Philadelphia Reflections

The musings of a physician who has served the community for over six decades

1 Volumes

History: Philadelphia and the Quaker Colonies
Philadelphia and the Quaker Colonies

Chapter on Government

New topic 2018-07-17 20:29:47 description

Jury Nullification

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Tom Monteverde

We must be grateful to the late distinguished litigator, Tom Monteverde, for reminding us of the importance of the jury in American history. Juries seldom realize how much power they can have if they unite on a common purpose. In fact, juries have the implicit right to veto almost anything the rest of government does, by rendering it unenforceable. If the jury opinion is a majority view, nothing but a civil war can legally stop them. So it helped Washington to have jury nullification seem an invincible Quaker idea, while the South trusted a rich slave-owner who had renounced power.

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William Penn

The right to a jury trial originated in the Magna Carta in 1215, but a jury's essentially unlimited power was established four centuries later by Quakers. The legal revolution grew out of the 1670 Hay-market case, where the defendant was William Penn, himself. Penn was accused of the awesome crime of preaching Quakerism to an unlawful assembly, and while he freely admitted his guilt he challenged the righteousness of such a law. The jury refused to convict him. The judge thus faced a defendant who said he was guilty and a jury who said he wasn't. So, the exasperated judge responded -- by putting the jury in jail without food.

The juror Edward Bushell appealed to the Court of Common Pleas, where the problem took on a new dimension. The Justices certainly didn't want juries flouting the law, but nevertheless couldn't condone a jury being punished for its verdict. Chief Justice Vaughn decided that intimidating a jury was worse than extending its powers, so the verdict of Not Guilty was upheld, and Penn was set free. Essentially, Vaughn agreed that any jury that wasn't allowed to acquit was not really a jury. In this way, the legal principle of Jury Nullification of a Law was created. A verdict of not guilty couldn't make William Penn innocent, because he pleaded guilty. A verdict of not guilty, under these circumstances, meant the law had been rejected. Jury nullification thus got to be part of English Common Law, hence ultimately part of the American judicial system.

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Andrew Hamilton

This piece of common law was a pointed restatement of just who was entitled to make laws in a nation, whether or not nominally it was ruled by a king or a congress. Repeated British evasion of the principles of jury trial became an important reason the American colonists eventually went to war for independence, and probably a better one than some others. The 1735 trial of Peter Zenger was an instance where Andrew Hamilton, the original "Philadelphia Lawyer", convinced a jury that British law, blocking newspapers from criticizing public officials for improper conduct, was too outrageous to deserve enforcement in their court. In that case, jury defiance became even more likely when the judge instructed the annoyed jury that "the truth is no defense". Benjamin Franklin's Pennsylvania Gazette was here quick to come to the side of jury nullification, saying, "If it is not the law, it ought to be law, and will always be law wherever justice prevails." Franklin quickly became allied with Andrew Hamilton, who became Speaker of the Pennsylvania Assembly.

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John Hancock

The Zenger case was often stated to be the origin of the Freedom of the Press in our Constitution fifty years later, but in fact the First Amendment merely provides that Congress shall pass no laws like that. Hamilton had persuaded the Zenger jury they already had the power to stop enforcement of such tyranny, and the First Amendment could be seen as trying to prevent enactment of laws that will foreseeably incite a jury to revolt.

The Navigation Acts of the British government, for example, were predictably offensive to the American colonists, whose randomly chosen representatives on juries were then rendered useless with their wide-spread refusal to convict. This, in turn, provoked the British ministry. John Adams made a particularly famous defense of John Hancock who was being punished with confiscation of his ship and a fine of triple the cargo's value. Adams was later singled out as the only named American rebel the British refused to exempt from hanging if they caught him. As everyone knows, Hancock was the first to step up and sign the Declaration of Independence, because by 1776 there was widespread colonial outrage over the British strategy of transferring cases to the (non-jury) Admiralty Court. Many colonists who privately regarded Hancock as a smuggler were roused to rebellion by the British government thus denying a defendant his right to a jury trial, especially by a jury almost certain not to convict him. To taxation without representation was added the obscenity of enforcement without due process. John Jay, the first Chief Justice of the Supreme Court of the newly created United States, ruled in 1794 that "The Jury has the right to determine the law as well as the facts." And Thomas Jefferson built a whole political party on the right of common people to overturn their government, somewhat softening, it is true, when he grasped where the French Revolution was heading. Jury Nullification then lay fairly dormant for fifty years. But since the founding of the Republic and the reputation of many of the most prominent founders was based on it, there was scarcely need for any emphasis.

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Slave

And then, the Fugitive Slave Law of 1850 began to sink in. It became evident that juries in the Northern states would routinely refuse to convict anyone under that law, or under the Dred Scott decision, or any other similar mandate of any branch of government. In effect, Northern juries threw down the gauntlet that if you wanted to preserve the right of trial by jury, you had better stop prosecuting those who flouted the Fugitive Slave law. In even broader terms, if you want to preserve a national government, you had better be cautious about strong-arming any impassioned local consensus. A rough translation of that in detail was that no filibuster, no log-rolling, no compromises, no oratory, no threats or other maneuvers in Congress were going to compel Northern juries to enforce slavery within their boundaries of control. All statutes lose some of their majesties when the congressional voting process is intensely examined, and public scrutiny of this law's passage had been particularly searching. Even if Southern congressmen would be successful in passing such laws, it wasn't going to have any effect around here. The leaders of Southern states quickly got a related message, and their own translation of it was, "We have got to declare our independence from this system of government that won't enforce its own laws". If juries can nullify, then states can nullify, and the national union was coming to an end. Both sides disagreed so strongly on this one issue they were willing, for the second time, to risk war for it.

Ku Klux Klan

The idea should be resisted that Jury Nullification is always a good thing. After the Civil War, many of the activities of the Ku Klux Klan were tolerated by sympathetic juries. Many lynch mobs of the Wild, Wild West were encouraged in the name of law and order. Prohibition of alcohol by the Volstead Act was imposed on one part of society by another, and Jury Nullification effectively endorsed rum-running, racketeering, and organized crime. The use of marijuana and abortion are two further examples where disagreement is so strong that compromise eludes us. What is at stake here is protecting the rights of a minority, within a society run by a majority. If minority belief is strong enough, jury nullification issues an unmistakable proclamation: "To proceed farther, means War."

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Oliver Wendell Holmes

That's a somewhat strange outcome for a process started by pacifist Quakers, so the search goes on for a better idea. Distinguished jurists differ on whether to leave things as they are. In a famous exchange, Oliver Wendell Holmes once had dinner with Judge Learned Hand, who on parting extended a lawyer jocularity, "Do justice, Sir, do justice." To which, Holmes then made the somewhat surly response, "That is not my job. My job is to apply the law."

Thus lacking any better approach, it is hard to blame the US Supreme Court for deciding this was something best left unmentioned any more than absolutely necessary. The signal which Justice Harlan gave in the majority opinion on the 1895 Sparf case was the very narrow ruling that a case may not be appealed, solely on the basis that the trial jury was not informed of its right to nullify the law in question. Encouraged by this vague hint, what has evolved has been a growing requirement that incoming jurors take an oath "to uphold the law", officers of the court (ie lawyers)are discouraged from informing a jury of its true power to nullify laws, and Judges are required to inform the jury in their charge that they are to "take the law as the judge lays it down" (ie leave appeals to higher courts). If a jury feels so strongly that it then persists in spite of those restraints, well, you apparently can't stop them. Nobody thinks this is a perfect solution, and aggrieved defendants like the Vietnam War protesters are quite vocal in their belief that the U.S. Supreme Court finally emerged with a visibly asinine principle: a jury does indeed have the right to nullify, but only as long as that jury is unaware it has that right. That's almost an open invitation to perjury if accurate; but while it's not precisely accurate, it comes close to being substantially true.

That's where matters stand, and apparently will stand, until someone finds better arguments than those of Benjamin Franklin, John Jay, Andrew Hamilton -- and William Penn.

First Amendment: Separation of Church and State

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Amendment 1 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances. {bottom quote}
The First Amendment

Simplified histories of America often declare that other Western Hemisphere colonists mostly came to plunder and exploit; whereas English Protestant colonists came with families to settle, fleeing religious persecution. That's a considerable condensation of events covering three centuries, but it is true that before the Revolutionary War, eleven of the thirteen American colonies approximated the condition of having established religions. Massachusetts and Virginia, the earliest colonies, had by 1776 even reached the point of rebelliousness against their religious establishments. The three Quaker colonies (New Jersey, Pennsylvania, and Delaware) were late settlements, in existence less than a century before the Revolution, and still comfortable with the notion they were religious utopias. While differing in intensity all colonials respected the habits of thought and forms of speech, natural to utopians residing in a religious environment.

