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the breach of them by the mortgagees, proving
in a clear and lucid manner that his rights had been
infringed, and great wrong and pecuniary loss followed.
He also discusses the prerogatives derived from the
Crown through Lord Berkley, and which had not
been abridged or relinquished by any act of his;
declaring how tenaciously he should adhere to them
in carr3nng out the methods of government as laid



59

dowu before they left England. The paper is a fair
exemplification of his grievances and certainly goes
far to prove his j^osition and justify his course.
The excitement that pervaded the little colony on
this subject can be understood "when the documents,
relating thereto, are found among the old papers of
the first settlers, and considered in their true light.

The offer of Edmund Warner to accept land for
his debt, and the conveyance of thirty-two thousand
unappropriated acres, by FeuAvick to the mortgagees
■within the limits of his tenth, done no doubt by way
of compromise, was perhaj)s the end of this fierce
and now so poorly understood controversy. Nothing,
however, changed the 02)inion of the chief proprietor
as in his will he expresses the same sentiments;
directs his executors to obtain a settlement with
Edridge and Warner, and clear his estate of the
shadow that overhung his title through their conduct
toward him. These things, doubtless, controlled
Richard Noble, the first Surveyor General, and pre-
vented him from following the instructions of the'
Patroou. Kichard Hancock, his successor, was influ-
enced likewise and also fell under the displeasure
of his employer.

The second division of these instructions further
says:

" Know of John Fenwick if he be willing jicac-eably to lot
the land he hath taken up of the natives, be divided into one
hundred part.«, according to our and his agreement in England,
casting lots fur the same; we being willing that those who being
settled and have cultivated ground now witli him, shall enjoy
the same without being turned out, althougli they i'all into our

lots "*** *** :* + *



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This shows that the division of the one-half of
New Jersey into one hundred lots was done with but
little knowledge of the country, and afterwards led
to trouble between Fenwick and the trustees of
Byllynge. As it w^as intimated, Fenwick had ex-
tinguished the Indian title beyond the bounds .of his
ten parts, and unless he consented to have the same
divided, his true position was to be shown the people;
having reference, doubtless, to the complicity of affairs
with Edridge and Warner. Inducements were to be
held out to Fenwick and his followers to abandon
their present settlement and remove to a new place
mutually agreed upon; but this offer they refused,
and continued to hold their estates separate from
that of Byllynge's trustees. These instructions, wdiich
are copied in Smith's History of New Jersey, show
the hostility that then existed between William Penn,
Gauen Laurie, Nicholas Lucas, Edward Byllynge and
Edmund Warner, on the one side, and John Fenwick
on the other side. Much pains is taken to guard the
commissioners against the subtlety and shrewdness of
the Patroon, and to have a constant care that he
does not in some w^ay circumvent them. The cause
of this is not very apj^arent, as the man they were
so susj^icious of, had done nothing beyond what may
be considered a fair and proper defence of his rights,
and the rights of those who had follow^ed him into
the forests of America. Whatever policy Fenwick
chose to pursue, the security to Edridge and
Warner under their mortgage was ample; and
no act of his could in any way impair the
title of the ninety j^arts of West New Jersey
which the trustees of Byllynge represented. The
trustees of Edward Byllynge evidently found them-



selves in an awkward position, and so placed by the
contest between Fenwick and his mortgage holders;
in which their enmity toward each other got
advantage of their better judgment. The forbearance
of William Penn was taxed to the utmost, and if
some unguarded expressions escaped him, they were
excusable under the circumstances. Ilis good offices,
for the time, were not heeded, but deliberation among
the contestants proved his advice and course of
conduct to be for their good.

Leaving the purlieus of Gray's Inn or the Inner
Temple, in London, and returning again to New
Jei*sey, it will be seen that the laying out of the lots
for a town at New Salem, at Alloways and at Cohanzic,
were ])roceeded with by Richard Hancock as Surveyor
General to the colony. The plan adopted was the
opening of a main street, running to and from a
landing place on the stream; the purchasers' lots of
sixteen acres each being on the one side of said
street; the op})Osite side being reserved by the chief
proprietor for his own benefit. The large tracts were
separately surveyed, certificates of description returned
and ap])roved by the Governor and Magistrates,
which j)erfected the title, the deeds having boi'n
previously executed, delivered and entered of record.

