KING CHARLES the Second, being by Discovery and the actual Possession of the Dutch by his Licence, intitled to the Lands now called NEW-YORK and NEW-JERSEY did, by his Letters Patent dated the 12th Day of March, 1663-4, grant and convey to his Brother JAMES Duke of York, all the Lands within the Colonies of New-York and New-Iersey, with the Powers of Government.

JAMES Duke of York, on the 2d Day of April, 1664, commissioned Richard Nicholls to be Governor of his said Territories in America.

Richard Nicholls, on the 20th Day of August, 1664, arrived in America, and on the 27th of the same Month, had the Possession of said Colonies of New-York and New-Iersey, delivered him by the Dutch.

It is said, that Governor Nicholls, soon after his Arrival in his said Government, issued a Proclamation, containing the Conditions for new Plantations in the Territories of his Royal Highness the Duke of York, among which are these following, viz.

‘The Purchases are to be made from the Indian Sa­chems, and to be recorded before the Governor.’

‘The Purchasers are not to pay for their Liberty of purchasing, to the Governor.’

‘The Purchasers are to set out a Town, and inhabit together.’

‘No Purchaser shall at any Time, contract for himself with any Sachem, without Consent of his Associates, or Special Warrant from the Governor.’

[Page 4] ‘All Lands thus purchased, shall remain to the Pur­chasers and their Heirs, as free Lands, to dispose of as they please.’

‘The Lands which I intend shall be first planted, are those upon the West side of Hudson's River, at or ad­joining to Esopus; but if any Number of Men, sufficient for two, three, or more Towns, shall desire to plant upon any other Lands, they shall have all due Encouragement proportionable to their Quality and Undertaking.’

Note. No Proclamation has ever appeared; and all that has appeared, are Papers without any Date, said to be Copies.

JAMES Duke of York, by his Letters Patent, dated the 24th Day of Iune, 1664, (about two Months before Governor Nicholls arrived in America) granted and con­veyed the now Province of New-Iersey, to Iohn Lord Berkeley, and Sir George Carteres, in Fee.

The said Lord Berkeley and Sir George Carteret, on the 10th Day of February, Recorded Lib. 3. p. 27. 1664-5, appointed Philip Carteret to be Governor of New-Iersey, Recorded Lib. 3. p. 28. and on the same Day, by a separate Instrument under their Hands and Seals, gave Power to the said Philip Carteret, with Ad­vice of the major Part of his Council, to grant Lands to all such Persons as should by their Concessions be in­titled thereto; but expressly therein declare, that they grant no Power but according to the Concessions.

The said Lord Berkeley and Sir George Carteret, on the same 10th Day of February, Recorded Lib. 3. from Pages 66 to 74. 1664-5, did, by another Instrument, under their Hands and Seals, grant their Concessions, establishing thereby the Constitution of the said Pro­vince, to be strictly observed by all inhabiting them; which Concessions direct and order, that the Form of Government should be by a Governor, Council and an Assembly; and fix the Powers of each and of all the [Page 5] Officers of Government; and declare, that a Title to Lands was to be obtained by the Settlers, by having a Survey made by the Surveyor General or his Deputy, duly recorded with the Register, and a Grant or Patent, under the Seal of the Province, signed by the Governor and the major Part of the Council, to the Person for whom said Survey was made; and that by no other Method a Title to Lands could be obtained by the In­habitants of New-Iersey.

In or before the Month of August, 1665, Governor Carteret arrived in New-Iersey, Lib. 1. p. [...]. and execu­ted the Powers of Government agreeable to his Commission and said Concessions. Lib. 3. p. 1.

In the Year 1665, This appears from Governor Carteret's Let­ter and Memo­randum Book. Mr. Treat and others, from Connecticut, after treating with Go­vernor Carteret about settling in New-Iersey, after examining the Concessions, (which they saw and considered) and after having some religious and other Privileges (not contained in the Concessions) granted them, came into New-Iersey with an Intent of settling on the River Delaware, near Bur­lington; but on viewing the Country, they did not like it.

