USA > New Jersey > Essex County > Newark > An history of the Old Burying Ground as contained in the case of the Attorney-General against the city of Newark, 1888 > Part 1
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¥c 974.902 51ne 1339485
AVI. L.
GENEALOGY COLLECTION
ALLEN COUNTY PUBLIC LIBRARY 3 1833 02255 9865
Digitized by the Internet Archive in 2016
https://archive.org/details/historyofoldbury00newj
A HISTORY C
OF THE
OLD BURYING GROUND
AS CONTAINED IN THE CASE OF
THE ATTORNEY - GENERAL
11
AGAINST
THE CITY OF NEWARK 1 1888.
THE PUBLIC LIBRARY
NEWARK, N. J .: WARD & TICHENOR, PRINTERS, 832 & 834 BROAD STREET. 1888.
1339485
In Chancery of New Jersey.
Between
JOHN P. STOCKTON, ATTORNEY-GENERAL, AND OTHERS,
Complainants,
On Bill, &c.
and THE MAYOR AND COMMON COUNCIL OF THE CITY OF NEWARK,
Defendants.
To the Honorable THEODORE RUNYON, Chancellor of the State of New Jersey :
Informing, showeth unto you Honor, John P. Stockton, Attorney-General of the State of New Jersey, on the information of Henry Congar, Samuel H. Pennington, Jabez P. Pennington, Ira M. Harrison, Henry N. Park- hurst, William R. Alling, Jeremiah D. Poinier, Bruen H. Camp, Alexander Johnson, Augustus Dusenberry, John P. Dusenberry, Horace Alling, James Bruen, Frank Tichenor, Ernest E. Coe, John C. Mandeville, citizens of the city of Newark, in the county of Essex, and heirs and descendants of the old settlers of the town of New- ark, now said city, who act herein for the benefit of all such citizens, heirs and descendants as may be made parties and contribute to the expense hereof, and for the protection of the charitable use hereafter mentioned ; and also humbly complaining, show, the said individuals named as such citizens, heirs and descendants, who file this their bill for the benefit aforesaid, and in order to the protection and enforcement aforesaid,
I. That shortly after the settlement of said town, on the tenth day of December, 1696, the Proprietors of the Province of East New Jersey, in pursuance of the prem-
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ises of their concessions to actual settlers thereof, there- tofore made by them, did by their deed of that date, recorded in the Proprietors' office at Perth Amboy, in Book F of Proprietary Records, on pages 166 to 168, and to which reference is hereby prayed, grant to John Curtis, John Treat, Theophilus Pierson and Robert Young, of said town, with other lands therein described, a certain tract of land in the then town, now city of Newark, therein described as follows, to wit :
" Secondly, all that small tract therein allotted for the burying place, taking in the pond and meeting-house, being seven chains in length and four in width, bounded west by John Treat, south by John Johnston, north and east by highways."
Which tract by its boundaries is somewhat larger than by above measurements, and which grant was made to said grantees in said deed and their heirs, to the only proper use, benefit and behoof of the old settlers of the town of Newark, their heirs and assigns forever in com- mon, and granted to be and remain for said use therein expressed, and to be appropriated to no other use or uses whatever ; all of which, by reference to said deed, will appear.
II. That part of said premises occupied by the pond and meeting-house, now constitutes land occupied by buildings on Broad and Market streets in said city, being the highways referred to in said grant, but that the bulk thereof, bounded by the rear of said buildings and the lots whereon they stand, and by Halsey street, then and thereafter was used for and devoted to use for interment and a burial place of the people of said town, otherwise known as the settlers thereof, being the old settlers, their heirs and assigns, and has been reserved and kept for that purpose and been known as the Old Burying Ground of the town of Newark; and therein have been buried from time to time thence hitherto deceased persons,
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people of said town as aforesaid, old settlers and their heirs and descendants, and there their monuments and memorial stones have been erected and placed, and many of them now remain.
Said use was and is a charitable use, within and accord- ing to the laws of this State.
