USA > New Jersey > Monmouth County > History of Monmouth County, New Jersey. Pt. 1 > Part 51
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The Common Law Courts, as established by Cornbury's ordinance of 1704, continued, says Field, without any essential change, to the Revo- lution. The constitution of 1776 merely directed how the judges were to be appointed, thereby tacitly adopting them, with all the judicial power they had at the time. And shortly after the adop- tion of the constitution, the Legislature enacted " that the several courts of law and equity of this State shall be confirmed and established, and continued to be held with the like powers under the present government, as they were held at and before the Declaration of Independence." Nor did the constitution of 1844 make any al- teration in the character of the courts of New Jersey, save only that the Governor was no longer to be chancellor, and that the Court of Errors and Appeals in the last resort, instead of consisting of the Governor and Council, was to be composed of the chancellor, the justices of the Supreme Court and six judges to be appointed for that purpose.3
1 Elmer's Reminiscences.
" "The costume worn by the judges prior to the Revo- lution was probably assumed by them immediately after the surrender [1702], when they were first appointed by royal authority. It consisted of scarlet robes, with deep facings and cuffs of black velvet ; bands and powdered wigs, adorned with black silk bags. In summer, black silk gowns were worn. The lawyers also wore black silk gowns and sometimes bands and bags. These official robes were re- sumed to some extent after the Revolution, but towards the close of the last century [1791] they fell into disuse." ·- Field.
3 " The Court of Errors and Appeals, which had before been composed of the Governor and Council, was now to consist of the Chancellor, the Justices of the Supreme
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HISTORY OF MONMOUTH COUNTY, NEW JERSEY.
The ancient writer Oldmixon, in his enumera- tion of the advantages and blessings enjoyed by the people living in the provinces east of the Delaware, mentions among them the fact that at the time of his writing there were no lawyers, physicians or preachers in New Jersey. And Gabriel Thomas, in his " Geographical Account of Pennsylvania and West New Jersey," says : "Of Lawyers and Physicians I shall say nothing, because this country is very peaceable and healthy ; long may it continue, and never have occasion for the tongue of the one nor the pen of the other, both equally destructive to men's estates and lives." But if this was true of the western province, it was certainly wholly inap- plicable to East New Jersey, which, at the time he wrote (1698), was by no means " peaceable," but, on the contrary, was in a state of almost continual anarchy and disorder.
The " Concessions" of the twenty-four pro- prietors of East New Jersey (in whose councils the Quaker ideas and influence were largely predominant) provided that in all courts of the province persons of all persuasions might freely appear in their own way, and there plead their own causes, or, if unable, they might do so by their friends ; and no person should be allowed to take money for advice or pleading in such cases. But these Quaker restrictions were not
long (if ever) enforced, and lawyers soon made their appearance in the courts. In 1694 the Assembly and Council passed " An Act for the Regulation of Attorneys-at-Law within the Province," which prohibited justices of the peace, sheriffs and clerks of the courts from acting as attorneys, under penalty of a fine of twenty pounds; and in 1698, Governor Basse was instructed to procure the passage of an act by which no attorney or other person should be suffered to practice or plead for fee or hire in any court of judicature unless he had been reg- ularly admitted to practice by license from the Governor.
The first lawyer of Monmouth County was Richard Hartshorne. It is not known that he had been educated to the profession in England, but it is certain that he was an attorney after he came to reside at the Highlands, in Monmouth, and also that he became a man of extensive in- fluence and filled many honorable positions, among which was that of commissioner (ap- pointed in 1676) to adjust and decide some mat- ters of difference between the two provinces of New Jersey.
At the Monmouth Sessions of March, 1695- 96, "Thomas Gordon was, by the Court, con- stituted and appointed as King's Attorney." The fact that he was so appointed does not prove conclusively that he was a lawyer, but other ref- erence to him, found in various places in the records of that period, make it reasonably cer- tain that he was. Many other entries are found recording the appointment of different persons as King's attorney ; but as laymen were some- times appointed to that office, it is not possible to say which were and which were not members of the profession.
