54. The Development of West 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.

With Jennings and the Assembly working harmoniously, no feudal manors were erected in West New Jersey. A 500-acre maximum of land grants discouraged the arbitrary accumulation of large estates, and the competition for settlers led the government to make the quitrents negligible. The consequence of West New Jersey land policy then was an approach toward the libertarian homesteading principle, with land being sold at the reltively cheap rate of five to ten pounds per hundred acres.

A struggle now ensued between the angered Edward Byllinge, who refused to recognize the agreement, and the people of West New Jersey, led now by Samuel Jennings, who was in thorough accord with the liberties granted in the original Concessions. Finally, in 1683, on hearing rumors that Byllinge was coming to Jersey to take the reigns of command personally, West New Jersey revolted; the Assembly elected Jennings as governor and elected a Council to help him. The colony was now totally self-governing. The Assembly then reproclaimed the original Concessions as the colony’s fundamental law, with this addition: it provided for amendments to the Concessions by a six-sevenths vote of the Assembly. No amendment was to be permitted to weaken liberty of conscience, procedural protections such as the laws of evidence in trials, or guarantees of trial by jury.

Byllinge’s reaction was to have his sole right to govern immediately reconfirmed by the Crown, and then to submit the dispute to a Quaker arbitration board of fourteen, who decided for Byllinge on the peculiar ground that it was impossible to divide the right to govern into many parties. Byllinge then appointed John Skene as deputy governor. In late 1685 Skene formally took over the government and fired most of the magistrates. The Assembly, however, overwhelmingly rejected a new charter proposed by Byllinge.

By now, Edward Byllinge was not only the sole governor, but also the largest proprietor of West New Jersey, holding twenty shares of the more than one hundred. During 1687 the resident proprietors of the colony, like their counterparts in East New Jersey, established a Council of Proprietors of West New Jersey to decide on use and disposal of proprietary lands. Before his death at the turn of 1687, Byllinge sold all of his rights to Dr. Daniel Coxe, the English court physician and non-Quaker, who announced his repudiation of the Concessions.

*See H. N. Brailsford, The Levellers in the English Revolution (Stanford, Calif.: Stanford University Press, 1961), pp. 639–41.