concessions," in which they described themselves as "The Lords Proprietors of the province of New Ceasarea or New Jersey." Great credit has been awarded them for this remarkable document and, perhaps, somewhat deservedly. But, it must be remembered that there were some circumstances, existing at the time, which impelled them to issue it. country granted to them was virtually uninhabited by Europeans, and was valueless to them unless it were peopled. To induce immigration, motives of the strongest kind must be presented. The country was new and, in a measure, unknown; the aborigines were still there, and

dangers attended the journey thither from the mother country. England was in a ferment; the old dynasty had been restored in the person of Charles II, but he was mistrusted by many of his subjects. The old spirit of Puritanism was by no means dead; many thousands still ardently clung to its principles; thousands of Roundheads, who hated Rome, who feared its re-establishment in the country, who had no faith in Charles, who were disgusted by his follies and the open, shameless orgies of his court, whose hopes for the reign of a pure religion were centered in the establishment of a church freed from all taint of Romanism—still lived, and were longing for an asylum where they might find religious tolerance. The colonists in New England found there a sterile soil which returned them but little reward for their continued and laborious efforts and they desired a change, so that they might find a land where they could secure some return for their labor. Many of these colonists, like their brethren in old England, were dissatisfied with the condition of affairs even in New England, and longed for a land and a government where perfect tolerance existed. Strange to say, some of these same colonists desired to locate where they could isolate themselves in a community in which perfect intolerance should be the

These conditions were known to the Lords Proprietors and they took advantage of them to induce immigration to the new province. There men of all views and of all religions might come and be assured that they would not be interfered with because of their religious beliefs; that all reasonable demands would be met, the proper wishes of all respected and the requisite conditions of life would be supplied. So, for once, in that dark day of the world's history when intolerance was still the rule and not the exception, mammon surrendered and tolerance triumphed. But, in one respect, too much credit has been given. to the authors of this document, remarkable as it was at that time for its liberality. Berkeley and Carteret were not the first to found governments in the new world upon principles which included tolerance and the individual rights of the citizen. Lord Baltimore, a Roman Catholic, founded Maryland, and based its government upon the broadest tolerance, and in 1649, by an act of the Legislature of that province, it was declared as fundamental law that "no person or persons whatsoever, professing to believe in Jesus Christ shall from henceforth be in any way troubled, molested, or discountenanced for and in respect of his or her religion, nor in the free exercise thereof, nor in

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