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 2
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4. And this defendant, further answering, says that under the said original right acquired by settlement and possession as aforesaid, and under the deeds so obtained as aforesaid from the Indians, who had formerly been in possession of the said tract of land, the said early or old settlers and those who became associated with them had the unmolested and unrestricted right, title, use, occupa- tion and enjoyment of the said lands, and claimed the same by reason of such occupation and use, and of the title so obtained. That they laid out a town site within the bounds of the lands which were conveyed to them by the said native Indians, and called the same the town of Newark. That in said town site they laid out certain streets and squares and public places, and that they made allotments among themselves of lands for individual use, reserving the streets, squares and public places for the common benefit of all the inhabitants of the town. That among the other portions so marked out and allotted was a tract of land now lying near the corner of Broad and Market streets in the said city of Newark, which was set apart for a church and burial place. And this defendant shows that the said tract of land lay on the west side of what is now called Broad street, and the south side of what is now called Market street, and was about seven chains in length along Broad street, and about four chains in width along Market street, and that it was bounded on the north and east by the aforesaid
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highways, on the west by a lot allotted to John Treat, and on the south by a lot allotted to John Johnson. And this defendant says that by virtue of the premises and of the original agreement made by the said early or old settlers with each other, the above described lot and every part thereof was the common property of all the inhabitants of the said town, and that they all had a common interest and a common ownership therein, and that such common rights were conceded and yielded to all the inhabitants of the said town.
5. And this defendant, further answering, says that soon after the said settlement was made there was erected upon the said tract of land on the Broad street side, the only building in the said town for purposes of religious wor- ship, and in accordance with the original design of the said old settlers, the bodies of all members of the settle- ment who died were there buried. And this defendant says that from the earliest times all the inhabitants of the said town had a lawful right to enter upon the said tract and into the said building for the purpose of divine worship and for the purpose of interring their dead, and that there was no person or congregation of persons who had any right to refuse the same to any inhabitant of the said town.
6. And this defendant, further answering, says that the form of government established by the said inhabitants of the town of Newark was a pure democracy, in which all the persons living in said settlement who had a right to vote were obliged to participate. That they kept and preserved the record of all the proceedings had at the regular and special meetings of the inhabitants, which were called town meetings, in a book which is called the town book, and which has been so kept and preserved since the earliest settlement. That in said town book are many references to the tract of land now in dispute, and many references to the manner in which the old set-
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tlers held and claimed to hold the title to the lands which they occupied and enjoyed. And this defendant says that the said town book is now in the possession of this defendant, and that so far as the same contains any matters relevant to the issue in this suit, this defendant prays that it may refer thereto, or to the printed copies thereof issued by the New Jersey Historical Society.
7. And this defendant, further answering, says that the form of local self-government originally adopted by said town, as above set out, was continued and carried on by the inhabitants thereof until the twenty-seventh day of April, seventeen hundred and thirteen, when all that tract of land then known by the name of Newark, and including the disputed tract, was created into a township by metes and bounds, to be known by the name of The Trustees of the Freeholders and Inhabitants of the Town- ship of Newark, by royal patent, which appointed the first trustees thereof, and that thereafter and until the year seventeen hundred and ninety-eight, the government of the said territory was conducted under the authority of that charter. That in the last named year the said terri- tory was created into a body politic and corporate in law, by the name of "The Inhabitants of the Township of Newark, in the County of Essex," and so continued until the year eighteen hundred and thirty-six, when the said territory was incorporated as a city by the name of "The Mayor and Common Council of the City of Newark."
8. And this defendant, further answering, says that from the earliest settlement of the town of Newark, the tract of land now in dispute, or portions thereof, was used as a burying ground, and that interments were made in it from time to time of the bodies of persons who were inhabitants of the said town, and that for many years it was the only burial place within a convenient distance of the said settlement, but that whether the government was by the early inhabitants under their original consti-
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tution and agreement, or under royal charter, or under the authority of the legislature of New Jersey, the said disputed tract of land has always been considered to be, and always has been common and public property, and has always been used by the public in common, and that the public had the exclusive control over and custody of the same, as will more fully appear by the proceedings in relation thereto, entered in the said town book; and that among other things, as early as the year seventeen hundred and thirty-five, at a town meeting held by the inhabitants of the said town of Newark, it was resolved that the said burying place should be let out for pasture for cows; it was so let out for pasture by the votes of the inhabitants in town meeting assembled, for many years thereafter and until the year eighteen hundred and fifteen, when the same was prohibited by a resolution passed in town meeting, and that whatever was done in relation to the old burying ground was made a matter of public business at the town meetings, and whatever moneys were expended thereon was expended from the public funds.