John Reid, who was one of the most promi- nent men of Monmouth County in the year 1700, and thenceforward until his death, was not a lawyer by education, but came over from Scot- land as an " overseer" for the Barclays. After a short stay at Perth Amboy, he removed to a tract called "Hortensia," on Hop Brook, in Monmouth, where he resided during the re- mainder of his life, and became presiding judge of the Court of Quarter Sessions of Monmouth. That he was never a lawyer, but, on the contrary,
Court and six judges, which Judges were to be appointed for six years. This Court was thus made higher by the judicial character of the members, and more permanent from the extension of the term of office. The powers be_ longing to the Court of Pardons, which had been exercised by Governor and Council, were now vested in the Governor, the Chancellor and the six Judges of the Court of Errors and Appeals, or a major part of them. This body might remit fines and forfeitures and grant pardons after convic- tion in all cases except impeachment. The duties of Chan- cellor and Ordinary, formerly performed by the Governor, were now assigned to a separate officer. A change was also made in the mode of appointing judicial officers. Under the former constitution all these appointments were made by the legislative bodies in joint meeting. Now, the Jus- tices of the Supreme Court, the Chancellor and the Judges of the Court of Errors and Appeals were to be nominated by the Governor and appointed by him with the advice and consent of the Senate : Justices of the Supreme Court and the Chancellor to hold their offices for seven years ; Judges of the Court of Common Pleas to be appointed by the Senate and General Assembly in joint meeting, and commissioned by the Governor; Justices of the Peace to be elected by the people."
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THE BENCH AND BAR OF MONMOUTH COUNTY.
rather disposed to regard them with some degree of distrust (as was common in New Jersey at that time), is shown from some of his writings,1
1 Among the papers found in his effects after his death is the following :
" Mr. John Reid's Observations on the Laws of New Jersey, 1713.
" Some Observations of our Laws, in a Letter to one of our Representatives for the Eastern Division of New Jersey. " . . . But I am told, Sir, 'tis some Attorneys-at-Law, whose interests differ from ours, that opposes these our Laws, because some of 'em help to secure our Land Titles, which they would disturb. They say of our Titles, we can't eject strangers that get possession of our Lands. For that every one of the Proprietors being Tenants in common have not sealed our Deeds. And if they dare thus question our Title, what will become of all the neighbouring Planta- tions ? . . . I am also told, Sir, that some of the same Gentlemen, who have been suffered to go at this bold rate against our Laws and Land Titles, would also deprive us of the English statutes : affirming that no Statutes reach here, unless the Plantations are therein expressed, or by general words included ; whereby they would include these colonies with conquered countries. By the Common Law we can't convey our Lands from one to another, without solemn livery of Seizin or by Fine and Recovery,-Coke, 1st Inst. And if they can persuade us out of the help of the statutes, -27 H's, Ca. 10,-whereby the use is transferred into pos- session, thousands in these parts of the world wanting Livery of Seizin, have no possession in Law ; by consequence Strangers may enter, and these Gentlemen for a fee will de- fend'em. If joint tenants, or tenants in common, refuse to make Partition, they can't be compelled by the Common Law,-Lit. 299, 318. And if they can keep off the Statute, -31 H. 8 Ca., and 81 H. 8, Ca. 32,-those families whose lands have been so parted are to sue and these Gentlemen must settle 'em. Nor can we devise our Lands by the Com- mon Law,-Inst. iii. C. And if they can bar us the benefit of the Statutes,-32 H. 8 Ca. 1, and 34 H. 8 Ca. 5,-all the last Wills in these parts of the world are null (having no Act here for 'em). And then 'tis but for every respective heir to enter, and these Gentlemen may find employment. . . . ',
He concludes by urging a revision of the laws of the province, as follows : " And now, Sir, 'tis time for the Legislature, not the Advocates, to tell us what Laws totake place here, which brings me to what I hinted at before, viz. : If our General Assembly would extract the most bene- ficial statutes, or parts of 'em which can fit our circum- stances, and that have the same reason here, 'twould prevent the trouble and charge of making many Acts. Those that shall then be wanting, because of our different circumstances from England, may be taken from our own and neighbouring Acts, compared to complete our body of Laws.