Once Martin Luther had let the Protestant genii out of its religious bottle, however, revisionist logic was pursued into its many corners. Ultimately, all Protestant questers found themselves confronting -- not religious dogmatism, but it's opposite -- the secularized eighteenth-century enlightenment. Comparatively few colonists were willing to acknowledge doubts openly about miracles and divinity. However, private doubts were sufficiently prevalent among colonial leaders to engender restlessness about the tyrannies and particularly the rigidities of the dominant religions. To this was added discomfort with self-serving political struggles observable among their preachers, and alarm about occasional wars and persecutions over arguably religious doctrines. Arriving quite late in this evolution of thought -- but not too late to experience a few bloody persecutions themselves -- the Quakers sought to purify their Utopia by eliminating preachers from their worship entirely. Thus, the most central and soon the most prosperous of the colonies made it respectable to criticize religious leaders in general for the many troubles it was believed they provoked.

{London Yearly Meeting}
London Yearly Meeting
{Congress Hall}
Congress Hall

In all wars, diplomatic arts and religious restraints get set aside as insufficient, if not altogether failures for an episode of utter barbarism. In the Revolution, some Quakers split from pacifism and became Free Quakers, many more drifted into Episcopalianism, never to return to pacifism. The Constitutional Convention of 1787 was eventually held in this persisting environment; the previous service in the War counted for something, and the great goal was to strengthen the central government -- for more effective regional defense. A great many leaders were Masons, holding that much can be accomplished by secular leadership, independent of religious reasonings. Neither Washington nor Madison revealed much of their religious positions, although Washington the church attender always declined communion; Franklin and probably Jefferson were at heart deists, believing that God might well exist, but had wound up the universe like a clock to let it run by itself. The New England Calvinist doctrines have since evolved as Unitarianism, which outsiders would say theologically is not greatly different from deism. Physically surrounding the Philadelphia convention was a predominantly Quaker attitude; entirely too often, preachers get you into trouble.

When the first Congress finally met under their new constitution, they immediately confronted over a hundred Constitutional amendments, mostly submitted from the frontier and fomented by Jefferson and Patrick Henry, demanding a bill of rights. The demand within these amendments was overwhelming that the newly-strengthened central government must not intrude into the rights of citizens. Recognizing the power of local community action, states rights must similarly be strengthened. Just where these rights came from was often couched in divine terms for lack of better proof that they were innate, or natural. From a modern perspective, these rights in fact often originated in what theologians call Enthusiasm; the belief that if enough people want something passionately enough, it must have a divine source. The newly minted politicians in the first Congress recognized something had to be done about this uproar. Congress formed a committee to consider matters and appointed as chairman -- James Madison. Obviously, the chief architect of the Constitution would not be thrilled to see his product twisted out of shape by a hundred amendments, but on the other hand, a man from Piedmont Virginia would be careful to placate the likes of Patrick Henry. The ultimate result was the Bill of Rights, and Madison packed considerably more than ten rights into the package, in order to preserve the cadence of the Ten Commandments. The First Amendment, for example, is really six rights, skillfully shaped together to sound more or less like one idea with illustrative examples. Overall freedom of thought comfortably might include freedom of speech (and the press), along with freedom of religion and assembly, and the right to petition for grievances. But what it actually says is that Congress shall not establish a national religion. Since eleven states really had approximated a single established religion, the clear intent was to prohibit a single national religion while tolerating unifications within the various states. Subsequent Supreme Courts have extended the Constitution to apply to the states as well, responding to a growing recognition that religious states had the potential to get so heated as to war with each other. No matter what their doctrines, it seemed wise to deprive organized religions of political power as a firm step toward giving the Constitution itself dominant power over the processes of political selection.

At first however it was pretty clear; one state's brand of religion was not to boss around the religion of another state. Eventually within one state, Virginia for example, the upstate Presbyterian ministers were not to push around the Episcopalian bishops of the Tidewater. Madison and Jefferson saw well enough where political uprisings tended to start in those days, in gathered church meetinghouses. In this way, an Amendment originally promoted to protect religions had evolved into a way to ease them out of political power. The idea of separation of church and state has grown increasingly stronger, to the point where most Americans would agree it defines a viable republic. No doubt, the spectacle of preachers exhorting the same nation in opposite directions during the Civil War, settled what was left of the argument.

For Quakers, the most wrenching, disheartening revelation came when they were themselves in unchallenged local control during the French and Indian War. The purest of motives and the most earnest desire to do the right thing provided no guidance for those in charge of the government when the French and Indians were scalping western settlers and burning their cabins. Yes, the Scotch-Irish settlers of the frontier had unwisely sold liquor and gunpowder to the Indians, and yes, the Quakers of the Eastern part of the state had sought to buffer their own safety from frontier violence by selling more westerly land to combative Celtic immigrant tribes. A similar strategy had worked well enough with the earlier German settlers, but reproachful history was not likely to pacify frontier Scots in the midst of a massacre. The Quaker government was expected to do what all governments are expected to do, protect their people right or wrong. To trace the social contract back to William Penn's friend John Locke was too bland for a religion which prided itself on plain speech. Non-violent pacifism just could not be reconciled with the duties of a government to protect its citizens. The even more comfortably remote Quakers of the London Yearly Meeting then indulged themselves in the luxury of consistent logic; a letter was dispatched to the bewildered Quaker Colonials. They must withdraw from participation in a government which levied war taxes. And they obeyed.

Although the frontier Scots were surely relieved to have non-Quakers assume control of their military duty, the western part of the state has still neither forgotten nor forgiven. In their eyes, Quakers were not fit to be in charge of anything. Quaker wealth, sophistication and education were irrelevant; only Presbyterians are fit to rule. A strong inclination toward pre-destination lurks in that idea. Once more, the attractiveness of clear separation of church and state is reinforced.

The French and Indian War in fact had turned out fairly well; most of its victories were located on the European side of the Ocean, anyway. But twenty years later the Revolutionary War turned into a reassertion of the British conquest of all of North America, not merely the part to the west of the Appalachian mountains. To Americans, this came in the form of a demand for taxes to help pay off the costs of a war which greatly benefitted them. The Quaker colonies did not fully sympathize with rebellion, but they had once given up control of a territory larger than England rather than pay war taxes, so they were resistant to both sides in the dispute. Many prosperous and educated Quakers solved their dilemma by fleeing to Canada, but the ardent Quaker proposal for dealing with a coercive British government was not at all impractical. John Dickinson, in particular, argued that since the British motives were economic, success was most likely to come from economic counter-pressure, adroitly leveraged by three thousand miles of intervening ocean. That was shrewd and potentially effective. But the Scots-Presbyterian position was simpler and more direct. If you want us to fight your war, you are going to have to fight to win. The Virginia Cavaliers were probably more likely to win a conventional war if put in charge, but the blunt and almost savage frontiersmen were ideally suited for what has come to be called guerrilla warfare. Washington was a leader, French money was welcome and Ben Franklin was a diplomat, but the clarion call to this particular battle was the voice of Patrick Henry. All in all, the issue of established religion was far more complicated than merely the affirmation of a right to free exercise of religious belief. What united all the colonies was a recognition that, using the church, an arm of the government was just as likely to cause trouble as conducting the state as an instrument of church interests. Eventually, considering how religious America was at the time, there was remarkably little resistance to the firm separation of Church and State in its Constitution.

John Dickinson, Quaker Hamlet

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John Dickinson

John Dickinson (1732-1808) would probably be better known if his abilities were less complex and numerous. It would have been particularly helpful if he had consistently remained on only one side of the important issues of his day. Born in a Quaker family and buried in a Quaker graveyard, he was for years a notable Episcopalian and soldier. He outwitted John Penn, the Pennsylvania Proprietor who was trying to keep Pennsylvania from sending representatives to the Continental Congress, by having the Pennsylvania representatives hold a meeting in the same small room of Carpenters Hall at the same time as the Congress. But he ultimately refused to sign the Declaration of Independence. Although he was the main author of the Articles of Confederation, the Constitution which replaced it would not have been ratified without his idea of a bicameral Congress. Although he was Governor of Pennsylvania, he was also Governor of Delaware, has been the central figure in the separation of the two states. In fact, for fifteen years he was a member of the Legislature of both states. Dickinson seems in retrospect to have been on every side of every argument, but he was immensely respected in his time.