III. That afterwards and about the 15th day of Feb- ruary, 1804, an act of the legislature of New Jersey was passed for the purpose of vesting the legal estate held by said trustees or their heirs, but upon the same trust and charitable use contained in said original deed, and it is hereby charged and shown that the said trust and char- itable use were thereby confirmed and established, and all the obligations incumbent by said deed upon the trus- tees therein named were laid upon the inhabitants of the township of Newark, and were by said township accepted and undertaken, which said statute (to which reference is prayed,) was to the effect and in the words following, to wit :
LAWS OF 1804. (Page 255.)
AN ACT to vest in the Inhabitants of the Township of Newark, in the county of Essex, a certain estate now in the hands of Trustees.
Whereas, the inhabitants, first settlers of the town of Newark, in the county of Essex, on their first settlement after purchasing all the lands lying in the bounds of said town of the native Indians, proceeded to parcel out the same among themselves and such settlers as thought proper at various times to settle in said town, according to the rules and regulations established by the first settlers respecting their admission, at the same time reserving certain portions of land in various parts of said town for public purposes, and doubts having arisen in respect to the validity of the Indian title, it was afterwards thought advisable by the inhabitants of the said town of
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Newark to take a grant from the proprietors of East New Jersey for the confirmation of their rights to the said pub- lic land, and as the inhabitants of the said town were not incorporated by law, and were incapable of taking a legal estate, it was thought advisable to take the said grant in the name of certain trustees for the use of the said in- habitants, which grant was accordingly taken on the tenth day of December, in the year of our Lord one thonsand six hundred and ninety-six, in the name of John Curtis, John Treat, Theophilus Pierson and Robert Young, to have and to hold to them, their heirs and assigns forever, to the only proper use, benefit and behoof of the old settlers, the town of Newark aforesaid, their heirs and assigns forever, in common granted to be and remain to and for the several uses therein particularly expressed, and to be appropriated to no other use or uses whatsoever ; and, whereas, the original trustees are all dead, and the heir of the survivor not known to be a resident in the said town of Newark, nor even in the said county of Essex ; and, whereas, through the ignorance of those infant times, the use created in the said grant, although really meant and intended for the benefit of the inhabitants of the said town of Newark and their successors, yet it being so inartificially expressed as to render it difficult for the present inhabitants of the town of Newark, as incorporated by law, to assert their rights to the said premises, by means of which the lands con- tained in the said grant and originally reserved by the first settlers for public purposes are exposed to encroach- ments and other injuries, without a competent remedy either in law or equity to prevent and punish the same ; for remedy whereof,
SEC. I. BE IT ENACTED by the Council and General Assembly of this State, and it is hereby enacted by the authority of the same, That the trust estate vested in John Curtis, John Treat, Theophilus Pierson and Robert
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Young, their heirs and assigns forever, by a certain deed or patent granted by the proprietors of East New Jersey, bearing date the tenth day of December, in the year of our Lord one thousand six hundred and ninety-six, to them the said John Curtis, John Treat, Theophilus Pier- son and Robert Young, their heirs and assigns forever, for the only proper use, benefit and behoof of the old settlers of the town of Newark aforesaid, their heirs and assigns forever, shall henceforth cease and be void.
2. And be it enacted, That henceforth the estate so as aforesaid vested in John Curtis, John Treat, Theophilus Pierson and Robert Young, their heirs and assigns for- ever, be vested in the inhabitants of the township of Newark, in the county of Essex, as incorporated by law, and their successors forever, and they are hereby vested with the legal title to the same as fully and absolutely as though they had been originally named in the said grant, in the place of the said John Curtis, John Treat, Theoph- ilus Pierson and Robert Young, their heirs and assigns ; saving, nevertheless, the right or rights of any bona fide purchaser or purchasers for valuable consideration, with- out notice of the said trust of the said John Curtis, John Treat, Theophilus Pierson and Robert Young, their heirs and assigns.
Provided also, that nothing herein contained shall in any way extend to or affect the parsonage lands con- tained and particularly described and expressed in said grant ; and also such parts of the burying ground men- tioned and described in said grant as have either been leased or sold by the trustees of the First Presbyterian Church in Newark, previous to the first day of January last ; and also the ground on which the market in the said town of Newark now standeth.
