History of Essex and Hudson counties, New Jersey, Vol. I, Part 64

Author: Shaw, William H
Publication date: 1884
Publisher: [United States :]
Number of Pages: 840

USA > New Jersey > Essex County > History of Essex and Hudson counties, New Jersey, Vol. I > Part 64
USA > New Jersey > Hudson County > History of Essex and Hudson counties, New Jersey, Vol. I > Part 64

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During the time of Carteret, and even later, under the government of the Proprietors, the practice of law had not reached the dignity of a profession. Sundry statutory enactments of both those periods give the impression that legal learning was almost exclu- sively confined to the inferior magistrates, the sheriff, sub-sheriff, clerks of the court and messengers; and although there were no other persons capable of per- forming the duties of attorneys and counselors, it would appear that the services of these gentlemen were looked upon as a superfluity and oven an imper- tinence. As early as the second session of the tiene- ral Assembly, in 1676, and apparently on the very first day, a fearful blow was inflicted upon some of them by the following enactment :

"IV. Whereas it is apprehended by the Deputies, the Province being in its minority, not convenient for any Justice of the Peace to be employed in the Practice of Exercise of an Attorney or Advocate,

" Be it Therefore Enacted by this General Amembly, that no Justice of the Place within this Province shall serve as an Attorney or Adviento, or write any Declaration of Declarations, during the time of his or their being in the Place or Office of a Justice of the Peace, upon the Penalty of paying Ten Pounds Fine for every such Default by any Justice of the Peace, excepting for the king, the Lord Proprietor, or in his or their on a Case, and such Cases as are already commenced, and that there shall In. no Attorney's Fre allowed by any Court."

But this action on the part of the General Assem- bly seemed to be unfavorable to the Province in its foreign relations, and consequently at the next session in 1677, the importance of Justices of the Peace was acknowledged as follows :

"XII. Whereas, there is an Act made, October 5th, 1676, prohibiting all Justices of the Peace within this Province, for appearing in any Case IN Attorneys or Advocates except for the King, the Lord Proprietor, or his or their cases, or in Chwy already f'ommenced,

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HISTORY OF ESSEX COUNTY, NEW JERSEY.

" Be it Enacted by this present General Assembly, that in Chas of foreign Negotiations, it is allowed for any Justice of the Peace within this Province to appear as an Attorney or Advocate."

After, however, the government of the Lord Pro- prietor had come to an end (1682), and when the twenty-four Proprietors had fairly taken the reins in hand, Justices of the Peace and all persons were put upon an equal footing as practitioners of law. The Twenty-four Proprietors, in their "Fundamental Constitution " of 1683, declared : that " In all courts, persons of all persuasions may freely appear in their own way, and according to their own manner, and there personally plead their own causes them- selves, or if unable, by their friends, no person being allowed to take money for pleading or advice in such Cases."

Although this cheap way of obtaining justice in the courts was open to everybody, and even protected by a heavy penalty, as against Justices of the Peace, yet it would seem that other persons not, perhaps, liable to the penalty, found a profitable business in the practice of the law ; for we find that some years subsequent to the passage of the foregoing act>, sheriffs, sub-sheriff's, and other officers of the courts, , sition because he had not been approved of by an needed to be looked after as well as Justices of the Peace, and the General Assembly interfered, quite unpleasantly no doubt, with their shrewd devices by the passage of the following act, entitled "An Act for Regulating Attorneys-at-Law :"

" For regulating of Attorneys within this Proviner.

" Be it Enacted by th . Governor, Council and Deputies now met and as- sembled, and by the Authority of the sune, that from und afier the pub- lication hereof, no Justice of the Peace, Sheriff, or Sub-Sheriff, no ('lerk of any Court within this Province, directly or indirectly, no Comenis- sinner or Messenger of the Court of Samell Causes, shall be admitted or suffered to plead as Attorney in any C'ourt within this Province, except- ing in such cases as any of the said Persons are either Plaintiffs or De- fondants, under the Penalty of the forfeiture of Twenty Pounds, whereuf One Third Part to the In furnier who shall prosecute the same as an Action of Debt in any Court of Record within this Province, one third to the Governor, and one third to the country, " (shall lx paidl).