The notority of the trouble between Fenwick and
the trustees of Byllynge, and the holders of the
mortgage, bore its legitimate fruit, as no shij) ibllowed
the Griffin to New Jersey for nearly two years;
telling sadly upon the interests of the Patroon and
nmch to the discouragement of those who came with
him. liobert G. Johnson, Esq., says the Willing Mind
arrived November, UMl, with emigrants; the ship
Mary made two voyages the same year; the shi[)



62

Kent and the ship Success arrived the same year ;
the ships Willing Mind and Success came in 1679;
the ships New Adventure and Henry and Ann came
in 1681; and the ship Pink arrived in 1682; followed
by others at intervals of time for several years.
These did not comprise all the vessels that came into
the Delaware, and which brought persons with their
families, who settled in Fenwick's tenth. Some
found their way here through Maryland and Virginia^
while others landed at New Amsterdam.

Many of the first j)urchasers sold parts of their
tracts of land, and the Patroon continued to dispose
of sections of territory, upon most of which dwellings
were erected and land cleared for farming purposes.
Laws and regulations were made to keep pace Avith
the needs of the colony, which with but few
exceptions, prevented litigation, and had the approval
of the people. The books of the Society of Friends,
of which a large majority were members, show
that many disputes were settled within the pale
of the church; thus avoiding the scandal and expense
attendant upon their adjustment at law. The
machinery of their system of government worked
smoothly and yielded satisfaction to all who came
within its control. Amid all his troubles and
discouragements, the founder of the colony could
discover the elements of success, and although subject
to many hindrances, the influx of settlers convinced
him that his plan was right and would withstand all
the opposition brought against it.

While thus contemplating the development of his
enterprise, a cloud, darker and more portentous than
any before, showed itself; and from a direction not
altogether unexpected by the chief proprietor or those



63

who had accompanied him across the sea. The
coming of a ship into the Delaware River, in 167'5,
was not an event to pass nnnoticed by the Commander
at New Castle, who, with the Jnstices, represented
Governor Andross and his council, appointed hy the
Duke of York, under his second patent from tlie
King. The instructions to the Commander were to
keep strict watch over the interests of His Royal
Highness on both sides of the river, and if anything
should occur, to report at once to the authorities at
New York. The ship in question proved to be the
Griffin, anchored at Fort Elseborg, with English
emigrants from London under the leadership of John
Fenwick, who held the title to part of the territory
on the eastern shore, with the rio-lit of ^-overnment
derived through John Lord Berkley and the Duke
of York from the King. Further inquiry developed
the fact that these people proposed to occupy the
land on the eastern side of the river, and establish
a government for themselves under the right before-
named. This being properly ])rought to their knowl-
edge, a court was convened in the fort at New Castle,
and after due deliberation it was decided to forward,
by express, the necessary information to the authorities
at New York, and await orders therefrom. The ex-
press was no doubt a swift-footed Indian, selectecl tor
the [)urpose, who forded tlie river at the falls
(Trenton), and continued l)y land through the forest
to Communipaw; thence by water to the fort at New
Amsterdam, where the message was delivered to liis
excellency (iovernor Andross. The information wns^
received ])ecember oth, H\7~), and somewhat stirred
the bile of the new executive, who held his com-
mission direct and fresh from the Duke of York, ami



64

following the spirit and letter of his instructions,
could not recognize any equal, or suj^erior authority
within the limits of his jurisdiction. The Governor
consulted his council, and an order a\ as returned that
John Fenwick and his followers be not recognized as
having any rights, but be allowed to remain and
occupy suitable portions of land under this government.
The same express carried the reply, which the
Commander at New Castle soon forwarded to John
Fenwick, and the adventurers and emigrants who
were with him; intimating very strongly that they
were regarded as intruders and enemies. That the
title to the soil of New Jersey and the right of
government as well, which was claimed to have
passed by the grant from the Duke to Carterett and
Berkley, and under which John Fenwick held, was
by the Dutch conquest rendered inoperative and void ;
that the second patent of the King to the Duke
restored the original elements of title and government
as by him held in the first patent, and that like
grants must come from His Royal Highness, as in
the former case, to make any rights good on the
eastern shore of the Delaware River; that the
government, as by Governor Andross and his council
administered, was the only legitimate one within the
boundaries given in his commission, and that he
should expect all persons living therein, to submit to
the laws, or suffer the penalty of transgressing them.
To all this the chief proprietor, as the owner of
the territory, made a dignified response, showing
whence he derived his title both to soil and govern-
ment, which he regarded as sufficient and by which
lie determined to stand or fall. He insisted that his
right to establish methods of government and the