On their Return from Delaware, they called on Governor Carteret at Elizabeth-Town; who persuaded them to settle on the Lands now called NEWARK, and wrote a Letter to the Indian Sachem to sell the same to Captain Treat, promising the Indian Sachem to satisfy him for the same.

In Consequence whereof the said Treat and Company purchased of the Indians all the Lands within the Town of Newark; Samuel Edsell and Joseph Harrison's Af­fidavit, and Indian Deed to Newark, in 1667. and afterwards in 1667, took a Bill of Sale from the Indians for those Lands, paid the Consideration Sum to the Indians, and began in that Year to settle the Town of NEWARK.

[Page 6] The said first Settlers of NEWARK, This appears from a List of the several Pa­tents taken from the pub­lick Records of New-Jersey. soon after their said Indian Purchase, and before the Year 1700, applied for and obtained One Hundred and ten Patents from the Proprietor's Governors and Council of New-Iersey, for 12439 Acres of Land, lying within the Bounds of said Indian Purchase; 8134 Acres thereof, at the annual Rent of one Half-Penny per Acre, agreeable to the said Concessions of the Lords Proprietors, amounting in the whole to 16l. 18s. 11d. a Year; and the remaining 4305 Acres, at the yearly Rent of six Pence per hundred Acres, according to an Agreement entered into between the Town of Newark, and the General Proprietors of New-Iersey, herein after mentioned.

In 1676, New-Iersey was divided into East and West-Iersey; and East-Iersey was assigned for the Part and Share of Sir George Carteret; and by sundry mesne Con­veyances from him, the Eastern Division, whereof New­ark is a Part, was in and about 1681, vested in those called the twenty-four General Proprietors of East New-Iersey; whose Heirs and Assigns, and the Patentees of Lord Berkeley and Sir George Carteret, claim the same to this Day.

The first Settlers of Newark not having in and before the Year 1692, obtained Patents for more than about 8000 Acres of Land, within their said Indian Purchase, at one Half-Penny per Acre Quit-rent, but having paid the Consideration Sum to the Indians for the whole Tract (containing upwards of 40000 Acres) and yet being unwilling to take Patents for all the remaining Lands within their Bounds on the Terms of granting Patents at one Half-Penny per Acre fixed by said Concessions, did by their Committee, Iohn Curtice, and others, chosen for that Purpose, on the 28th Day of February, 1692, meet and propose to the General Proprietors of East New-Iersey, [Page 7] an amicable and friendly Accommodation relating to the Lands held by the Inhabitants of Newark under the Proprietors, and those which they possessed by Pur­chase from the Indians; and after a long Conference had thereon, it was proposed, that the Inhabitants of Newark (such of them as yet had not) should take out Patents for the Lands they possessed, As appears on Record, in Lib. A. B. p. 118. and pay their Arrears of Quit-Rents; and that all the old Settlers should have one hundred Acres of Land, each at six Pence per Annum Quit-Rent: Which Proposals were agreed to be referred by said Committee, to said Town of Newark, for their Approbation.

Which Proposals were afterwards mutually agreed to, and carried into Execution by both Parties, Lib. A. B. 12 [...]. by the general Proprietors ratifying the same, and by the first Settlers of Newark, signifying their Consent thereto, and obtaining in Virtue of said Agree­ment, upwards of Forty Patents from the General Pro­prietors for 4305 Acres of Land, at the annual Quit-rent of Six Pence per Hundred Acres; which several Patents are recorded in Lib. E. and F.