Two events seem to have been central in the organization of his life. The first was his education as a lawyer. At that time and for a century afterward, lawyers were trained by apprenticeship. Dickinson, however, studied in London at the Inns of Court for four years and was by far the most distinguished lawyer in North America for the rest of his life. Furthermore, he absorbed the principles of the Magna Carta and the approaches of Francis Bacon so thoroughly that he never quite got over his pride in his English heritage. Throughout his leadership of the colonial rebellion, he acted as a better Englishman than the English themselves. His demand was for American representation in the British Parliament, not independence from England. It would not be hard to imagine Dickinson standing before a firing squad, gritting the words of St. Paul, Civis Romani Sum.

His other pivotal experience was the Battle of Brandywine. Dickinson had been the organizer or chairman of the two main Pennsylvania military organizations, the Pennsylvania Committee of Safety and Defense, and the so-called Associators (today's 111th Infantry, the first battalion of troops in Philadelphia). Both of these particular names were a characteristic gesture to conciliating pacifist Quaker feelings. Nevertheless, when Dickinson refused to sign the Declaration, he did temporarily become so unpopular he resigned his military commands. A few months later, when General Howe landed at Elkton at the narrow neck of the Delmarva peninsula, Dickinson enlisted as a common soldier to defend the southern perimeter of the defense line Washington had hastily thrown up to defend Philadelphia. Shortly afterward, Dickinson's friend and neighbor Caesar Rodney made him a Brigadier General in charge of the garrison around Elizabeth New Jersey, but the Battle of Brandywine taught an important lesson. Little states like Delaware and Maryland could not possibly defend themselves witho

A Pennsylvania Farmer in Delaware

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John Dickinson

It is difficult to have a coherent view of the mind of John Dickinson. Seriously offended by the Townshend Acts, he rightly perceived them to be the work of a few malignant personalities in British high places who would mostly soon be replaced. Later on, he refused to be troubled by the inconsequential Tea Act, which he appraised as a face-saving gesture of reconciliation, but more recent historical information demonstrates was more likely aimed at avoiding an unrelated vote of no-confidence in Parliament. Unfortunately, Dickinson was too remote from these events and additionally could not comprehend reckless hotheads among his own neighbors. Reckless hotheads in turn seldom comprehend the measured meekness of Quakers. In any event, although Dickinson played a major role in the Declaration of Independence, he refused to sign it when the time came, evidently sensing an opportunity to separate the three lower counties from Pennsylvania and its Proprietors. A few months later when the British actually invaded the new State of Delaware on the way to capturing Philadelphia by way of Chesapeake Bay, Dickinson enlisted as a common soldier and fought at the Battle of Brandywine. Obviously, he was seriously conflicted.

{John Dickinson's Farmhouse}
John Dickinson's Farmhouse

Dickinson had become internationally famous for twelve letters he had meant to publish anonymously. The Letters From a Pennsylvania Farmer were written about 1768 out of resistance to the Townshend Acts. Because the three counties which were to become the State of Delaware were then still part of Pennsylvania, many school children have become understandably confused about the actual location of the man who became governor of both states, simultaneously.

The causes of the separation of the two colonies are still a little vague. Delaware schoolchildren are taught the two states separated, but often report they didn't retain much information about why it happened. The Dutch and Swedes who originally settled southern Delaware were not sympathetic with Quaker rule, which could be seen as a reaction to their living here for generations as Dutchmen before William Penn arrived, but then saw the colony sold out from under them. As a further conjecture, there might have been friction with the Quakers over slavery, similar to the hostility of other Dutch settlers in northern New Jersey when William Penn purchased that area. This pro-slavery attitude resurfaced in both areas during the Civil War. One alternative theory which has considerable currency in Delaware is local dissension about Quaker pacifism during the Revolutionary War. On a recent visit to Dickinson's home outside Dover, a school teacher was overheard to instruct his flock that the Dutch Delawarians wanted to fight the British King, but the Quakers wouldn't give them guns. "We value peace above our own safety," was the unsatisfying response they received from the Pennsylvania Assembly. But that line of reasoning bumps up against Dickinson's role in local affairs, his ambiguity over the Declaration, and his vacillation in warfare. One would suppose the simultaneous Governor of both states would play a major role in the separation of the two.

{over Air Force Base}
over Air Force Base

Dickinson's plantation, quite elaborately restored and displayed, is tucked behind the Dover Air Force Base. Perhaps all that aircraft noise will discourage sub-development in the area of Dickinson's plantation and the rural atmosphere may persist for years. At the time of the Cuban missile crisis, your correspondent happened to be driving past, observing the sky filled with bombers, just circling and circling until the diplomats settled matters. Since eight-engine bombers are seldom seen around Dover, it has always been my presumption that they came from elsewhere to be refueled at Dover; but that's just a presumption. One of the pilots later told me he was carrying nuclear "eggs" and was completely prepared to take a long trip to deliver them.

To get back to Dickinson's wavering about the Declaration, maybe there was a good reason to waver. Joseph J. Ellis (in His Excellency, George Washington) relates that after the devastating British defeat at the Battle of Saratoga, Lord North made an offer to settle the war on American terms. In a proposal patterned after the concepts of the separatists in Ireland, America could have its own parliament as long as it maintained trade relationships with England. As an opening offer, that comes pretty close to what the colonists had been demanding. Governor Morris was active in disdaining this offer, although it is unclear whether he was acting alone or as the agent of others. The offer came too late to be accepted, but it might have shortened the war by six years, and we might now have a picture of the Queen on our postage stamps.


REFERENCES


His Excellency: George Washington: Joseph J. Ellis: ISBN-13: 978-1400032532 Amazon
Letters From A Farmer In Pennsylvania To The Inhabitants Of The British Colonies (1903): John Dickinson: ISBN-13: 978-1163969533 Amazon

Concessions and Agreements

{Concessions and Agreements}
Concessions and Agreements

The United States Constitution is a unique achievement, but it had significant precursors, many of which James Madison had studied at Princeton. In the days of difficult ocean travel, almost all colonies were bound by an agreement to maintain loyalty to their European owners in spite of receiving latitude to govern themselves. Charters and documents defining these roles were generally written by the owners, and the colonists could pretty much take them or leave them. In the case of New Jersey in 1664, however, a very formidable lawyer and friend of the King named William Penn was drawing up agreements to his own conditions of sale, taking care that the grant of governing authority he received was favorable. Penn's relationship to the King was unusually good, to say the least. He had more reason to be wary of nit-pickers in the King's administration, trying to anticipate every conceivable disappointment for some successor King.

For his part, Penn wanted to make colonial land attractive to re-sell to religious groups who had experienced harsh government oppression; he wanted no obstacles to his announcing there would be no religious oppression in New Jersey. He was offered the role of sub-king although he hastily rejected any such title, and needed to repeat the formalities of the Charter to define his role and reassure his settlers about that matter. Furthermore, he was dealing with the heirs of Carteret and Berkeley, active participants in North and South Carolina. So Penn's method of achieving basic rights was influenced by prior thinking in the Carolinas, as the thinking of John Locke secondarily influenced matters in Delaware and Pennsylvania. These ideas were incorporated in a New Jersey document called "Concessions and Agreements." The concepts were not wholly the ideas of William Penn, but he did write it, and it does contain many ideas that were uniquely his. Understandings about limits were set down, argued about, and agreed to. The owner risked money, the colonist risked his life. Neither would agree unless a reasonable bargain was struck in advance of any dispute. Furthermore, the main value of a colony was beginning to shift from trading rights to real estate rights. Carteret and Berkeley had not only been principals in both the Carolinas and the Jerseys but had been involved in a number of such investments in Africa and the West Indies; New Jersey was just another business deal. It was conventional for documents of this type to define the method of selection of a governor, the establishment of an assembly of colonists, and some sort of council to attend to day to day affairs. In that era, few colonists would cross the ocean without a guarantee of religious freedom, at least for their own brand of religion. Standard clauses which may sound strange in today's real estate world, were then necessary because it was a transfer of not merely land, but also the terms of government. In the case of the Quaker colonies, many of these stipulations were included in the earlier charter from the King. It seems very likely that Penn hovered around and negotiated these points which he wished to have the King agree to; and then once the land was safely his, Penn repeated and expanded these stipulations with the colonists in his Concessions and Agreements . It wasn't exactly a Constitution, but it reads a lot like the one America adopted a century later.