9. And this defendant, further answering, says that the early or old settlers of the said town of Newark always assumed and supposed that the title to the lands so occupied and possessed by them depended upon their actual and adverse possession thereof, but that they recognized the fact that the native Indians who had oc- cupied and enjoyed the same before them had some sort of uncertain right therein, and that it was only for the purpose of strengthening their right, as against the said native Indians, and for the purpose of establishing friendly relations with them, that they negotiated with the said Indians for the title to the said lands, and took from them the deeds above mentioned. And this defendant says that they did not recognize the Proprietors of East Jersey as the owners of the soil occupied by them, but held
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adversely to the said proprietors, and that this is fully shown by the proceedings taken by the said inhabitants in their several town meetings, as is shown by the entries in the said town book. That very soon after the said settlement was begun the Proprietors of East Jersey laid claim to the lands occupied by the then town of Newark, and attempted to induce the inhabitants thereof to re- tognize their claim and title, and to pay to the proprie- tors quit rents at the rate of one-half penny a year for every acre of land occupied by the said inhabitants ; that the demand for the payment thereof was made a matter of public notoriety and of public business, and was re- sisted stoutly in public and in private. That so far as this defendant has been able to learn a demand was made upon the inhabitants by the Governor of the Board of Proprietors as early as the year sixteen hundred and sixty- nine, and that in reply to said demand, on the thirteenth day of February, sixteen hundred and sixty-nine, it was resolved by the said inhabitants, in town meeting assem- bled, that they would hold and possess their lands and rights in the said town, both by civil and divine right, as by their legal purchase and articles doth and may show, "and as for the payment of the half-penny per acre for all our alloted lands according to our articles, and interpre- tations of them, you assuring them to us, we are ready, when the time comes, to perform our duty to the lords or their assigns." But this defendant says that the demand so made was not complied with, and that the Proprietors of East Jersey did not at that time secure from the said in- habitants any recognition of their title, nor any rents for the lands occupied by them, nor of the lands held by them in common as aforesaid.
IO. And these defendants, further answering, say that the settlement of the town of Newark aforesaid was orig- inally made with the full knowledge of the Board of Pro- prietors, and in fact by their procurement and with their
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consent ; that in sixteen hundred and sixty-five they for- mulated and made public a governmental constitution, which they called "The Concession and Agreement of " the Lords Proprietors of the Province of New Cæsarea, " or New Jersey, to and with all and every the Adventur- " ers, and all such as shall settle or plant there," in which they offered large inducements to settlers within the prov- ince, and that it was in consequence of the inducements and promises therein set out that the said early or old settlers came from Connecticut to New Jersey to form their said settlement. And this defendant says that at the time of the said settlement the Proprietors of the Province of East Jersey were John Berkeley and George Carteret, who claimed to hold the title to all the land within the then province of New Jersey, by virtue of a royal patent granted by Charles the Second, King of England, to James, Duke of York, who conveyed or at- tempted to convey his interest and title therein by deed of lease and release to the said Berkeley and Carteret. And this defendant says that the said proprietors, Berk- eley and Carteret, in the year sixteen hundred and sixty- four, by commission, under their hands and seals, ap- pointed Philip Carteret, governor of the said province of New Jersey, during their will and pleasure, and that by an instrument in writing under the hands of said two pro- prietors, they gave to said Philip Carteret full and abso- lute authority to let, sell, convey and assume the lands which they claimed in New Jersey to any or all persons who should settle thereon. And this defendant says that the said Philip Carteret was fully cognizant of the said settlement, and in every way in his power assisted therein ; that he assisted the said early setters in their negotiations with the native Indians by writing them letters, and sending messengers to them to secure their friendship, and to aid the said early settlers in procuring the title to the said lands from them. And this defendant says that
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the deeds hereinabove mentioned were procured from said native Indians with the full knowledge and consent of the said Philip Carteret, and that when the last of the three Indian deeds, which was confirmatory of the other two, came to be made, the execution thereof was acknowl- edged before the said Philip Carteret, who was present at the execution thereof and was assisting therein. And this defendant says that the action of the said Philip Carteret therein was, so far as the said early settlers and the lands occupied by them were concerned, an abandon- ment of any pretended title of the said proprietors therein, and that they took the same, including the lands now in dispute, freed therefrom.