" But let all our temporary Acts be stitched by themselves from time to time, that the bound books of our lasting laws may be intire; and copies of all sorts kept in the Clerk's office of each County. that we be no more tossed .with the precarious breath of mercenary men. And re- member, that no man be suffered to practice as an Attorney-
still in existence, yet the same writings show that he was the possessor of no small amount of legal knowledge, as also the fact that it was he
at-Law who is not an Inhabitant of this Province. And for shortening Law Suits, and lessening costs, let these rules of Court (established in Monmouth County) take place in all the Courts of this Colony, viz .:
"1-That every man be allowed to appear in Court, and plead his own cause himself, or by his Attorney or both.
"2-That all process be signed by the Clerk.
"3-That all writs of capias be signed underneath on the right hand by the Clerk, and underneath on the left hand by the Plaintiff or his Attorney, or the writ abatable.
"4-Every Plaintiff shall file his declaration in the Clerk's office before or at sitting of the Court to which the capias is returnable, together with the original specialties or other instruments on which the action is grounded, or to be non-suited. And every Defendant shall put his plea into said office, with original papers, if any, within thirty days after said Court, or judgment by default. Where Replication is necessary, the plaintiff shall put his replica- tion into said office within twenty days after the plea is put in, or be non-suited. And when Rejoinder is necessary, the defendant shall put in his rejoinder into said office thirty days before next court, or judgment. When other plead- ings are necessary on either side, they shall be put into said office and issue joined fourteen days before that Court, or be non-suited. And if the Defendant do not appear and stand tryal, the plaintiff shall take verdict by default.
"5-When the parties or their Attorneys are present at the making of any rule of Court, they are obliged to take notice of such rules without further service. But when either party or Attorney are absent, the party or his Attor- ney in whose favour the Rule is made, shall serve the party absent or his Attorney with a true copy thereof, at least eight days before the expiration of said Rule, or to take no benefit thereby.
"6-When any non-resident of the County takes out a writ against an inhabitant, he shall give bail into the Clerk's office to pay the costs if non-suited, or he discontinues or withdraws his suit without consent of defendant.
" 7-In all actions above the value of ten pounds, the defendant shall give special bail if required, except in ac- tions of slander, quare clausum fregit, assault and battery, unless it be otherwise ordered by the Court.
" 8-All persons being lawfully summoned to serve on juries, and not appearing, shall be fined thirteen shillings, four pence, unless they can give a satisfactory reason that they shall excuse 'em.
"9-Every Attorney at his first appearance in any case shall enter his warrant of Attorney in the Clerk's Office.
" 10 -- Every Attorney having undertaken to plead a cause, shall manage the same until it be fully determined (unless discharged by his imployer), or the Attorney shall pay all the costs and damages sustained by his imployer, if the case miscarry thro' his default.
" Dated June 4th, 1813.
" sic subscribetur,
" AMICUS PATRIS."
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who proposed and urged the first revision of the laws of New Jersey.
A number of persons who were attorneys at about that time in Monmouth County might be mentioned, but it would, of course, be impracti- cable to give anything like a full and correct ac- count of the lawyers who practiced in the courts of the county during the period extending from their first establishment to the time when they were re-established under the State constitution and government.
The honorable course pursued by the attor- neys and counselors of New Jersey (including, of course, the members of the bar of Monmouth County) concerning the operation of the odious Stamp Act, ten years prior to the opening of the Revolution, is given by the eminent New Jersey historian, Whitehead, as follows :
" To the members of the Bar the distinction is to be conceded of having been the first to adopt a systematic opposition to the use of stamps in New Jersey. At that day the lawyers as a body were perhaps equal, if not superior, in talents and character to those who at any subsequent period have upheld the honor of the State and of their profession ; and although many of them, rather than countenance a resort to arms to procure a redress of grievances, eventually abandoned the cause of the colonists, yet at the period under consideration- they were deeply interested in the matter at issue, and warmly opposed to the encroachments of power and ministerial influence.