{Proprietors House}
Proprietors House

Quakers had suffered persecution and imprisonment, and knew exactly what they feared; on the other side, it seems likely Carteret and Berkeley were less interested. So this real estate transfer document conceded almost anything the colonists wanted and the King would stand for, couched in conciliatory phrases. For example, no settler was to be molested for his conscience, and liberty was to be for all time, and for all men and Christians. Elections, by the way, must be annual, and by secret ballot. While law and order must prevail, nevertheless no man is to be imprisoned or molested except by the agreement of twelve men of the neighborhood. On the matter of slavery, no man was to be brought to the colony in bondage, save by his own consent (that is, indentured servants were to be permitted). And in what proved to be a final irony for William Penn, there was to be no imprisonment for debt. Almost all of these innovative ideas survived into the U.S. Constitution a century later, but the most innovative idea of all was to set them all down in a freely-made agreement in writing. This was not merely how a government was organized, it defined the set of conditions under which both sides agreed it would operate.

It was, of course, more than that. It was a set of reassurances to settlers who had been in New Jersey before the English arrived that they, also, would be treated as equals. It was a real estate advertisement to the fearful religious dissenters back in England that it was safe to live here. And it was a reminder to future Kings and Parliaments that this is what they had promised.

The pity and a warning, is that the larger vision of a whole continent governed fairly by common consent may have been too grandiose for a little band of New Jersey Quakers, surrounded as they were by an uncomprehending world. All utopias are helpless when stronger neighbors reject the basic premise. However, it was the expansion of the pacifist concept to the much larger neighboring territory of Pennsylvania that proved to be just too much for such a small group of friends to manage by consensus, particularly when unbelieving immigrants began to outnumber them. But the essential parts of it certainly remained in the minds of delegates to the Constitutional Convention in 1787. When the minutes of the Constitutional Convention speak of the "New Jersey Plan", the Concessions and Agreements was what they had in mind.


REFERENCES


Concessions and Agreements of New Jersey 1676: William Penn New Jersey State Library
Camden After the Fall: Decline and Renewal in a Post-Industrial City: Howard Gillette Jr.: ISBN-13: 978-0812219685 Amazon

Jersey

{Privateers}
Map of New Jersey

Once you notice the oddity of salt water in the lower reaches of the Delaware and Hudson rivers, it gets easier to understand the current theory that southern New Jersey was once an island. Like Long Island, it was separated from the mainland by a sound, but in the Jersey case the sound silted up from Trenton to New Brunswick, creating a new peninsula of "West" Jersey by uniting the island with the mainland. The colony was named after the island of Jersey off the coast of England, a gesture for Sir George Carteret, who was given the American area out of gratitude for once sheltering the exiled royal brothers Charles II and James from Cromwell, in that other Jersey. Cape May was probably a second distinct island later joined to the larger one by the transformation of the silted ocean into the bogs of the Maurice River. Cape May started as a whaling community, populated by Quakers from New York and New England, who always maintained a social distance from the Philadelphia Yearly Meeting. The long Atlantic beaches of New Jersey now repeat the main geological process, with successive generations of barrier islands first heaved up by the ocean and then packed against the mainland, filling up the brackish bay. The cycle of forming and packing successive barrier islands takes about three hundred years before a new one starts. In a larger sense, the process consists of the former mountains of Pennsylvania crumbling into the ocean and then responding to wave action.

It's no mystery, therefore, why southern New Jersey is flat, broken up by turgid meandering streams which casually empty in either direction. The head of Timber Creek, which flows into Delaware, is only eight miles from the head of the Mullica River, flowing toward the ocean. During the Revolutionary War, the British found it too dangerous to sail up these winding creeks, since at any moment they might make a sharp turn and be facing a battery of cannon on the shore. An arrangement quickly grew up that buccaneers would build ships in the center of heavy oak forests and sail them out to Barnegat Bay, thence out one of the inlets of the barrier islands into the blue water. The financiers of Philadelphia, many of them with names now in the Social Register, would come from the rear, sailing up the Delaware River creeks, and walking the last mile or two to privateer headquarters on the Atlantic-flowing creeks. Auctions were conducted, in which the ships were examined, the captain interviewed, and the crew observed in target practice. If you bought a small share you would be rich when the ship returned; and if it never returned, well, you had to invest in a different one. New Jersey is indignant of the opinion that these privateers were mainly responsible for winning the Revolution, but given little credit for it. Many more British sailors were lost to the privateers than soldiers were lost to Washington's troops and the economic loss to Great Britain of the ships and cargoes eventually became serious. Since much of the profit from privateering was recycled into the American war effort by Robert Morris, the British found themselves facing an enemy much more formidable than just the ragged frozen troops at Valley Forge on the Schuylkill. Meanwhile, William Bingham was conducting a similar privateering operation in partnership with Morris but based on the island of Martinique, but that's another story.

In later centuries, the traditions and geography of the Jersey Pine Barrens suited themselves to smuggling and bootlegging during the era of alcohol Prohibition, and even after Repeal, high taxes on liquor kept bootlegging profitable. As late as the 1950s, there were divisions of FBI men prowling the woods of South Jersey, on the lookout for trucks carrying bags of cane sugar, or coils of copper tubing. After housing developments started to invade the forests, the hardball politics of South Jersey reflected a Mafia culture thought more characteristic of South Philadelphia. Near Vineland and Atlantic City, it isn't just a culture, it has the accent, because it also has some of the ancestry.


REFERENCES


New Jersey, A Historical Account of Place names in the United States: Richard P. McCormick: ISBN-13: 978-0813506623 Amazon

Line Dividing East from West Jersey

The difference between what eventually happened to East Jersey and West Jersey after three hundred years illustrates the difference between an outstanding lawyer like William Penn, and the ordinary run of lawyers. Because we focus here on a title to land in real estate transactions, a three-paragraph historical synopsis is necessary. If you've wondered why you need to buy title insurance when you buy a house, read on.

Four years after his restoration to the throne in 1660, King Charles II got his brother the Duke of York to conquer New Netherlands by first granting him the land. New Netherlands extended from the Connecticut River to the Delaware River. He added that it was up to the brother to conquer it from the Dutch, who had been in disputed possession since 1614. By much the same pass-the-buck process, the Duke of York then conditionally subdivided that part of it which is now called New Jersey, jointly to Sir George Carteret and John, Lord Berkeley -- who promptly delegated the actual fighting to one Colonel Nicholls. The Jersey name derives from an island in the British Channel, where Carteret had once provided a haven from Cromwell for the exiled Charles and James. Nicholls defeated the Dutch on February 10, 1665, although later Dutch attempts at reconquest caused royal clouding of the Berkeley/Carteret titles, with the ultimate result that Berkeley sold his share to a Quaker Edmund Byllinge, and Carteret lost his right to govern but not his right to own, his half of the land.

{William Penn}
William Penn

At this point William Penn entered the picture as one of three Quaker trustees for Byllinge, who had gambling debts. A tenth of this share was given to John Fenwick, the 1675 settler of Salem, to settle his part of the disputes with Byllinge; the rest of it constituted what was to become the oldest American stockholder corporation, The Proprietors of West Jersey. The arrangement up to this point was firmly settled for the southern half of New Jersey by a Quintipartite Deed of July 12, 1676, , signed by the three Quaker trustees plus Byllinge and Fenwick. Aside from establishing the Proprietorship, the main point of this deed was the separation of West Jersey from East Jersey (the Carteret part) by a North-South line which still persists as the upper border of Burlington County. The right to govern this land was fully restored in 1680 by a Confirmatory Grant from James, probably after considerable lobbying in London by William Penn.

Presumably in pursuit of this final confirmation, Penn had negotiated a hundred-page agreement with prospective settlers which outlined his plans for governing, called the Concessions and Agreements of March 14, 1677, . Although its original purpose was mainly a real estate marketing tool, this landmark document seems not only to have persuaded the Duke of York but so shaped the thinking of the English colonies that many of its features are readily recognized in the American Constitution of 1787.