And this defendant, further answering, says that the said inhabitants were and had been in actual custody, possession and enjoyment of the said lands held by them in severalty and in common, including the tract of land now in dispute, for upwards of thirty years before any instrument or deed was made by the said proprietors for the said lands or any portion thereof, during which time the public had used the said burying ground and the lands adjacent thereto for the public uses of worship and burial of the dead, and had acquired a title thereto by possession and occupation, which was adverse to the title of the proprietors of the said land and every part thereof.
II. And this defendant, further answering, says that the Board of Proprietors of East Jersey, for the purpose of confirming and making certain the title of certain of the lots which had been so settled upon and occupied by the old inhabitants, on or about the tenth day of Decem- ber, sixteen hundred and ninety-six, made, executed and delivered to John Curtis, John Treat, Theophilus Pierson and Robert Young, of the said town of Newark, a deed of conveyance for several tracts of land, among which are the premises in dispute, and therein described as follows :
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" All that small tract alotted for the bureing place, take- ing in the pond and meeting house, being seaven chaines in length and foure chaines in breadth, bounded west by John Treat, south by John Johnson, north and east by highways."
And that in and by said deed the said grantees were to have and to hold the said lands to the only proper use, benefit and behoof of the old settlers of the town of Newark aforesaid, their heirs and assigns forever, in com mon, and that the said lands were granted to be and remain for the several uses herein particularly expressed, and to be appropriated for no other use or uses whatso- ever. And this defendant says that at the time the said deed was made, acknowledged and delivered, the inhab- itants of the town of Newark were in actual possession of the lands thereby granted or intended to be granted, and that as a matter of fact and as a matter of law, the said deed was merely confirmatory of the title which the said inhabitants had already acquired in the said lands. That the said deed was made to the trustees therein named, for the reason that the inhabitants of the town of Newark were not incorporated, and as a body could not take the title thereto, but that it was not intended that the said deed should impose an unalterable trust upon the said lands, or impress upon them a perpetual use, but that on the contrary thereof, the words in the said deed which are relied upon by the complainant to establish the said use, are merely words of description, and are inserted in the said deed for the purpose of denoting the · use to which the inhabitants of the said old town had put the said lands, and to designate them with absolute certainty.
12. And this defendant, further answering, says that from and after the making of the said proprietors' deed, the said lands continued to be used by the public in the same manner and to the same extent as theretofore, and
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that in consequence of the doubts which had always ex- isted as to the right and title of the public in the said lands, and for the purposes of quieting the title thereto, the legislature, on or about the fifteenth day of February, eighteen hundred and four, passed an act, set out in the third paragraph of the bill of complaint herein. And this defendant states and charges the fact to be that by virtue of that enactment all prior disputes as to the legal title to the said lands were settled ; that thereby the town- ship of Newark became and was vested with the legal title to the tract of land now in dispute and with full control thereof, and that in pursuance of that act the said township of Newark, and afterwards the city of Newark, have had the legal title to and the possession of the said plot, and have of right exercised full and absolute con- trol over the same, and that subject to such limitations as were by that act put on their power in relation thereto, the said township and this defendant had a lawful right and the full authority to take such measures as were ex- pedient for the care and custody of the said grounds, and the preservation of the remains and monuments therein contained.
13. And this defendant, further answering, says that the said old burying ground now lies in the heart of the city of Newark, and is surrounded by the most populous and most valuable portion of the city ; that no interments have been made therein for many years, and that on ac- count of the peculiar situation and location of the land the same has now and long since had become unsuitable for burials; that originally the whole plot was used in common by the people resident in the town for the pur- poses of worship and interment, but that as the land grew more and more valuable for business purposes, encroach- ments were made on the Broad and Market street fronts, which are now with a small exception covered by busi- ness buildings, in which large amounts of money are
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invested ; that in making such encroachments, the per- sons who claim to be owners of the said buildings, have actually erected buildings upon portions of the said land in which interments have been made, and that it has been impossible for this defendant to protect the said premises from desecration; that it has been and is now open to the common use of the public, and is used as a rendezvous for immoral persons, and as a depository for rubbish and dirt, and for a long time has been a public nuisance ; and this defendant says that by virtue of its general control over the said grounds, and in pursuance of the terms of the act of 1886, it has determined that the general good of the community, and all considerations of respect for the memory of the early settlers of Newark, whose bodies are buried there, require that the use to which the said premises have been so long devoted should be determined, and that proper measures should be taken to care for the remains of the said deceased persons, and to perpetuate their memories.