65

enactment and cnt'orcenient of laws, emanated from
the same fountain as that of Governor Andross; had
the advantage of })riority in date, and needed no
confirmation or endorsement by Governor Andross as
the representative of the Duke of York. That these
prerogatives had been before exercised and not ques-
tioned by the CroAvn, and, therefore, had nothing to
concede or relinquish touching the demands made by
the government at New Amsterdam.

Major Fenwick, as he was styled by Captain
Edmund Cantwell, the Commander at New Castle,
was frequently invited to make a visit to that place,
but as uniformly declined, perhaps for political reasons,
which the sequel seems to prove.

Neither threats nor persuasions accomplished any-
thing lil^e a recognition of the New York authorities,
which information being forwarded and there held
under advisement, a warrant was issued September
2oth, 1(370, summoning John Fenwick to aj)pear before
the Governor at New York and answer the many
charges made against him. This paper, in the shajjc
of a special warrant, and directed to Edmund Cant-
well, Sheriff, who served the same in person with
due formality, wrought no change in the asj)ect of
affairs, nor obtained the consent of Fenwick to comply
with its demands. Fntiii a judicial .standpoint this
was ('(intempt, and tlie per.son guilty must be made
to feel the })Ower of the law and pui-ge himself
thereof. Tliere was but one course to j)ursue if
Governor .\ii(h*oss would j)re.'^erv(' his dignity and
maintain the lionoi- of the government he then and
there repre.^ented.

November iMth, 1('»7, "on tlie news of Fenwick's
actings in New Jersey, granting pntcnts. exercising



66

other proprietory rights, and refusing to obey the
Governor's special warrant," it was "Resolved, that
he be sent for, and if necessary, that force be used
for seizing and sending him to New York," &c.

The tenor and purpose of this paper was not to
be misunderstood, and upon the receipt of it at
New Castle, by Captain John Collier, who succeeded
Captain Cantwell as Commander of the post, Sep-
tember 23d, 167G, he addressed a note to the
Governor of Fenwick Colony, stating that his orders
were peremptory, and requested him to come to
the fort. He replied by a refusal, couched in
respectful but decided terms. Having no desire to
place the stigma of an arrest upon Fenwick, he went,
accompanied by others, to his residence and renewed
his request in person. The Major, at this visit, would
not suffer any in the house except Captain Collier,
and after he went out would not admit him again;
but double-bolted the doors and sj^oke to him through
a small scuttle hole in the end of the dwelling;
Captain Collier, the meanwhile, seeking to convince
him that he wished to avoid the necessity of executing
the writ. This degree of forbearance was not
appreciated, and the Commander returned to the fort
and obtained the advice of the Justices in the
premises.

To compromise the matter further would entail
u})on them the censure of the Governor; hence they
determined to proceed at once, and appointed Lieu-
tenant De Haes to take command of a squad of two
under sheriffs and twelve soldiers for the purpose in
hand. His powers were discretionary, even to extreme
measures, to secure the body of the offender and
require his response to the Governor upon the



G7

return of the warrant. On the i'iyllynge's trustees, and which were at
this time the great cause of offence. These principles
were well understood and ably discussed by Fen wick,
and l)efore an unprejudiced court would have been
successful, lie was familiar with their lustory from
the beginning, and knew what was intended by the
Crown wjion the patents were created; that no restric-



70

tion existed, either expressed or implied, save that no
law should be made inconsistent with the laws of
Great Britain.