{ West and East New Jersey}
The line dividing West and East NJ

The land mass between the North and South Rivers (Hudson and Delaware) only came completely and legally into the hands of Quakers in 1681. At that time Carteret's widow, Lady Elizabeth, sold the northern half (East Jersey) to twelve Quaker proprietors, while the southern half (West Jersey) was already held by thirty-two other Quaker proprietors under the effective leadership of William Penn. It is somewhat uncertain who orchestrated this final consolidation, but there is a strong presumption that it was Penn. Since the main purpose of these business proprietorships was to sell land to immigrants, it was vital to minimize land disputes with accurate records and accurate surveying. With a history behind them of fifteen years of bickering, everybody concerned was surely ready for some peaceful organization. Both groups of proprietors, East and West, found it useful to delegate authority to a council of nine executive proprietors, whose main agent under the circumstances was logically the Surveyor General. For the next three hundred years, the surveyor generals were the men running things in New Jersey. The right of the Proprietors to govern was revoked by Queen Anne in 1702, but their land rights remain undisturbed to the present day, notwithstanding the intervening transfer of national power to the United States of America in 1776-83. Underneath all of this hustling and arranging, with exquisite attention to details, seems to be found the hand of William Penn. Almost immediately after New Jersey was packaged and delivered, King Charles paid off his family debt by turning over the far larger combined land mass of Pennsylvania and Delaware to William Penn, urging him to make himself a vassal king in the process. The Quaker instantly declined such a thing, but the power continues to reside in the final Royal Charter. It's only a conjecture, but it might help explain the strange acquaintance between a dissolute king and an abstemious Quaker to notice that the New Jersey tour de force astoundingly demonstrates how Penn was a man who really could be trusted to get complicated things done with dispatch.

Today, for practical purposes it all amounts to a company named Taylor, Wiseman, and Taylor; but we are getting a little ahead of ourselves. To go back to 1684 a surveyed line was clearly needed between the two proprietorships, as declared by the following resolution:

"Award we do hereby declare, that [the line] shall run from ye north side of ye mouth or Inlet of ye beach of little Egg Harbor north northwest and fifty minutes more westerly according to natural position and not according to ye magnet whose variation is nine degrees westward."

To clarify those quaint words, the survey was not to make the mistake made in the layout of Philadelphia, whose streets had intended to be true north and south but by using Magnetic North are actually twelve degrees off from that. Another important point is probably unclear to modern readers, who know the town of Egg Harbor on the mainland of Barnegat Bay but are largely unaware that the "beach of Egg Harbor" was what we now call Long Beach Island, on the east side of Barnegat Bay. The southern anchor of The Line was in what we now call Beach Haven, on the north side of the inlet, although beach erosion has put the southern anchor about two miles out to sea, locating a temporary marker in Beach Haven. Hardly anyone seems to be aware of it, but reread the sentence and observe the meaning is actually quite clear. The intent of the northern end of The Line (? the Delaware Water Gap ?) is buried in the obscurity of compass markings, but comes out slightly above Trenton on the Delaware River, extending beyond the river into Pennsylvania until it reached the river again in a crook on the far side of the Delaware Water Gap. Word of mouth has it that William Penn wanted to have both sides of the river although this triangle of Pennsylvania was eventually surrendered. It seems fair to say, the line was roughly intended to run from the Beach Haven ocean inlet to the Delaware Water Gap.

{Lord Berkeley}
John, Lord Berkeley

For its time, the survey of The Line was also a significant engineering achievement. The general plan was to lay out the course of the line in the wilderness until it hit a big boulder or anything else that was large and heavy. This became a marker along a line of 150 markers which could be used for local surveys and boundaries. After several less accurate attempts, the West/East line was surveyed by John Lawrence in 1743 and stands as the Official Province Division Line. A few years ago, a group of volunteers tried to locate all of the original markers and found 55 of them. The historical project took ten years.

All of the deeds of property in the State of New Jersey still depend on the original survey and the meticulous notes kept by the Surveyors General of these two Quaker organizations, without whose private records every title to every property would be clouded. With the passage of time, and especially the warfare of the Revolution, other copies of the surveys have disappeared. So, without the need to get ugly about it, these soft-spoken courteous folks retain a form of power it would be hard to match with sticks and stones, guns, threats or legalisms -- the only surviving record of everyone's title to his land. There is little reason to inquire further why these Proprietorships durably survived the revolution which overthrew King George III, and why no one has seen fit to enter the serious challenge to their claim of owning the whole state except for what they had already specifically sold.

Let's go back to a point made earlier. In all the complexities of the English Royal Court and uncertainties of uncharted wilderness, how did a little band of Quakers find themselves with uncontested ownership of a whole American colony? Some of the chaos of the age probably helped. King Charles unleashed his brother's armies in 1664. Also in 1664, Parliament passed the Second Conventicle Act, which provided that not more than five persons were permitted to worship together otherwise than according to the established ritual of the Anglican Church of England. This act might be described as an improvement on the First Conventicle Act of Queen Elizabeth, which provided that no one at all could so worship. However, this prohibition was so extreme it was ignored, whereas the Second Conventicle probably had some popular support. It thus can be imagined why Quakers were suddenly interested in leaving England, and not hard to understand how young William Penn was propelled into leadership by successfully overturning that Act in the Haymarket Case. Penn was both the defendant in the case and the defense lawyer, inventing the common law principle of jury nullification that has so confounded tyranny ever since. To go on with events current at the time, the Great Plague took place in 1665, making London an undesirable place for anybody to live. And finally, George Fox, the founder of Quakerism, took a journey to the new world in 1672, noting that the place now called Burlington, New Jersey was "a bravest country". Taken altogether, it is not hard to suspect this group of fairly wealthy, fairly well-educated people developed a collective resolve to buy up the pieces, assemble the parcel, and go away to live on it. Their organization into monthly local meetings, quarterly regional meetings, and annual national meetings was surely great assistance. From what we know of the broader vision of William Penn, it is fair to speculate his enthusiasm for this communications network first suggested by George Fox, or at least he's having a pretty quick recognition how it would assist the emigration venture.

{George Carteret}
George Carteret

George Carteret's widow was the last to sell out her land parcel to the East Jersey Proprietors, presumably drawn from the 1400 immigrants who had arrived in Burlington on five or six ships between 1678 and 1681. In particular, the ship Kent sailed from the Thames in 1677, bearing 230 Quakers, half from Yorkshire, the other half from London settling further south in West Jersey. Before that, Lord Berkeley had sold his half for a thousand pounds to John Fenwick and Edward Billynge, who arrived in Salem on the ship Griffin in 1674. These two soon fell out, with Fenwick taking a tenth of the land and settling around Salem. Billynge got into unspecified difficulties, probably gambling, and turned his property over to his three main creditors, William Penn, Gawen Lawrie, and Nicholas Lucas, who assembled the Proprietorship of West Jersey. Penn's remarkable talent for leadership again emerged in his statement of "Concessions and Agreements" with the Indians and new inhabitants. In another place, we discuss the reasons for thinking this document created the effective basis of the U.S. Constitution. By infusing it with the unspoken word of compromise, Penn created the main model explaining why the ratification of the Constitution remains the only time in history when thirteen independent nations voluntarily gave up sovereignty for the purpose of creating a larger vision -- which then held together for two centuries. But the voluntary union of East and West Jersey certainly has a claim to being earlier, although its claim to sovereignty is weaker.

Perhaps so, but since their interest in power was weaker, their achievement in peaceful negotiation with a secretly Catholic King was surely much greater. If some small group of religious dissidents should today emerge as having quietly and systematically bought up an entire state, however legally, the word conspiracy would be on every tongue. In this case, however, the reaction was peaceful consensus.

East Jersey's Decline and Fall

The colony of New Caesaria (Jersey) had two provinces, East and West Jersey, because the Stuart kings of England had given the colony to two of their friends, Sir George Carteret and John, Lord Berkeley, to split between them. Both provinces soon fell under the control of William Penn but it took a little longer to acquire the Berkeley part, so the Proprietorship of East Jersey was the oldest corporation in America until it dissolved in 1998.

{Apology for the True Christian Divinity}
Apology for the True Christian Divinity

It would appear that Penn intended West Jersey to be a refuge for English Quakers and East Jersey was to be the home of Scots Quakers. Twenty of the original twenty-four proprietors were Quakers, at least half of them Scottish. Early governorship of East Jersey was assumed by Robert Barclay, Laird of Urie, who was certainly Scottish enough for the purpose, and also a famous Quaker theologian. Even today, his Apology for the True Christian Divinity is regarded as the best statement of the original Quaker principles. However, Barclay remained in England, and his deputies proved to be somewhat more Scottish than Quaker. Eighteenth-century Scots were notoriously combative and soon engaged in serious disputes with the local Puritans who had earlier migrated into East Jersey from Connecticut with the encouragement of Carteret. This enclave of aggressive Puritans probably provided the path of migration for the Connecticut settlers who invaded Pennsylvania in the Pennamite Wars, so the hostility between Puritans and Quakers was soon established. The Dutch settlers in the region were also combative, so the eastern province of Penn's peaceful experiment in religious tolerance started off early with considerable unrest. Of these groups, the Scots became dominant, even referring to the region as New Scotland. To look ahead to the time of the Revolution, most of the East Jersey leadership was in the hands of Proprietors of Scottish derivation, with at least the advantage that these were likely to have been very vigilant in seeing Proprietor rights originally conferred by the British King, continue to be honored by the new American republic.