Besides said several Patents granted in Virtue of said Agreement, about five Hundred Acres of Land, have also, since the granting of Letters Patent in New-Iersey ceased, been surveyed and returned to the Heirs of the first Settlers of Newark, on said Agreement, who hold the same to this Day. And it is conceived, that there are not more than two of the old Settlers of Newark, but what have, either by themselves, their Heirs or Assigns, taken out Patents, or had Surveys granted them, for said Hundred Acres agreed upon, for the consideration Sum paid the Indians for the Lands they held by Purchase within the Town of Newark.

It is alledged by some of the present Inhabitants of Newark, that Governor Carteret granted a Licence to [Page 8] the first Purchasers of Newark, to make their Purchase of the Indians; which is founded on the Affidavits of Ioseph Harrison, Esq deceased, taken in 1742, and of Ionathan Pierson, taken in 1764. Mr. Harrison swears, that he about forty Years, then last past, heard a Writing read by one Iohn Cooper, which he understood to be a Licence from Governor Carteret, as Governor, Iohn Ogden and others, of Elizabeth-Town, to purchase of the Indians, the Lands now called Newark; does not re­member that there were any particular Boundaries men­tioned in said Licence, but believes it was for the Lands purchased by the People of Newark as aforesaid. Ionathan Pierson swears, that when he was a Boy, his Father Theophilus Pierson, came Home from attending a Proxy Meeting of the Proprietors, held at Elizabeth-Town or Perth-Amboy, and said, that he had lost the Newark Licence, and believed it was taken out of his Pocket; but does not remember ever to have heard his Father declare the Contents thereof.

In the Year 1666, and afterwards, several Licences were granted by Governor Carteret, to make Purchases of the Indians, and recorded in the publick Records at Perth-Amboy, all containing a Condition that the Persons to whom the Licences were granted should truly perform all such Acts and Things as are contained in the Lords Proprietors Concessions; one of which dated the Twenty-fourth Day of Iune, 1666, is recorded in Lib. 1. Page 9. and is in the Words following, to wit.

‘Whereas Mr. Isaac Ienna, alias La Pierre, hath requested my Leave, for the purchasing a certain Tract of Land from the Indians, on the East Side of Delaware River, within this Government, with an Intent to inhabit and plant the same: These are therefore to permit and suffer the said Isaac, to purchase the said Tract of Land from the Indians, upon Condition, that he truly perform all such Acts and Things as are con­tained [Page 9] in the Lords Proprietors [...]sions, and to be conformable and obedient to the Laws of this Province. Given under my Hand, and the Seal of the Province, the 24th Day of Iune, 1666.’

One other Licence in like Manner, granted to Eli [...] Wardel, and his Associates, dated November the 4th, 1666, recorded in Lib. 3. fol. 10.

One other in like Manner, granted to Peter Abriske, dated November 15th, 1666, recorded in Lib. 1. fol. 6. and several other like Licences to five different Persons, from the Year 1668, to 1671, recorded in said Lib. 1. from p. 21 to 33.

After the Surrender of the Government of New-Iersey, by the General Proprietors to the Crown of England, in the Year 1702, Letters Patent ceased to be granted for Land in East New-Iersey, and the Constitution instead thereof was establish'd, that the General Proprietors, or their Assigns, should have Warrants of Survey granted them by the Council of Proprietors, for such Shares of Land as they were entitled to, the Surveyor General making a Survey and Return thereof, which being entered on Record, gave a Title to hold in Severalty.

Agreeable to said last Constitution, several Thousand Acres of Land were purchased, surveyed, and taken up on the Proprietors Title, within the Bounds of Newark-Purchase, by the Inhabitants of Newark, and others; which are now possessed by the People of Newark, under the Proprietors Title only; as the Indian Purchase Right had long before been given up to the General Proprietors of New-Iersey, by the first Settlers of Newark, as aforesaid. And it is conceived, that there is not the Quantity of 500 Acres of Land, within the Bounds of Newark Township, at this Day, but what are now in the actual Possession of the Inhabitants of Newark, under the Title derived from the General Proprietors.