Attorney or other person be suffered to practice or plead for Fee or Hire, in any Court of Judicature, in any Suit or Cause or Process in Law whatsoever but such as are admitted to Practice by License by the tio- vernor of the Province for the Time being." This is an injunction plain enough, and in all probability sought for by a people who desired the benefits of the Courts, and who were willing to take the risk of that, at least, which might prove "destructive to men's estates" alone. Governor Basse would, doubtless, have complied with this injunction, had the General Assembly given him an opportunity. It ought, per- haps, to be said here that the people entertained a very great dislike for Governor Basse, who was re- garded as a sort of impostor, his comunssion not having been approved by the king nor even signed by enough of the Proprietors to make it valid. In time they utterly refused to obey him and he returned to England. Col. Andrew Hamilton, who had been superseded by Basse as Governor, was reappointed Governor of both East and West New Jersey and thither he was immediately returned. In re-assuming the government, however, he met with great oppo-

order of Council, according to the express letter of an act of parliament. At this time, the claim of the Pro- prietors to exercise the power of government in the Province, had been for several years depending in the Court of King's Bench. The Proprietors, weary, at last, of the long contest and indifferent, perhaps, as to whether or not they were entitled to hold the government, provided they might hold their posses- sions, concluded, in October 1701, to surrender to the Crown their Claims as rulers of the province of New Jersey. In a petition, therefore, to the Lords Justices of England, touching their appointment of Governor Hamilton, after reviewing the troubles existing in the Provinces they said : " Your petitioners have agreed and are ready to surrender all their right of govern- ment to his Majesty, upon such terms and conditions as are requisite for the preservation of their proper- ties and civil interests, and which they humbly hope will be allowed to them."

It seems strange that while so many laws should be passed to keep Attorneys out of the Courts, none should be enacted to license and admit them. It is easy to believe that they were needed and that the people desired them, but it is possible and, perhaps, " Your petitioners therefore most humbly pray that for the preservation of the publie peace of those Pro- vinces, your excellencies will be graciously pleased immediately to approve of Col. Hamilton to be Gov- ernor of the Provinces of East and West Jersey until the terms of surrender can be adjusted; and your petitioners shall ever pray." probable that the gentlemen composing the General Assembly were in sympathy with Gabriel Thomas who, writing an Account of Pennsylvania and West New Jersey in 1698, says: "Of Lawyers and Physi- cians I shall say nothing, because this Country is very peaceable and healthy ; long may it so continue, and never have occasion for the tongue of the one nor the Col. Hamilton continued in the office of Governor until the surrender of the government of the Provinces and acceptance thereof by Queen Anne were consumi- mated on the 17th day of April, 1702. pen of the other, both equally destructive to men's estates and lives." However this may be, it is a fact that in 1698, (the year just above mentioned), the Twenty-Four Proprietors, as if importuned on this This was the commencement of a new epoch in the history of the Courts of New Jersey ; and the Com- mission and Instructions delivered by Queen Anne to Lord Cornbury, as the first Governor of the new subject, sent written instructions to Jeremiah Basse, then Governor of East New Jersey, charging him, among other things that he must do : "That you con- sent to pass a Law or Set of the Assembly, that no Colony, were, in fact, its second constitution. In these

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BENCH AND BAR OF ESSEX COUNTY.

Instructions the attention of the Governor was copie- cially called to the laws which he might find in exist- ence, and concerning them he is enjoined as follows : " You are with all convenient speed to cause a collec- tion to be made of all the Laws, Orders, Rules, or such as have hitherto served or heen reputed as Laws amongst the Inhabitants of our said Province of Nora Cesarea or New Jersey, and together with our afure- said Council and Assembly, you are to revise, correct and amend the same, as may be necessary."

Concerning the passage of Laws by the General Assembly it is remarkable that at that carly period, a provision should have been made in this Constitution, the omission of which in the Constitution of 1776 was so seriously felt, that it was introduced into the Con- stitution of 1844, and may now be found in nearly all the Constitutions of the different States of the U'nion. It is in regard to the intermixing of different laws in one and the same act, and is as follows: "You are also, as much as possible, to observe in the passing of all Laws, that whatever may be requisite upon each different matter, be accordingly provided for by a different Law without intermixing in one and the same Act such Things as have no proper Relation to each other ; and you are especially to take care that 10 Clause or Clauses be inserted in, or annexed to any act which shall be foreign to what the Title of such respective Act imports."

The provision in the Constitution of 1844, is evi- dently taken from the foregoing. It is in these words : " To avoid improper influences which may result from intermixing in one and the same act such things as have no relation to each other, every law shall embrace but one object, and that shall be expressed in the title."