East Jersey was probably already the most diverse place in the colonies when loyalists and revolutionaries took opposite sides in the bitter eight-year war over English rule, with hatred further inflamed when the victors in the Revolution divvied up the properties of loyalists who had fled. The earlier conflict was created by management blunders of the Proprietary leadership itself. Instead of surveying and mapping, before they sold off defined property, like every other real estate development corporation, the East Jersey Proprietors adopted the bizarre practice of selling plots of land first and then telling the purchaser to select its location. In the early years, it is true that good farmland was abundant, but inevitably two or more purchasers would occasionally choose overlapping plots of land. The Proprietors were astonishingly indifferent to the resulting uproar, telling the purchasers that this was their problem. The outcome of all this friction was that settlers petitioned London for relief, and in 1703 Queen Anne took governing powers away from both the East and West proprietorships and unified the two provinces into a single crown colony. The Queen obviously nursed the hope that South Jersey would impose a civilizing influence on the North, but immigration patterns determined a somewhat opposite outcome. Both proprietorships, however, were allowed to continue full ownership rights to any remaining undeeded property.

In later years, the East Jersey Proprietors created more unnecessary problems by attempting to confiscate and re-sell pieces of land whose surveys were faulty, sometimes of a property occupied with houses for as much as fifty years. This East Jersey proprietorship, in short, did not enjoy either a low profile or the same level of benevolent acceptance prevailing in the West Jersey province. A climate of skepticism developed that easily turned any management misjudgment into a confrontation.

{New Jersey Line}
New Jersey Line

The East Jersey proprietorship operated by taking title to unclaimed land, and then reselling it. In what seemed like a minor difference, the West Jersey group never took title itself, but merely charged a fee for surveying and managing the sale of unclaimed land. The upshot of this distinction was that the East Jersey group got into many lawsuits over disputed ownership, which the West Jersey Proprietorship largely escaped. The nature of unclaimed land in New Jersey is for ocean currents to throw up new islands in the bays between the barrier islands and the mainland, or pile up new swampland along the banks of the Hudson and Delaware Rivers. Such marshy and mosquito-infested land may have little value to a farmer but lately has become highly prized by environmentalists, who supply class-action lawyers with that nebulous legal concept of "standing". The posture of the West Jersey Proprietors is to be happy to survey and convey clear title to a particular property for a fee, but a buyer must come to them with that request. The East Jersey method put its proprietors in repeated conflict over possession and title, with idealists enjoying free legal encouragement from contingent-fee lawyers. By 1998, the Proprietors of East Jersey had endured all they could stand. Selling their remaining rights to the State for a nominal sum, they turned over their historic documents to the state archives. The plaintiff lawyers could sue the state for the swamps if they chose to, but the East Jersey Proprietors had just had enough.

The only clear thing about all of this is that the Proprietors of West Jersey now stand unchallenged as the oldest stockholder corporation in America. It's not certain just what this title is worth, but at least it is awfully hard to improve on it.

Unalienable Rights Before 1776

{Privateers}
Magna Carta

In 1976, the bicentennial birthday celebration of the Declaration of Independence contained two major exhibits of its conceptual origins. Mr. H. Ross Perot of Texas loaned his copy of the 1215 Magna Carta, and the Proprietors of West Jersey loaned their 1677 original of William Penn's Concessions and Agreements to the colonists of New Jersey. The purpose of the exhibit was to emphasize the historical origins of the concepts within the Declaration, but even the language of the Concessions is remarkably similar, quite evidently lifted by Jefferson when he was writing. On one point, Penn had the better of Jefferson; he correctly wrote about inalienable rights, while somehow Jefferson gave us unalienable ones.

{Privateers}
William Penn

The matter came up recently at a Socrates meeting of the Right Angle Club, where at least one member felt there was no such thing as a natural right, while others wavered. In discussing the rights which the Creator, William Penn and/or Thomas Jefferson may have given us, the various contexts must be held in mind. At the time of declaring our intention to sever relations with Britain's King, there was no Constitution to refer to as a source, and it was impolitic to assert the rights had been given by English kings, like King John. Therefore, the language cleverly short-cuts around the divine right of kings to make a direct connection between the Creator and the colonists. William Penn on the other hand, was a real estate promoter, offering enticements and assurances to prospective colonists who were naturally fearful of risking their lives in sailboats, only to face the possible tyranny of a vassal king who might be even worse than the anointed one. Not only did Penn renounce any suggestion of a Royal role for himself, but went to considerable length describing the legally binding concessions and agreements he was offering. The right of trial by jury, for example, became a right to be punished only by a jury of twelve of one's neighbors. He wasn't talking to lawyers, he was making important distinctions very clear to laymen. These were not rights given by a Divinity who could be trusted, nor something which grew out of Mother Nature. They were the personal promises of William Penn, in personal legal jeopardy of the English courts if he reneged on them. He even had a ready answer for those who discovered the religious language in legal documents -- the Quaker belief that, occasional appearances to the contrary notwithstanding, There is That of God, in every man.

{Privateers}
H. Ross Perot

As a small sidelight of the Concessions document, it had long been housed in the little brick hut on Main Street in Burlington NJ, where the Proprietors of West Jersey keep their treasures. The obscurity of these papers was probably their best protection, but the risk of displaying them in Philadelphia at the centennial brought out the need to ensure them, hence to appraise their value. The figure of four million dollars was kicked around. Ross Perot might have felt comfortable with this sort of expense as the natural cost of being a rare book collector, but it seemed highly unnatural to Quakers. Sometime afterward, the Surveyor General, William Taylor, was awakened by a call from Burlington neighbors that someone was trying to break in the roof to steal contents of the Proprietorship building. The burglars were unaware that underneath the shingles, the roof was actually made of concrete a foot thick. So the perps were frustrated in their aims, but Bill Taylor was greatly troubled by the implications, actually unable to sleep at night worrying about what was in his custody. So, in time the State of New Jersey constructed a suitable archives building, and the valuable documents were transferred up to Trenton. Time will tell what the Soprano State does with such a valuable possession, but at least the Quakers can now sleep at night.

The Proprietorships of William Penn

William Penn became first interested in the Colonies when he acquired New Jersey as an investor in what started out as the bankruptcy proceedings of a client. Unlike his spoiled children and grandchildren, he was sincerely interested in helping the persecuted members of his new religion, and those who later totaled up his lifetime finances found that overall he lost money on his real estate ventures. His descendants, however, were mainly concerned with selling real estate, and soon reverted to Anglican church membership. When William Penn later received Pennsylvania and Delaware from the King of England (Charles II, the Stuart King restored with the help of his Admiral father), he not only owned these territories but for practical administrative reasons was offered the right to rule them. By then Penn's main future intention was to found a refuge for Quakers and other religious dissenters, so becoming a vassal King was graciously declined. Instead, he became a real estate Proprietor, after satisfying himself about the government and other arrangements in only a general way. At least half the original 13 colonies were also proprietorships, although the terms of their grants had great variation. Penn's intention for the proprietorship was to sell off as much of the property as possible, sort of benignly watching the process unfold in the parts he had sold.

There were two unforeseen flaws in this benevolent idea; the first was that his sons and heirs would abandon the Quaker faith and have little interest in his holy experiment except for the revenue it returned. The second flaw was to fail to see that vigorous religious toleration might eventually lead to the Quakers becoming outnumbered in their own refuge. Eventually, there does come a time in the real estate sell-off process when you have sold more than you retain. After that point, you may no longer dominate the politics, and in fact, that happened far sooner than half-way, because of Penn's unwillingness to employ force .