[Page 10] That since the said Agreement made between the first Settlers of Newark, and the General Proprietors of East New-Iersey, in 1694, there has been no Division made of the unappropriated Lands within the Bounds of said Indian Purchase, among the Heirs and Assigns of the first Settlers of Newark, according to their antient respective Claims; but all the Inhabitants were at Liberty to purchase a Proprietor's Title, and take up such Parts of the unappropriated Lands in the Township of Newark, as they from Time to Time saw fit: Some took up several hundred Acres, some a less Quantity, and others none; wherewith, and with said Agreement, made between the General Proprietors and the first Purchasers of Newark, there has been a general Acquiescence, till very lately a few of the Descendants (the third Generation) of the first Settlers of Newark, have set up a Claim under the Newark Indian Purchase.

Quere. Have the present Inhabitants of Newark, any Right either in Law or Equity, to claim Title to the Lands purchased by their Ancestors, of the Indians, in 1667, in Virtue of said Indian Purchase?

To which I answer,

First, That altho' Governor Nicholis's Proclamation should be admitted genuine, (which is disputed; as the Title to Lands within either New-York or New-Jersey hath never from the first Settlement thereof, been acquired by Indian Purchases, agreeable to said Proclamation, but by Letters Patent under the publick Seal of the Colony, or Grants from the Crown of England) and should it also be admitted, that the Proclamation did issue soon after Governor Nicholls's Arrival in New-York; yet the Descen­dants of the first Purchasers of Newark, can't have the least Pretence of claiming Title under said Proclamation, for the following Reasons.

1. Because the Duke of York had, near two Months before Governor Nicholls's said Arrival, sold New-Iersey [Page 11] to Lord Berkeley and Sir George Carteret; therefore neither the Duke nor his Governor, could have any Right to declare and fix the Terms of gaining a Title to Lands in New-Iersey.

2. Because the Newark Indian Purchase was made after Lord Berkeley and Sir George Carteret had made and published in New-Iersey, certain Concessions as and for the Constitution of the Province.

3. Because Philip Carteret, the Governor appointed by Lord Berkeley and Sir George Carteret, arrived in New-Iersey, in 1665, and executed the Powers of Government there, one Year before the Newark Purchase was made.

4. Because the first Purchasers of Newark were, before they made their Purchase, acquainted with said Con­cessions, and purchased under the Terms and Conditions thereof.

Wherefore it is clear, that the Proclamation of Governor Nicholis, if genuine, can't avail the Newark Purchasers, or their Heirs.

Secondly, With Respect to the formal Licence, said to be granted by Governor Carteret, to the first Settlers of Newark, to purchase of the Indians, I am induced to believe he never granted any, and that for the following Reasons.

1. Because Governor Carteret in his Letter to the Indian Sachem, sent by Mr. Treat, when he went to make the Purchase, writes, that he had sent Mr. Treat to finish the Purchase of the Lands he had before treated with him about; and that he the Governor, would satisfy the Indians for the same Lands; which he could not with Propriety have done, had Mr. Treat received a formal Licence for said Purchase.

2. Because said Indian Purchase Deed, does not recite a Licence being given, but that the Purchase was made by the Advice and Consent of Governor Carteret.

[Page 12] 3. Because there is no Licence to make said Purchase of the Indians, entered on the publick Records of New-Iersey; which was the Practice before, and ever since said Purchase.

4. Because there is great Reason to believe, that the Paper which Mr. Harrison and Mr. Pierson mention, must have been the Letter wrote to said Indian Sachem, as it might with some Propriety be called a Licence.

5. Because it is highly improbable, that Governor Carteret did grant any formal Licence or other Writing, or make any Agreement with the Newark Purchasers; contrary to the Concessions of the Lords Proprietors, which he by his Commission and Instructions was bound to obey and observe: Had he even acted otherwise with respect to Newark Purchase, the same would have been void and of none Effect; as thereby he would have exceeded his Commission, and the Powers granted him by the Lords Proprietors his Constituents.

