Who Governs?

While Mahlon Stacy was enjoying the fruitful new land he and his fellow Quakers had settled in, a time bomb was ticking, set off by a poorly spelled letter written in Sept. 1679 by the Attorney General in England, Sir John Werden,1, which concluded with this: Quaere?

whether by the Graunt to the Quakers (& to Sr. G. Carterett) of the Soyle, &c. They be empowred to set up distinct Governements, Principallityes, or Commonwealths, within theire Respective Lands? or whether they are not still liable, as all other Inhabitants in these Territoryes are, to the Lawes established in New Yorke, for ye whole Territory depending on it?

This grew out of the controversy created by Gov. Andros when he insisted on collecting duties from the immigrants who settled along the Delaware River. Andros was certain that as governor of New York these people were his subjects, and they were certain that he had no authority over them whatsoever. Because of this conflict, the whole issue of who had the right to govern in New Jersey was laid on the table by John Werden.

But at this time, James Duke of York was distracted from focusing on his New World colonies. Things had gotten hot in England, ever since James refused to take an oath which required all officeholders to deny the basic principles of the Catholic religion, thus revealing himself to be a Roman Catholic. For the English who saw the pattern of Roman Catholic governance in Louis XIV, the King of France, this was anything but reassuring. They were certain that if James took the throne, he would establish an authoritarian government like Louis’. So, the parliament began to debate the Exclusion Bill, which prevented a Roman Catholic from coming to the throne of England. James’ brother Charles, who had no legitimate children of his own, solved the problem by dissolving parliament in 1679.

Concerned about the hostility toward James, Charles II decided that his brother should lie low for a while. In 1680 he appointed him Lord High Commissioner of Scotland, and James removed himself there. While deciding what to do with the Query from Sir John Werden, James was receiving petitions from Quakers in England and Scotland, led by his friend William Penn, to confirm the title to Edward Byllinge, which was still hanging in the wind. To avoid antagonizing the Quakers, James forwarded the Werden query to a commission who passed it on to prominent lawyer, Sir William Jones, to decide. William Jones had been attorney general from 1675 to 1679, when he resigned.

More Trouble for New Jersey

Meanwhile, on January 14, 1679/80, George Carteret died. Until this time, James had been restrained in his ambitions for the colonies by Carteret, who’s friendship with the king allowed him to promote settlement in East New Jersey without interference. But now James began to listen to his advisors who claimed that giving New Jersey away was a mistake, it having the greatest potential for producing income. So, with Carteret gone, the vise began to tighten. In March 1679/80, Gov. Andros ordered all “pretended Magistrates and Officers” to stop exercising authority and ordered his citizens to disobey their orders. Andros focused his attention on Carteret’s nephew, Philip Carteret, who was acting as governor of East New Jersey. In April, Philip Carteret was arrested (“violently and riotously halled out of his House by Night”) and removed to New York to stand trial before a special court of assize. The verdict, as expected, denied Carteret’s right to govern East New Jersey.

In May 1680, the New York Council minutes noted with disapproval that Thomas Budd had called for an election of members to an Assembly in West New Jersey. Budd was probably acting on behalf of the West New Jersey Commissioners. It was ordered that Budd be arrested for circulating papers; these papers were copies of the Concessions and Agreements, which all shareholders must sign in order to be eligible to vote in elections. It was also ordered that Budd be kept in custody until he could prove his right to call for an elected Assembly.

Apparently, a meeting took place, and an election was held, despite Andros’ threats. Eight men were elected, but records of that session have not survived. Andros dealt with this by approving five of them (Thomas Olive, John Wills, William Emley, Robert Stacy and Mahlon Stacy) to continue to act as commissioners under his authority.

William Jones’ Decision

Meanwhile, back in England, on July 28, 1680, William Jones wrote his opinion on the matter of governing New Jersey. He concluded that New York, and therefore James himself, had no right to collect any duties from residents of New Jersey, by reason of the grants to Berkeley and Carteret, in which there was “no reservation of any profit or so much as of Jurisdiction”2

This was a dramatic turn of events, made more dramatic when James immediately complied by confirming the title from Berkeley to Byllinge on August 6th. But he dismayed the Quakers when he ignored English law and granted the right of governing the colony not to the proprietors as a group, but to Edward Byllinge as an individual. He seemed to be arguing that when proprietary shares were sold by Byllinge and his trustees, the right to govern was not conveyed along with the right to land, that it remained in Byllinge’s hands, even though he did not have a majority of proprietary shares. In fact, James might not have realized what he was doing, because Byllinge was clever enough to have a deed already drawn up and ready for James’ signature.3

The Burlington County Court

Meanwhile (am I getting repetitious?)—back in West New Jersey, the new Burlington commissioners took steps to create a county court. Although the Concessions did provide for courts established by the General Assembly, it made no mention of county courts. It also did not discuss the creation of courts by the Commissioners. This leads me to think that the people of Burlington considered the election of 1680 as one for members of an Assembly rather than for commissioners. But that is just a guess.