{Privateers}
William Penn

In land value, although perhaps not in land area, that point of loss of control had been reached by the middle of the eighteenth century, and it led to a famous battle between the Penn descendants and Benjamin Franklin. The Penn family saw no justice in paying taxes on the land they hadn't yet sold, or obeying laws created by their customers which extended beyond the land they owned; if they wanted to rule it all, they should buy it all. Franklin took the part of the settlers and immigrants, who resented paying taxes and fighting Indians on behalf of someone who still owned vast stretches of the land "within" the colony. A significant factor in this peculiar argument is that Thomas Penn, the dominant chief of the family descendants, had a deep and abiding suspicion of Franklin, dating back to that episode related in Franklin's Autobiography where Franklin raised a militia in King George's War when the pacifist Quakers refused to do so. Both sides had some justice in their positions, both sides appealed to the King. The Penns knew the King better, so Franklin lost. That was mostly what Franklin was doing in London in the years before the Revolution, and eventually, it took a Revolutionary war to resolve the issue. Some have said the episode showed Franklin was not as shrewd a politician as history books would portray him. In fact, it more likely emphasizes that Franklin was a loyal British subject right up to 1775. His position was that all parties were and forever would be, inhabitants of the British Empire, so they had equality under British rule. The Penns felt they had a right to consider Pennsylvania their own sovereign property, under which the colonists had no rights until they paid for them. It is easy to see how the notion of independence could take hold in this curious reversal of roles. Nevertheless, Pennsylvania did resolve the issue with the appearance of lawfulness, although with restrained generosity. To quote Sydney G. Fisher, writing in The Quaker Colonies, "When the people could have confiscated everything in Pennsylvania belonging to the proprietary family, they not only left them in possession of a large part of their land but paid them handsomely for the part that was taken." The matter is generally considered to have been finally settled by the Confirming Act of 1787, although few would now contend that fifteen pennies per acre is or was a handsome price.

And so, the Pennsylvania proprietorship was dissolved. In New Jersey, on the other hand, the proprietorship still exists. The land between the North River (Hudson) and the South River (Delaware) was divided into two proprietorships by a line drawn between the Delaware Water Gap, and Beach Haven on Long Beach Island. The southern segment was called the Proprietorship of West Jersey, informally peopled by English Quakers, and a northern half, the Proprietorship of East Jersey, informally ceded to Scots Quakers who proved to be more Scottish than Quaker. Temperamental differences might well have eventually led the two segments to take opposite sides of the 1860 Civil War except that it was the northern half that sympathized with slavery and the Southern Confederacy, while the Proprietorship of West Jersey was mostly where the anti-slavery movement began, with a Quaker named John Woolman. As matters turned out, neither slavery nor taxing unsold land became irreconcilable issues in the Jerseys. Unsold land of the Proprietorship was already fairly minor in New Jersey at the time of the Revolution, but the issue hadn't been forgotten by the Proprietors, either. A couple of the stockholders of the proprietorship were members of the Constitutional Convention. When the time came that other delegates urgently needed New Jersey's vote to ratify the new constitution, the Proprietor problem was "explained" to the other states. The outcome was that the proprietorship tacitly agreed to be taxed and regulated like any other property owner, while their own rights were respected as persisting under the new Constitution. Such a sensible outcome was probably not possible in Pennsylvania because there was so much more unsold land to fight about. The peacefully accepted consequence in New Jersey, even today, is that when the ocean creates a new strip of beach or a farmer abandons some land on the other side of a turnpike, it reverts to the Proprietorship as undeeded and untitled land. As such, it legally belongs to a little group of stockholders who meet once a year in Burlington or Salem, under a tree, and who can actually pay themselves annual dividends. It is however only true in half the state; the Proprietorship of East Jersey surrendered its rights to the State in 1998.

In Delaware, things are a little fuzzier. Delaware was once part of Pennsylvania, as its lower three counties. John Dickinson was once Governor of both states, but they had two legislatures from 1700 to 1776. The last time the proprietorship matter came up, so far as real estate lawyers can remember, was in the shifting sandy beaches of Cape Henlopen; things were smoothed out by making the disputed land into a state park.


REFERENCES


Encyclopedia of New Jersey Google Books
The Problem of West Jersey JSTOR
The Oxford History of the British Empire: The Origins of the Empire Google Books
A Map of East and West New Jarsey JPG
Council of Proprietors of West Jersey westjersey.org
Magna Charta: Part I: The Romance of the Great Charter; Part II: Pedigrees of the Barons: John S. Wurts: SIN: AB0006D91C4 Abe Books
West New Jersey: The Peculiar Province: ASIN: B00072HGTE Amazon
Why the Private School?: Allan V. Heely: ASIN: B000GR1QS2 Amazon

The Origins of Haddonfield

{Haddonfield's Dragon}
Haddonfield's Dragon

Haddonfield, New Jersey is named after Elizabeth Haddon, a teenaged Quaker girl who came alone to the proprietorship of West Jersey in 1701 to look after some land which her father had bought from William Penn. Geographically, the land was on what later came to be called the Cooper River, and it must have been a scary place among the woods and Indians for a single girl to set up housekeeping. It was related in the "Tales of a Wayside Inn" that Elizabeth proposed to another young Quaker named John Estaugh. Because no children resulted, she sent to her sister in Ireland to send one of her kids, a girl who proved unsatisfactory. So the kid was sent back, and Ebenezer Hopkins was sent in her place. Thus we have Hopkins pond, and lots of Hopkins in the neighborhood ever since. Eventually, the first dinosaur skeleton was discovered in the blue clay around Hopkins Pond, and now can be seen in the American Museum of Natural History, so you know for sure that Haddonfield is an old place. Eventually, the Kings Highway was built from Philadelphia to New York (actually Salem to Burlington at first) and it crosses the Cooper Creek near the old firehouse in Haddonfield, which claims to house the oldest volunteer fire company in America, but not without some argument about what was first, what is continuous, and therefore what is oldest. Haddonfield is, in short, where the Kings Highway crosses the Cooper, about seven miles east of City Hall in Philadelphia. The presence of the Delaware River in between makes a powerful difference since at exactly the same distance to the west of City Hall, is the crowded shopping and transportation hub at 69th and Market Street. Fifty years ago, Haddonfield was a little country town surrounded by pastures, and seventy years ago the streets were mostly unpaved. The isolation of Haddonfield was created by the river and was ended by the building of the Benjamin Franklin Bridge in 1926. If you go way back to the Revolutionary War, the river created a military barrier, and many famous patriots like Marquis de Lafayette, Dolley Madison, Anthony Wayne and others met in comparative safety from the British in the Indian King Tavern. In a famous escapade, "Mad" Anthony Wayne drove some cattle from South Jersey around Haddonfield to the falls (rapids) at Trenton, and then over the back roads to Washington's encampment at Valley Forge. In retaliation, the British under Col John Simcoe rode into nearby Salem County and massacred the farmers at Hancock's Bridge who had provided the cattle. At another time, the Hessians were dispatched through Haddonfield to come upon the Delaware River fortifications at Red Bluff from the rear. Unfortunately for them, they encamped in Haddonfield overnight, and a runner took off through the woods to warn the rebels at Red Bank to turn their cannons around to ambush the attackers from the rear, who were therefore repulsed with great losses. These stories are told with great relish, but my mother in law found out some background truths. Seeking to join the Daughters of the Revolution in Haddonfield, she was privately told that the really preferable ladies' the club was the Colonial Dames. Quaker Haddonfield, you see, had been mostly Tory.

{Alfred Driscoll}
Alfred Driscoll

A local boy named Alfred Driscoll became Governor of New Jersey, but before he did that he was mayor of Haddonfield. He had gone to Princeton and wanted to know why Haddonfield couldn't look like Princeton. All it seemed to take was a few zoning ordinances, and today it might fairly be claimed that Haddonfield is at least as charming and beautiful as Princeton, maybe nicer. At the very least, it has less auto traffic. Al Driscoll went on to be CEO of a Fortune 500 pharmaceutical corporation, and everyone agrees he was the world's nicest guy. The other necessary component of beautiful colonial Haddonfield was a fierce old lady who was married to a lawyer. Any infraction of Al's zoning ordinances was met with an instant attack, legal, verbal, and physical. A street-side hot dog vendor set up his cart on Kings Highway at one time, and the lady came out and kicked it over. If you didn't think she meant business, there was always her lawyer husband to explain things to you. She probably carried things a little too far, and one resident was driven to the point of painting his whole house a brilliant lavender, just to demonstrate the concept of freedom. Now that she and her husband are gone, the town continues to be authentic and pretty, probably because dozens of other citizens stand quietly ready to employ some of her techniques if the need arises.

Forming the State of Delaware

{Philip Yorke 1st Earl of Hardwicke}
Philip Yorke, Earl of Hardwicke

When the Duke of York was within hours of being banished, he told his agent Sir John Werden to give the contested strip (now the state of Delaware) to Penn, but save out the town of Newcastle with a twelve-mile strip of land around it. Werden wrote that into the charter with a proviso based on the idea that the fortieth parallel was to the south of Newcastle, when in fact it was fifty miles north of it, and could not possibly conform to the stated boundaries. Both Penn and Baltimore learned the true situation in a year or two, and both attacked the other for dissembling ignorance, each seeking to take advantage of implausible arguments. What in fact they both discovered was that if the dividing line could be pushed a few miles south, Penn would acquire the mouth of the Susquehanna in the Chesapeake Bay, while if it went north a few miles, Maryland would acquire most of Philadelphia. Lord Hardwicke worked out a reasonable compromise which, while ignoring some plain language in the documents, eventually resulted in the Mason-Dixon line which is now reasonably comfortable for everybody, although first subjected to another two decades of wrangle.