3. And be it enacted, That the estate hereby vested in the inhabitants of the township of Newark as aforesaid shall be appropriated and forever remain to and for the
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several uses in the said original patent aforesaid expressed, and for no other use or uses whatsoever.
Passed at Trenton, February 15, 1804.
The inhabitants of said township of Newark were after. wards, to wit, about the year 1836, incorporated by said legislature, under the name of The Mayor and Common Council of the City of Newark, and thereupon by force of the laws of this State, the said Mayor and Common Council of the City of Newark became subject to all the responsi- bilities theretofore belonging to the inhabitants of the township aforesaid, and succeeded to the duties of said trustees aforesaid.
IV. And the said Attorney-General informing shows, charges and insists, and said complainants show and charge, that while the said township of Newark and its successors, The Mayor and Common Council of the City of Newark, thereby obtained the legal title to the said lands constituting the said Old Burying Ground, and likewise to the dead bodies of those buried therein, and their grave-stones and memorials as therein placed, that by the laws as well as by the universal feeling of man- kind, there was imposed upon them a duty to be dis- charged towards the dead-a duty and a right to protect the same from violation, removal or desecration. That while holding said legal title and having charge of the same they cannot be considered the owner in any sense whatever, but hold it as a sacred trust for the benefit of all who from family, inheritance or fellowship in the same community have an interest in it, and that a court of equity will regulate said ground as such, and control the custody thereof if improperly managed ; that the right of the said the Mayor and Common Council of the City of Newark over the same and over the bodies of the worthies and old settlers of Newark and others therein buried, is not to make of the same an article of traffic or
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profit, but that it is a sacred right to preserve its custody and secure the undisturbed repose of the persons there interred, according to decency and the universal feeling of mankind, and that in case of the breach of said duty, equity will give and only can give a full and complete remedy, and that this Court has full and complete juris- diction of the matter, and will protect said burying ground and the remains and memorials of those interred within it from desecration and from removal, and compel the maintenance of said burial place according to the original trust.
That the relators above named are heirs by descent of said old settlers named in said original deed of trust ; their ancestors, old settlers, as aforesaid, lie buried in said burying ground; they are likewise citizens and inhabitants of said city of Newark and taxpayers therein, interested in the proper distribution and use of the revenues thereof ; and they submit that they are cestuis que trust under said original deed and entitled to make application to this Court for the enforcement of the trusts thereby created according to their true tenor and effect, and for preventing the abandonment of the charitable use aforesaid to which said land is thereby devoted.
And the said Attorney-General on the relation afore- said informing, and your orators the said complainants, further show that nevertheless The Mayor and Common Council of the City of Newark, disregarding their said trust and sacred duty in that behalf, have not only neg- lected to care for the said ground, and for years suffered encroachment to be made thereon, paths to be made through the same, and that the same should become a common haunt for vagrants and persons of evil habits by day and night, a disgrace to the city and a shocking grief to those whose family and friends are there buried, but also have lately resolved by resolution of their Com-
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mon Council to use said ground as a common and public market for the sale of meats and vegetables, and to let it out for hire for that purpose; and that said resolution was the execution of a purpose conceived as long ago as June last, when with that purpose in view they secretly and unjustly procured the passage of an act of this State as follows, that is to say :
"An Act to authorize the cities and other municipali- ties of this State to devote to other public use lands held for burial purposes, and to make provisions for the re- moval and protection of the remains interred therein.
"Be it enacted by the Senate and General Assembly of the State of New Jersey, That where lands held by the cities or municipalities of this State for burial pur- poses are or may be affected by any trust that they shall be devoted to that use, and in the judgment of the Com- mon Council or other governing body the public good will be served by devoting such lands to other public uses, it shall and may be lawful in every such case to use such lands for any public purpose or use to which, in the judgment of the Common Council or other governing body, they are best adapted.