If a written Licence was granted by Governor Car­teret, to make Newark Indian Purchase, the same must be presumed to have been in the same, or like Form, with all the other Licences on Record, granted before, and for some Years after the Newark Indian Purchase was made, viz. with Condition of complying with the Concessions; as thereby Governor Carteret would not only be perfor­ming the Duty of his Office, and act consistent with his Treatment of others in the like Cases, but also would be acting in Conformity to the Treaty between him and Newark Purchasers, before the Indian Purchase was made.

From whence I think it evident, that the first Settlers of Newark had no legal Title to the Lands within the Bounds of the Town, in Virtue of their Indian Purchase: but all that they acquired thereby was the Equity of a Preference to all others, of having the same Lands ap­propriated, surveyed, and patented to them, in a reason­able [Page 13] Time after the Purchase, agreeable to the Constitu­tion of the Province; which Equity they had, and en­joyed uninterrupted, until the said Agreement in 1694, made between the first Settlers of Newark, and the General Proprietors of New-Iersey, was carried into Execution: And since said amicable Agreement for the Lands held by Indian Purchase, expressly fixes and limits the Quantity of One Hundred Acres for each old Settler of Newark to have, of the unappropriated Land, within their Indian Purchase; and all the said first Settlers, except two, did actually take out Patents and had Surveys for the same, in Pursuance of said Agreement; I am clearly of Opinion, that all future Pretence of claiming any Title, either in Law or Equity, to any Part of the Lands within the Bounds of Newark, in Virtue of said Indian Purchase, must be idle, and without the least Foundation to support it, unless it be an Equity, which I conceive still due to the Heirs of the two old Settlers, who have not had patented or surveyed to them, the One Hundred Acres agreed upon for each old Settler to have.

Those who now set up said Indian Purchase Claim, in Opposition to the Proprietors Title, they have to the Lands they possess, wou'd do well to consider these fol­lowing Matters.

1. That the first Settlers of Newark, taking out soon after their first Settlement, a great Number of Patents, agreeable to the Constitution of New-Iersey, is an Evi­dence of their Submission to hold their Lands under the General Proprietors.

2. That the Agreement in 1694, carried into Execu­tion, is a further Evidence of said Submission, and also of the first Settlers receiving ample Satisfaction for what they paid the Indians for the Lands by them purchased.

3. That several of the Inhabitants of Newark, pur­chasing Proprietary Rights, (after said Agreement, made in 1694, was carried into Execution) and laying the [Page 14] same on the then unappropriated Lands, within the Bounds of Newark Purchase, without any Regard to the Share they held within said Purchase; is a further Evi­dence, that the Inhabitants of Newark did not pretend any Title under their Indian Purchase, but under the General Proprietors altogether.

4. That the Pretence now set up by some of the In­habitants of Newark, of claiming under the Newark In­dian Purchase, is a Violation of the Constitution of New-Iersey, wherewith the first Purchasers were acquainted before they made their Purchase, and contrary to the many solemn Acts and Agreements of their Ancestors, which always have been countenanced in Courts of Law and Equity.

5. That if the Proprietors Title to the Lands in New­ark should be held valid and good, the general Peace of the Town would be preserved, and the many antient Possessions secured to the Possessors; but should the In­dian Purchase Claim be the legal Title to hold the Lands within the Bounds of Newark by, the many Thousands of Acres surveyed and taken up after the Year 1694, will remain without Title to the Possessors, and be subject to a new Division among the Heirs and Assigns of the said first Purchasers.

Which several Matters being duly considered by the Inhabitants of NEWARK, I am inclined to believe, that all those who have a due Regard to the general Peace and real Interest of the Town, and would yield the proper Respect due to the Memory of the Transactions of their deceased Forefathers, will join me, that the Proprietors Title by Patent and Surveys, is the only just and equitable Title to claim under within the Town of NEWARK.