In the matter of erecting Courts or Offices of Judicature, it is eurious that the Commission of the Governor and his Instructions should be so much at variance. In the Instructions he is commanded as follows: "You shall not erect any Court or Office of Judicature, not before erected or established, without our especial Order." In his Commission, on the other hand, we find as follows: " And do further give and grant unto you, full Power and Authority, with the Advice and Consent of our said Council, to erect. constitute and establish such and so many Courts of Judicature and Public' Justice within our said Province under your Government, as you and they shall think fit and necessary, for the hearing and determining of all Causes as well Criminal as Civil, according to Law and Equity, and for awarding execution thereupon with all reasonable and necessary Powers, Authorities, Fees, and Privileges belonging unto them."

By Virtue, then, of his Commission which conferred upon him and his Council powers hitherto enjoyed by the General Assembly, the Governor promulgated in 1704 the first "Ordinance of Establishing Courts of Judicature" which really forms the foundation of the whole Ju !icial System of New Jersey. ".All that

has been done from that day to this," says Judge Field in his discourse before mentioned, "has been to fill up, as it were, the outlines which he sketched; to add some additional apartments to the judicial edifice which he constructed."

This ordinance, which was, perhaps, unknown, certainly unnoticed, not only by the Historians of New Jersey, but by those who have written upon its Courts of Justice is so interesting that it is here given in full, as it appears in the Appendix to Judge Field's Discourse, where it was printed for the first time since its publication in 1704.

AN ORDINANCE FOR ESTABLISHING COURTS OF JU DICATURE.

Whereas, her nuet Sacred Majesty, Anne, by the Grace of God, Queen of England, scotland, France and Ireland, Pfeiler of the Faith &e., by her Royal Letters Patents, learing date the fifth day of December, In the first year of Her Majesty's Reign, did, among other things therein men- tioned, give and grant unto his Excellency, Elward Viscount Cornbury, Captain-General and Governour-in-Chief in and over the Province of Nova Camarca, or New Jersey, &r. full Power ant Authority, with the Advice and Consent of her Majesty's Council of the said Province, to erect, constitute and establish such and so many Courts f Julienture nad public fustice within the said Province and Territories depending thereon, as his maid Excellency and Contcil shall think fit and berromry, for the Hearing and Determining of all I'sused as well t'riminal as Civil, arcon)- ing to law and Equity, aml for awarding Execution thereupon, with all necessary Powers, Authorities, Fees and Privileges belonging to them.

His Excellency, the Governour, by and with the advice and Content of her Majesty's Council, and by Virtue of the Power and Authority- derived unto him by her said Majesty's Letters Patente, doth by thear Presents Ordain, and it is hereby Ordained by the Authority a bresaid, That every Justice of the Peace that resides within any Town or County within this Province, is by these Presents fully empowered and authorized to have d'ognizance of all Causes of cies of Debt and Trespass, to the Value of Forty Shillings, or under ; which Causes of Cases of lubl and Tempos, to the value of Forty Shillings or under, shall and may be Heard, Try'd and finally Determined with mt a Jury, by every Justice uf the Peace residing, as aforrwid.

The Process of Warning against a Free-helder or Inhabitant, shall be by sammons under the Hand of the Justice, directed to the Constable of the Town ur Precinct, or to any deputed by him, where the party con- plained against does live or reside ; which Summons being personally served ur left at the Defendant's House, or place of his Abelle, four days before the hearing of the Plaint, shall be sufficient Authority ta and for the said Justice to proceed to hear auch those of Cards and In- terunne the suno in the Ih fondant's abeenre, and to grant Execution therenjw against the Defendant's Person, or for want thereof, his Goula and thattles, which the C'onstable, or his Deputy, of that Town or Pre- cinct, shall nul may arve, unless sone reasonable excuse for the Parties almente appear to the Justice.