" 2. And be it enacted, That in case interments have at any time been made on such lands or any part thereof, the Common Council or other governing body shall cause the remains so interred to be removed to some suitable and proper burial place, and make proper and reasonable provision therefor, and for the protection thereof, and to this end may make such reasonable appropriation of public moneys as may be necessary.
"3. And be it enacted, That this act shall take effect immediately.
"Approved June 29, 1886."
II
And the said Attorney-General informing on the rela- tion aforesaid, and the said complainants complaining, show that the said act was introduced into the legislature at an extra session thereof, and at a late day therein, when an adjournment was daily expected, and was gotten through with unusual rapidity; that the same was in reality a private, special and local act within the mean- ing of the constitution of this State; that there are no other cities or municipalities within this State which hold lands for burial purposes than the city of Newark ; that no public notice was given of the intention to apply for said act, or of the object thereof ; that the passage of said act was forbidden by the constitution of this State, because of the want of such public notice, and because said act vacated public grounds.
And the said Attorney-General informing as aforesaid, and said complainants show that in and through the premises, and especially through the said act of the said year eighteen hundred and four, and the acceptance thereof by the said township of Newark, to which the said Mayor and Common Council of said city have as aforesaid succeeded, a contract was made with the then inhabitants of said township, and a trust was thereby assumed by said township and impressed upon said prem- ises, that the same should be thereafter forever held for the use of a burial place for old settlers of Newark, their heirs and assigns, and the citizens, and for no other pur- pose whatever ; that the said act of one thousand eight hundred and eighty-six, authorized the impairing of said obligation, and the abrogation of said trust ; that it was beyond the constitutional authority of the legislature to authorize said city of Newark to abandon such trust and solemn contract, and to take and use said lands upon which it was as aforesaid imposed, for lucre and gain or otherwise than according thereto; that the bodies interred in said burying ground and the monuments,
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gravestones and like memorials of the dead there situ- ated, were respectively the property of the parties by whom they were deposited or erected, and their legal representatives ; that the legislature has no constitu- tional right to take the said property, remove it and devote it to any other use, public or private. And it is hereby submitted in behalf of and by said Attorney- General informant, and of said relators complainants, the said act of the legislature of 1886 was, and is unlawful and void, and affords no justification for any departure from the execution of their said trust on the part of said The Mayor and Common Council of the City of Newark.
And said Attorney-General in said relation as afore- said, and said complainants further show that, notwith- standing the premises, the Common Council of the city of Newark passed a resolution or ordinance which is alleged by them, notwithstanding that the same did not receive the signature or sanction of the Mayor of said city, to have become legally operative, by which the said burial ground was ordered to be appropriated and used hereafter for the use and purpose of a public market place for the accommodation of hucksters, butchers and others in the sale of vegetables, meats and the like, and that the remains of the persons therein buried should be taken thence, together with the monuments and tomb- stones erected to their memory, and should be removed to some other place to be determined upon by a com- mittee of said Council by them appointed and desig- nated ; and said The Mayor and Common Council of the City of Newark, by their servants and agents in that behalf, are now engaged or about to enter upon the work of digging up the ground of said burial place, in order to the taking therefrom the bodies there buried and carry- ing them thence in preparation for arranging said burial ground for the purpose of a market as aforesaid.
I3
All which conduct on the part of said The Mayor and Common Council of the City of Newark aforesaid is con- trary to good conscience and tends to the injury and wrong of the State and of many of the citizens thereof, and of the relators and complainants herein.
In tender consideration whereof, and to the end there- fore that said The Mayor and Common Council of said City of Newark, defendants in this suit, may answer the premises, and that it may be adjudged and decreed by this Honorable Court that the said premises were granted in the year one thousand six hundred and ninety-six, and dedicated to the charitable use of a burial place for the old settlers of said city of Newark, their heirs and assigns, inhabitants of said city, and can be lawfully used for no other purpose whatsoever, and that said act of the legislature of New Jersey, passed in eighteen hundred and eighty-six as aforesaid, is unconstitutional and void, and confers no right upon said defendants to appropriate the same to any other use or purpose; and that they should be enjoined and restrained therefrom and from removing the remains of persons buried there, their tombstones and other monuments from said burying ground to any other place of sepulture, and that they, the said defendants, may be compelled by the order and decree of this Court hereafter to maintain and keep the said burying ground in a decent and proper manner, so as to protect the remains and memorials whatsoever of the dead there interred from desecration, and as befits the purpose of said grant and dedication ; and that your Honor would grant such other relief as shall be agreeable to equity and good conscience.