The Governor charged the jury l)oth upon the law
and facts ; taking much pains to enforce his own
theory, and directed them to return a verdict for the
King, which was accordingly done.

After private consultation of the court, the verdict
of the jury Avas approved, and the defendant sentenced
to pay a fine of forty pounds and costs; also to give
security in five hundred pounds to be of good
behavior and not act in any public capacity until
authorized ; and to remain in custody until these
requirements were satisfied. A right to appeal was
granted him if five hundred pounds were pledged that
the appeal should l)e prosecuted.

The fine, and conditional release, he refused to j)ay
or comply with; and remained in the fort under
military surveillance, with about the same liberties he
had before been privileged. He refused to ac-
knowledge the authority of Governor Andross in any
manner, or to make any promise that should control
his future conduct, touching his interests in New
Jersey.

August 7th, 1()77, the commissioners sent out by
the trustees of Byllynge and the London and York-
shire owners, arrived at New York in the ship Kent,
Gregory Marlow, master, bringing with them copies
of the King's patent to the Duke, and all subsequent
grants made of New Jersey, which wevo laid before
Governor Andross and his council. This was a
fortunate circumstance for John Fenwick (who was
still a prisoner), as these documents verified all that
he had sought to establish on his trial. The com-



missioners re(|ue.sted him lo recognize and acknowledge
them, ])ut the Governor could not see his Avay clear
so to do. The second patent of the Duke, coupled
with his instructions, jirevented him from granting
what was evidently their right, and which he seemed
to realize. After much controversy it was agreed, by
way of compromise, that the commissioners, or part
of them, should receive authority from Governor
Andross to act as magistrates, in the Duke's name,
on the eastern shore of the river; when they fixed
upon a place "to settle down by." At the same time
John Fenwick was released on his parole to return
to the fort at New York, October Gth, following.
He went on board the ship with the commissioners
and returned home, the ship arriving at New Castle,
August IGtli, where the most of the people landed.
In the chief i)roprietor of the Balem tenth, these
strangers, doubtless found a valuable assistant, whose
experience and advice saved them much annoyance
and trouble.

Faithful to his promise, he presented himself to
Governor Andross at New York, on the day named,
who expressed his surprise thereat, and immediately
made an order foi- him to be discharged, "and to
go about his lawful occasions."

At home once more, he entered upon the duties of
his office a.s Governor, attended to the laying out and
sale of land, participated with much zeal in the
schemes of his neighl)ors for the advance of his antl
their interests in the colony, by which many others
were induced to join then), and being satisfied with
the methods adopted, were content to remain. Every-
thing aj)})ears to have gone well with the Salem
folk until April oOth, 1078, when an election was



72

held for the officers, annually chosen, and the places
of Surveyor General, Secretary, and Register, were
filled by appointment. Captain Edward Cant well,
Justice Foppe Outhout, and others from New^ Castle,
were present and made note of the manner in which
the machinery of the government was kept in
motion. The Governor ordered several papers to
be read, relating to his authority in the premises,
and then had proclamation made, in His Majesty's
name, that all persons on the east side of the
river should render due submission and respect
to himself as chief and others as subordinate officers
of the colony. Captain Cantwell suggested that there
were many Swedes and Finns present w^ho did not
understand what was being said and done; as the
English language was strange to them. Fenwick's
reply was, that they knew enough to accept his deeds
for large tracts of land, and should therefore recognize
his authority. The Captain also hinted that a small
tax had been levied by the collector at New^ Castle,
on the people of the eastern shore; but the Governor
advised them not to pay the same, and would save
them harmless if they so refused. It is apparent that
Captain Cantwell, Justice Outhout and others, of the
dignitaries of New" Castle, had been invited by
Governor Fen wick to make a visit to New Salem,
on the day of election, and observe the pure and
sim])le manner in which the people selected their
rulers. A much better feelins; existed between the
rival authorities than at the first, and there is
evidence that the Commander at the fort and the
Governor of Fen wick Colony became warm friends,
which led to nmcli leniency on the jmrt of the
former toward the latter, when the powder of Governor



73

Andross was to be exercised a


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Online LibraryJohn ClementA sketch of the life & character of John Fenwick (Volume 2) → online text (page 5 of 7)