Art the Process against on lineront Person, fumate ur Foreigner shall be by Warrant from any one Justice of the Peace, to be served by any Constable, or his Deputy, within that County, who shall by Virtuo thereof arrest the Party, and him aufrly keep till he be carried tu fore the wid .Justice of the Peare, who shall and may immediately hanr, try and finally de termine all such Causes and dawn of this and Trompe, to the Value of Fury Shillings, or under, by awardding Judgment and Execu- tion : and if pymont be not immediately made, the Constable is to do- liver the Parts to the sheriff, who is hereby required to take him into C'ustedly, uml him safely keep till payment be nuuls of the mme, with Charges: A sags Prevented, That an Appeal to the Justices at the next Court of Seasons held for the end county, shall be allowed for any um upwards of Twenty Shillings

And his mol Excellency, Is the advice and consent aforemid, doch by there Iscar ita lasther Onlain. That there shall be kept and holden a Court of Commi a Plens in ench respective County witha this Province which shall be holden in each County at auch place where the General Court of Save the is usually hold and kept, to begin immediately after the moms of the Peace down end and terminate, and then to hold and con- tinue as long as there is any business, not exceeding three days,

And the several and respective Courts of Pleas hereby established, shall have power and Jurinlation to hear. try and finally determine all

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HISTORY OF ESSEX COUNTY, NEW JERSEY.

actions, aod all Matters and Things Tryahle at l'omnion Law, of what nature or kind svever. Provided alicays, and it is hereby Ordained, That there inny, and shall be an Appeal or Removal by Habeus Corpus, or any other lawful Writ, of any Person or any Action or Suit depend- ing, and of Judgment or Execution that shall be determined in the said respectivo Courts of Pleas, upwards uf Ten Pounds, and of any Action or Suit wherein the Right or Title of, in or to any Land, or any thing relat- ing thereto, shall be brought into Dispute or upon Tryal.

And it is further Ordained by the Authority afuresaid, That the General Sessions of the Peace shall be held in each respective County within this Province, at the Times and Places hereafter mentioned, that is to say :

For the County of Muddleser, at Ambay, the third Tuesdays in February, May and .fugust ; and the fourth Tuesday in November.

Fur the County of Bergen, at Bergen, the first Tuesdays in February, May and Ingust; and the second Tuesday in November.

For the County of Ever, at Verark, the second Tuesdays of February, May aud August ; and the third Tuesday in November.

For the County of Monmouth, at Shrewsbury, the fourth Tuesdays in February, Muy and Angust ; and the first Tuesday in December.

For the County of Burlington, at Burlington, the first Tuesdays in March, June and September ; and the second Tuesday in December.

For the County of Gloucester, the second Tuesdays in March, June and September; and the third Tuesday in December.

For the County of Salem, at Salem, the third Tuesdays in March, June and September ; and the fourth Tuesday in December.

For the County of Cape May, at the house of Shainger Hand, the fourth Tues days in March, June and September, and the first Tuesday in January. Which General Sessions of the Prace in each respective County aforesaid shall hald and continue for any term not exceeding two days.

And be it further Orduined by the Authority aforesaid. That there shall be held and kept at the Cities ur Towns of Perth Amboy utut Burlington alternately a Supreme Court of Judicature, which Sopram Short is hereby fully impowered to have cognizance of all Pleas, Civil, C'riminal and Mixt as fully and amply, to all intents and purposes whatsoever, as The Courts of Queen's Beach, Common Pleas and Exchequer within her Mujestie's Kingdom of England have or ought to have, in and to which Sopram Court all and every Person and Persons whatsoever shall and may, if they see meet, commence any Action or Snit, the Debt or Damage Jaid in much Action or Suit being upwards of Ten Pounds, and shall or may by Certiorari, Habeas Corpus, ur any other lawful Writ, remove out of any of the respective Courts of Sessions of the Fence or Common Pleas, any Information or Indictment there depending, or judgment thereupon given or to be given in any Criminal Matter whatsoever cognizable befor" them, or any of them, as also all Actions, Pleas or Suits, real, personal or mixt, depending in any of the said Courts, and all Judgments thereupon given, or to be given. Proruled .Shouys, That the Action, or shit, depend- ing, or Judgment given be upwards of the Value of Ten Pounds, or that the Action, or Bust, there depending or determined, be concerning the Right ur Title of any Free-hold.