May it please your Honor, the premises considered, to grant to the said the Attorney-General, informant as aforesaid, and to your orators, not only the State's writ of injunction, to be directed to the said defendants and their agents, thereby restraining and enjoining them as
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by this information and bill prayed, but also the writ of subpæna, to be to said defendants directed, commanding them to appear before your Honor in this Honorable Court, at a certain time and place therein to be named, then and there to answer the premises, and to abide by and perform such order and decree herein as to your Honor shall seem fit and agreeable to equity and good conscience.
CORTLANDT & WAYNE PARKER,
Solicitors for the complainant and relators, and of counsel for the informant, relators and complainants.
Chancery of New Jersey.
Between
JOHN P. STOCKTON, ATTORNEY-GENERAL, AND OTHERS,
Complainants,
On Bill, &c.
and
Answer.
THE MAYOR AND COMMON COUNCIL OF THE CITY OF NEWARK,
Defendants.
The answer of The Mayor and Common Council of the City of Newark, defendant, to the information or bill of John P. Stockton, Attorney-General, and others, com- plainants :
I. This defendant, for answer to the said bill, states that as to the matters set forth in the said bill or infor- mation, this defendant expressly denies each and every of the allegations thereof, except in so far as the same are admitted or set out herein, and in so far as the same are not hereinafter admitted or set out, this defendant prays that the complainants may be put to their proof thereof.
2. And this defendant, further answering, says that in the month of May, sixteen hundred and sixty-six, what is now known as the city of Newark was first settled upon and occupied by persons who had that year em- igrated hither from Connecticut, and that at the time of the said settlement, or within a short time thereafter, the said emigrants, who are now known as the early or old settlers, organized themselves into a regular independent government, but as this defendant believes, they acknowl- edged an allegiance to and in some way were subject to
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the government of Great Britain, which then claimed sovereignty over all the territory included within the boundaries of the State of New Jersey. That shortly after the place of the said settlement had been deter- mined and was located, it was laid out by the said early or old settlers into lots or plots, which they called home lots, which they divided among themselves and upon which they settled, as appears by the record thereof which they then made and which has since been pre- served.
3. And this defendant, further answering, says that at the time of the said settlement, the said early or old settlers seized upon the said lands and took possession thereof, without the leave or license of any person what- soever. That prior to that time the said lands were wild and uncultivated, and were occupied and enjoyed only by the native Indians as hunting grounds, and had never been tilled or put to any useful purpose. That at the time the said early or old settlers entered into possession of the said lands they claimed the same, both in com- mon and in severalty, as their own by the right of pos- session and occupation, but that in order to secure a more perfect title and a better right to the lands of which they had taken possession, they very soon after their settle- ment and sometime during the year sixteen hundred and sixty-six, made a bargain with the said native Indians, by which the said native Indians conveyed to them all the lands which they had so occupied, and that subsequently and on the eleventh day of July, sixteen hundred and sixty-seven, for the purpose of securing a more perfect title and of enlarging and perfecting the said deed of six- teen hundred and sixty-six, they procured from the said Indians a second deed covering also the whole of the said lands, which was afterwards confirmed by a third deed from the Indians, dated on the thirteenth day of March, sixteen hundred and sixty-seven. And this defendant
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says that in and by said deeds the said native Indians conveyed all the lands now included within the limits of the city of Newark, to Obediah Bruen, Samuel Kitchell, Michael Tompkins, John Brown and Robert Denison, to them, their heirs and associates forever, to have, hold and dispose of without claim, let or molestation from the said native Indians, who in and by the said deed are recog- nized and named as the true proprietors and owners of the said lands and premises therein described.
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