In any case, to have a county court, you need a county, so one was created out of the first and second Tenths, the Yorkshire and London Tenths. This new county ran from the Assunpink down to Pennsauken Creek, and all the way across the state to the Atlantic. For those acquainted with New Jersey geography, it won’t be necessary to point out that the barren Pine Lands in the center of the province kept the settlers focused on the coastal area along the river.

As early as 1678, there were two courts with jurisdiction over the new settlements on the east side of the Delaware River, but they were supervised by “the high court of South River” in New Castle, which was the seat of government for the Delaware River valley ever since the Dutch controlled it in 1655. The records of that court from 1676 on have been published, but I have not seen them. In Burlington, the Commissioners who were managing affairs did not leave any records. Reed and Miller (editors of the Burlington Court Book) think this was deliberate, to avoid legal problems with Gov. Andros who thought the West Jersey Quakers were under his jurisdiction.

The Third, Fourth and Salem Tenths did not yet have enough population to support a county court, but residents there could bring cases to the Burlington court until Gloucester County was created out of the Third and Fourth Tenths in 1686. The earliest date in the Burlington Court Book is June 14, 1680. Listed are the names of four Commissioners, names of freeholders and inhabitants with suits to bring before the court, and jurors’ names. (Richard Green appears nowhere in the Burlington Court minutes.)

One gets the feeling that laws in West New Jersey were being made as they went along, as the need for them came up. So, the first orders coming from the Burlington Court involved selling rum to Indians without the Court’s permission, selling ale or beer without a license, and taking someone else’s boat from the landing without permission. Also, everyone was ordered to register the earmarks of their livestock, which were unfenced at this time. Two men received one-year licenses to keep an Ordinary or tavern “for selling Ale Beere and other Liquors and for the entertaining of Travellers.”4

Samuel Jennings

Before the conveyance from James to Edward Byllinge took place, the English Proprietors seem to have decided to send new commissioners headed by Samuel Jennings to West New Jersey, ignoring the Concessions’ requirements that they be chosen by the residents. Because news traveled so slowly, they may not have even been aware that the election had taken place in West New Jersey. By the time Jennings departed for Burlington, James had bestowed governance on Edward Byllinge, a fact as yet unknown in West New Jersey. How awkward for Jennings, who had been chosen by Byllinge to act as his deputy governor. It was left for Jennings, who arrived in Burlington in September 1680, to break the news.

It was not until November that Sir John Werden sent a letter to Gov. Andros informing him that he no longer had the power to collect duties from New Jersey-bound immigrants, or to manage the government there. Andros must have gotten the news somehow because shortly after arriving, Jennings wrote to Penn that custom duties were no longer being collected on the Delaware River.

Early Estates

From 1678 until 1681, Burlington wills and estates were handled by the Commissioners. There was only one Burlington estate recorded in 1678, a nuncupative (spoken) will by Thomas Kerby giving everything he owned to his mother. There wasn’t another Burlington estate until 1682, when Thomas Ellis left his house and smithy and his 1/64th of a proprietary share to his daughter Elizabeth. The executors and guardians were three of the most important people in the county, Samuel Jennings, Elias Farr and Tho. Budd.

What is bewildering to me is that William Nelson’s source is called “Burlington Records,” but that is a different record book from one kept by the Burlington Court. Nelson wrote in his introduction to the New Jersey Archives Abstracts of Wills 1670-1730, that the county courts handled the probate of wills and inventories, so I am surprised not to find any in the early pages of the Burlington Court book. Perhaps they were recorded separately in “Burlington Records.”

Where Was Richard Green?

There seems to be a complete lack of evidence that Green resided in early Burlington County. Given Samuel Green’s later connections with the Reading and Bull families who lived in Gloucester County, it seems likely that he would have lived there, especially since he had dealings with Anna Salter, who lived across the river from Gloucester and owned land in Gloucester and Salem. But he did not appear in the Gloucester Court Records either, which leads me to suspect that he died not long after arriving in West New Jersey, sometime after 1682.

Next Post: Samuel Jennings breaks the news, and a new Assembly assembles.


  1. NJ Abstracts, vol. I, pp. 290-91.
  2. Jones’ decision, NJA I: 323-24. I am guessing that William Jones resigned as attorney general about the time that Charles II dissolved Parliament. Jones became a member of Parliament after rendering his decision on WNJ, on Nov. 3, 1680, where he became one of the strongest supporters of the Exclusion Bill.
  3. Byllinge is such a cagey and interesting character. But to digress here to study his life is too much of an indulgence. However, he becomes very important to West New Jersey, so I will probably be writing a lot more about him.
  4. I have not mentioned anything about the settlement of Fenwick’s colony at Salem, which was begun in 1675, and all the trouble he managed to get into, because Samuel Green seems to have had no connection with Salem. This is not meant to suggest that Fenwick is not a fascinating chapter in New Jersey history. He was one of those marvelous eccentrics that our State has such an abundance of.