And out of the office of which Supream Court at Amboy and Burlington all process shall inne, under the Test of the Chief Justice of the said Court ; unto which Office all Returns shall be mande. Which Supream Court shall be holden at the Cities of Amboy and Burlington alternately, at Ambwy on the first Tuesday in May, and nt Burlington on the first Tuesday in November, annually, and every year ; and each session of the sail Court shall continue for any Term not exceeding five days. And one of the Justices of the said Supream Court shall once in every year, if need whall so require, go the Circuit, and hold and keep the said Suprcam Court, ter the County of Bergen ut Bergen, on the third Tuesday in April. For the D'unty of Essex ut Newark, on the fourth Tuemlay in April. For the County of Monmouth at Shrewsbury, the second Tuesday in May. For the County of Glow ester ut Gloucester, the third Tuesday in May. For the County of Salem at salem, the fimrth Tuesday in May. Fur tho ( maty of Cape May, at Shunger Hands, the first Tuesday in June. Which Justice, when he goes the Circuit, shall in each respectivo County be twisted by two or more Justices of the Peace, during the time of two days, whilst the Court, in the Circuit, is sitting, and no longer.

.And it is further Ordained by the .Authority aforemail. That all and every of the Justices of dudge of the several Courts aforementioned, he, and are hereby sufficiently Impowered and Authorized to make, ordain and establish all such Holes and orders for the more regular prurtuing and prix erding in the ald Courte, a fully and anydy, tu all intents and pur- ja whatsoever, as all or any of the Judges of the several Courts of Queena Bench, Common Pleas and Exchequer, in England legally Jo.

Ant it is further ordained by the Authority aforesaid, That no Porto's Right of Property shall be, by any of the aforwald Courts, Determined,

except where matters of Fact are either acknowledged by the Parties, or Judgment confessed, or passeth, by the Defendant's fault for want of Plea or Answer, unless the Fact be found by Verdict of Twelve Men of that Neighbourhood, as it ought to be done by Law.

CORNBURY.

A Court of Chancery always existed in the State of New Jersey, although its powers were not at first vested in a single person. We have already seen that during the Proprietary Government, the Court of Common Rights exercised Chancery powers and was virtually the Court of Chancery until 1698. Subsequent to that time until 1705, this Court was undoubtedly hekl by the Governor and Council, and after 1705, its authority was vested in the Gov- ernor, or Lieutenant Governor, and three members of the Council. The ordinance which provided for the establishment of this Court, provided also that there should be four stated terms in each year, and that all causes should be heard and determined according to the usage of the High Court of Chancery of the Kingdom of England. Such was the Constitution of the Court of Chancery until 1718, when trovernor Hunter, in the ninth year of his administration, assumed the office of Chancellor, and continued to exercise its authority until his resignation in 1720. Although this act of Governor Hunter was condemned by the people as an unauthorized assumption of power, it received the approval of the King's Government, and was adopted by his successor, Governor Burnet, who took especial delight in his duties as Chancellor. It was during his adminis- tration in 1724, that the first ordinance for the regu- lation of fees in the Court of Chancery was adopted; but for many years thereafter the Court labored under great disadvantages, because the fees were insufficient to secure the attendance of competent and essential officers. Three years after the advent of Governor Franklin, an effort was made by him (1768) to seenre such action on the part of the Council and General Assembly as would place the Court of Chancery on a better footing. In his message to them, he says among other things: "In every Colony, controver- sies frequently arise, wherein the Courts of Common Law cannot give relief and which therefore become the proper objects of a Court of Chanecry. As the disuse of such a Court would probably be attended with mischief's to the good people you represent, I have kept it open, though under very great disadvantages to myself. There not being any salary allowed for the necessary officers, and the fees not being sufficient to make some of them even a moderate recompence for their trouble and attendance, I have in vain offered divers Commissions in Chancery to such per- sons as I have esteemed qualified to execute them. I recommend this matter to your serious consideration, and desire that you would enable me to make a reason- able allowance to such as I shall appoint to execute the necessary offices in that Court, in such manner as will be most likely to induce persons of knowledge and probity to take upon them the discharge of those

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BENCH AND BAR OF ESSEX COUNTY.

important trusts ; without which it will be extremely inconvenient, if not inpracticable, to receive any other business in the Chancery, or finish what is there."

The Governor's message having been discussed by the Assembly, he was courteously requested to furnish a list of such offices as he desired a provision made for. He thereupon called for a Master of the Rolls, a Master in Chancery for one division of the Province, two Masters in Chancery for the other division and a Sergeant at Arms in each division. But the General Assembly, caring little for the Court of Chancery, paid no further attention to the Governor's request.

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History of Essex and Hudson counties, New Jersey, Vol. I, Part 64

Author: Shaw, William H Publication date: 1884 Publisher: [United States :] Number of Pages: 840

Author: Shaw, William H
Publication date: 1884
Publisher: [United States :]
Number of Pages: 840