{Delaware Wedge}
Delaware Wedge

Even part of the eventual compromise, a semicircular northern border, didn't come out right, resulting in a wedge of no-man's land. Landowners didn't enjoy paying disputed taxes, so they held up the settlement of the wrangle into the Twentieth Century. Eventually, the U.S. Supreme Court cut the wedge into two pieces, giving one piece each to Pennsylvania and Delaware. Meanwhile, disputes continued which had their basis in the way the semi-circular line was plotted out on the land. The surveyors ran 120 straight-line radii outward from the courthouse tower in Newcastle, and then connected the ends. Obviously, that resulted in 120 straight chords instead of a smooth semi-circle, and a couple of bulges had to be accommodated where the circle grazed other straight borders. The semi-circle crossed the Delaware River, so New Jersey helpfully abandoned its portion, only to regret its decision later when toll bridges were constructed, and ship channels deepened.

{King Charles I}
King Charles I

Two major societal changes took place between 1632 -- when Charles I granted the proprietorship of Maryland to the first Lord Baltimore -- and 1776 when all American real estate changed its rules. The first change was that the Delaware Bay morphed from a swamp into settlements of people; settlers came into possession. The second evolution was to the current view that if you sell some real estate it is no longer yours; in earlier eras, everything belonged to the king, who could take it away and give it to others as often as he pleased. In legal terms, the last king had the last word. Although acres of parchment were scribbled by lawyers pro and con, these considerations are what make clear how Lord Baltimore could hold the unchallenged legal title for fifty years to everything up to the fortieth parallel, but then have a court take away thousands of square miles. A land which was to become the three lower counties of Pennsylvania was given to William Penn by the Duke of York in 1682, using some flawed documents and only fully enjoyed by Penn's heirs for six years until they morphed into the new State of Delaware. From 1684 to 1769, legal ownership was a matter of continuing dispute. The exasperated Lord Chancellor (Hardwicke) in 1750 declared the case as one "of nature worthy of the judicature of a Roman senate rather than of a single judge".

{Lord Baltimore}
Lord Baltimore

Lord Baltimore had been given "unsettled" land, occupied only by savages. William Penn's lawyers struggled to prove the Dutch had settled the area before 1632, while Baltimore's lawyers sought to prove that pirates and wandering fur traders don't count, nor do villages of thirty people who were wiped out by the Indians. By the Doctrine of Discovery, taking land from pagans was encouraged, but taking land from Christians required special formalities. Since this Doctrine dates back before there were Protestants, it might have been pertinent to inquire whether the Dutch should be regarded as pagans, as the Spanish surely did when they suppressed Dutch independence in the Eighty Years War, ending in 1648.

Lord Baltimore advertised land along Delaware for sale to settlers while the matter was still under litigation. That was the foulest play said Penn, a weak argument to make if litigation was intentionally pursued for a century.

Maryland favored the Catholic cause, so it seemed plausible for them to want to stall, hoping the Catholic Duke of York would ascend to the throne. Under the new King James II, however, Baltimore seemed unlikely to prevail that the same person, as Duke of York, really didn't own the land he was trying to give to William Penn. So of course, Lord Baltimore claimed he never stalled.

{Cape Henlopen}
Cape Henlopen

And by the way, ocean currents moved Cape Henlopen a mile or so southward, but the real boundary problem was that common usage over the centuries confused Cape Henlopen with Fenwick's Island (to which it is usually attached by a thin barrier island), making an implicit difference in the Maryland/Delaware ownership of the corresponding strip of land at the southern border of the State of Delaware, a matter of a hundred or so square miles.

And all of this confusion was merely about the borders of one of the smallest of our fifty states. The political manner in which Delaware became a colony without a charter to the King, and became a state by gradual and mystifying degrees separate from the other counties of Pennsylvania are other complicated stories. Never mind the reasons Delaware remained in the Union during the Civil War, even though it also remained a slave state.

With gratitude to the memory of Dudley Cammett Lunt 1896-1981, whose books are a most readable but scholarly analysis of this complicated history. In particular, The Bounds of Delaware and, for the Mason-Dixon Line, Taylor's Gut in the Delaware State are recommended. The courts rejected arguments that the land was essentially wilderness when Lord Baltimore acquired his patent, and history has been sympathetic to Penn, the winner. The contention was the Dutch owned the land by right of discovery ( a Doctrine applied to land ruled by pagans by Pope Nicholas II in 1454), while the Duke of York later took it from the Dutch by surrender to force of arms -- another legally benign method of acquiring sovereignty. However, Lunt points out that a far more significant issue was the southern border of Pennsylvania in Penn's original grant, which asserted geographical impossibility to replace Maryland's plain and simply defined boundary. History has tended to regard this as understandable error, and subsequent legal quarrels to have been perpetuated by William Penn's greedy heirs. However, Lunt seems to reveal his own opinion of the affair by ending his book with a July 31, 1683 quotation from a letter by William Penn to Colonel Thomas Tailleur:

I, finding this place necessary to my Province and it ye Presence of Ld. Balt. was at Law, civil & common, I endeavoured to get it, & have it, & will keep it if I can.

 

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12 Blogs

Jury Nullification
William Penn demonstrated one of the most incisive legal minds in England by trapping the British courts in what remains a central unresolved dilemma for the law. He was the defendant in his own case. By the South's way of looking at things, it was a pacifist effort to restrain mindless abolitionism. Meanwhile, both sides calculated it would win if the South decided to fight.

First Amendment: Separation of Church and State
Eleven of the original thirteen colonies had,"established" religions. The separation of church and state by the First Amendment was not a statement of fact, but a worrisome departure from the past, mostly prompted by the behavior of the Virginia Episcopalians. For the Pennsylvania Quakers, disestablishment was a most disheartening event.

John Dickinson, Quaker Hamlet
John Dickinson was the most respected lawyer and politician of his time. He had a lot to do with writing the Declaration of Independence but refused to sign it.

A Pennsylvania Farmer in Delaware
John Dickinson achieved national fame in 1773 by publishing twelve letters written earlier denouncing the Townshend Acts. They were published anonymously as Letters From a Pennsylvania Farmer. His farm, curiously, was in Delaware.

Concessions and Agreements
Most 17th Century colonies were proprietorships, requiring agreements for local autonomy without losing allegiance to the home country. William Penn cleverly expanded the New Jersey document into the intellectual precursor of the U.S. Constitution.

Jersey
Understanding New Jersey means understanding its unusual geography, and its Quaker origin as one of the three colonies owned by William Penn.

Line Dividing East from West Jersey
Although England had owned New Jersey for 17 years, it was unsettled until purchased by Quakers. By 1684 ownership was totally in the hands of two Proprietorships, or corporations, of Quakers. The boundary separating East from West Jersey was a line of 150 boulders from Beach Haven to Trenton. Every land title in the state is based on this survey.

East Jersey's Decline and Fall
Some day, a novelist will make East Jersey famous. There's lots of material there.

Unalienable Rights Before 1776
Lawyers commonly say the Declaration of Independence "informs" the Constitution. But prior informing was performed by William Penn, the Roman Empire, and Hammurabi.

The Proprietorships of William Penn
William Penn owned Pennsylvania, New Jersey, and Delaware; as the proprietor, he was the largest private American landowner, ever. Although the Revolutionary War mostly ended that, one of his proprietorships still owns all unclaimed land in southern New Jersey.

The Origins of Haddonfield
Haddonfield was founded by a 19-year-old Quaker girl in 1701 when it was still a fairly dangerous place to walk around. She has over 140 direct descendants, and forty of them still live in the town. Some famous scenes from the Revolutionary War took place here.

Forming the State of Delaware
In 1632, King Charles I granted to the Maryland proprietor coastal land with a northern border at the 40th parallel. In 1682, his son James the Duke of York evicted the Dutch from the Connecticut River to Cape Henlopen; afterward, his brother King Charles II gave away New Jersey and Pennsylvania, leaving York with New York plus a strip of wilderness from Pennsylvania to Henlopen. York then gifted that southern strip to William Penn before anyone realized there was a sloppy overlap with Maryland of thousands of square miles. Lawsuits are galore.