14. And this defendant, further answering, says that in pursuance of such determination, proper resolutions and ordinances to carry the same into effect were passed, after much public agitation of the questions involved, in and by the Common Council, in the public press, and by the public generally, and that this defendant prior to the filing of the bill herein, appropriated the sum of eight thousand dollars to purchase a plot in the city of Newark, in which to re-inter the said remains, and to procure a suitable monument to perpetuate the memories of the said deceased persons, and to enable this defendant to decently remove and properly re-inter the said bodies ; and that this defendant at the time of the filing of the bill had begun the task of the removal of said bodies, and had expended large sums of money in and about the said work, all of which will be lost unless this defendant shall be allowed to proceed therewith. And this defend-
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ant says that the question of the advisability of the re- moval of the said bodies has been the subject of public discussion for several years past in the Common Council and in the newspapers, and that in the opinion of the Com- mon Council the time has now come when such a remo- val has become necessary. And this defendant says that only a small portion of the present population of the city of Newark have, by reason of the burial of their ances- tors therein, any interest in the said burial ground, and that it is manifestly for the benefit of the public at large that the said land should be put to some use to which its situation and location in the city make it more applicable than to burial purposes.
15. And this defendant, further answering, says that the Common Council of the City of Newark has full dis- cretion under the act of eighteen hundred and eighty- six, in the management and control of the said burying ground ; that all that it has done or is about to do, and all the resolutions passed and adopted by the Common Council in relation thereto, are within the powers con- ferred by that act. And this defendant insists that this Court has no jurisdiction to enjoin this defendant or its servants and agents from removing the said bodies or from fully performing the work in that behalf which has been already begun.
16. And this defendant, further answering, denies the allegations of the said bill in regard to the manner in which said act of eighteen hundred and eighty-six was passed ; and it denies that the same was introduced at an extra session of the legislature, and was hurried through with great rapidity, though if said allegations were true this Court is incompetent to make any inquiry into the same. But, on the contrary, this defendant says that this act was introduced and passed at an adjourned session of the legislature, and that the advisability of the passage of such a law was publicly discussed by the people of the
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city of Newark, by newspapers, and by the Common Council, for months before the act was introduced into the legislature, and that the act in the form in which it now is was asked for by this defendant in its corporate capacity, in the firm belief that it is an expression of the wish of the people of the city in relation to the said matter. And this defendant denies that the said act of eighteen hundred and eighty-six is special or local in its character, or that it violates any of the provisions of the constitution ; but this defendant says that the said act is general in its character and objects, and is within the police power of the legislature. And this defendant says that after the said act had been passed by the legislature it went to the Governor for his approval, and was held by him for a long time, during which, this defendant is in- formed, the relators, or some of them, objected to the form and purpose of the act to the Governor, and pre- sented to the Governor oral and written arguments against the same, and that after the Governor had heard all ob- jections he refused to approve the act until he had seen the land, and that he came to Newark for that purpose, and made a personal inspection of the land in dispute, and subsequently signed his approval of the measure.
17. And this defendant, further answering, says and admits that the Common Council of the city of Newark did pass a resolution providing for the use for the present of the said lands as a place for the sale of country pro- duce from wagons, but this defendant says in relation thereto that for many years past it has been customary to allow such produce to be sold from wagons along the line of Broad street, one of the principal thoroughfares of the city, and that the city authorities have not, and because of the great expense could not provide any other place therefor at the present time; that this Court by its in- junction restrained this defendant recently from allowing said business to be carried on in the public streets of the
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city, and that it was in consequence of such injunction that the Common Council decided to appropriate the old burying ground to market purposes as aforesaid. But this defendant shows that such use was only intended to be a temporary expedient, and was expressed so to be in the resolution passed by the Common Council in rela- tion to the matter, and that it is the intention of this defendant eventually to purchase and provide in some other part of the city a plot of land suitable for a coun- try produce market, and that then the plot of land in dispute will be relieved therefrom.
17}. And this defendant, further answering, says that many years ago it became evident that it was not to the interest or advantage of the public that any further in- terments should be made in the said old burying ground, and the question of discontinuing the same was publicly discussed in the regular town meetings held by the in- habitants of the township of Newark, and that in further- ance thereof the township authorized its officers to pur- chase a new burying ground, and that such purchase was made in the year eighteen hundred and twenty-eight or thereabouts, with the public money, and that afterwards and on the thirteenth day of April, eighteen hundred and twenty-nine, a resolution was passed by the town meeting held on that day that in future no more inter- ments should be made in the old burying ground, and that notice of the resolution should be given by the town committee in the newspapers printed in the town. And this defendant says that after the passage of the said res- olution the use of the old burying ground for the pur- pose of interring the dead was practically, if not abso- lutely discontinued, and that since then there have been no interments therein.
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