"The unhappy state into which the colonies were thrown by the passage of the Stamp Act had induced several of the leading men of the profession to call a general meeting at Perth Amboy in September, 1765 (the arrival of the stamp papers being then daily looked for), in order to consult upon the adoption of such measures as should indicate their true opinion to the people of the Province, while at the same time they prevented any improper popular com- motions adverse to the authority of the Gov- ernment. The meeting took place, and after a full discussion of the act and its anticipated effects, those present determined, without dis- senting voice, that they would not, as lawyers, make any use of the stamps for any purpose
or under any circumstances, and this was un- derstood to be likewise the intention of most of the gentlemen of the bar who were absent. This was certainly the wisest course they could have adopted; it prevented any immediate collision with the Government; it called for no violation of official oaths or resignation by the function- aries of the different courts, and although it would inevitably operate much to their pecu- niary detriment, yet they had the satisfaction of knowing that it rendered the stamps entirely useless as a source of revenue to the crown.
"The day after the meeting (September 20, 1765) all the practitioners were desired to attend on the chief justice. On their doing so, that officer alluded to a report, which had become current, of his having solicited and exerted him- self to obtain the situation of stamp distributor for the colony; and stated that the impropriety of the act was a sufficient refutation of the charge ; but in order that there might be no doubt on the subject, he declared upon his honor that he had in no way attempted to obtain the office. He then inquired of them whether, should the stamps arrive and be placed at Burlington by or after the 1st of November, as was expected, they would, as practitioners, agree to purchase them for the necessary pro- ceedings in the law ? This they answered in the negative, in conformity with their previous resolution, stating that they would rather have their private interests give way to public opinion ; protesting at the same time against all riotous and indecent behavior, which they . would discountenance, by every means in their power preserving order; while by an absolute refusal to make use of stamps, and other quiet methods, they would endeavor to obtain a repeal of the law. They were then asked if it was their opinion, should the act go into operation, that the duties could possibly be paid in gold and silver? This was also answered in the negative, a conviction being expressed that such payment could not be made even for one year. The Chief Justice then inquired, in the third place, if, in their opinion-as the act required the Governor and Chief Justice to superintend the distribution-he should be obliged to act as distributor, should the Governor appoint
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him to that office? In answer to this, they advised him not to accept the appointment ; the Governor not being authorized by the act to appoint, and if he had that power, he could not enforce acceptance; and moreover they deemed the office incompatible with the official station he already held:
"The communication of these opinions and resolutions drew forth the warmest approbation from the public, but it was to be expected that such an entire cessation of all legal proceedings would not only occasion great confusion in the transaction of business generally, but also excite to the adop- tion of more energetic measures to frustrate the operation of the detested Act, which might leave the people at liberty to pursue their usual voca- tions untrammeled by its provisions. Endeavors were soon made to transact the business of the courts as usual, and censures were cast upon them for refusing to do so. They were well sus- tained, however, in their determination.
" It was stated that, to the lasting honor of the lawyers of New Jersey, it had been and would be said they had set the example as the most de- termined opposers of the oppressive acts of Par- liament. Some of the most learned and judicious had declared that the act was of such a nature, and so curiously fabricated, it would execute itself, and not an American patriot ever fancied that the province could have given such spirited and nhiversal opposition. An expectation of submission had continued almost universal, down to the eve of that fatal day destined for the com- mencement of their slavery ; and every city, town and village upon this vast continent re- sounded with the knell of departing liberty. The merchants could not think of venturing their fortunes in a vessel not protected by a stamped passport ; not a person who held an office under the Crown could think of losing his appointment, and thereby, perhaps, the only means of subsisting himself and family, by opposing an act framed under the direction of the King's Ministry ; not a farmer could bear to think of taking a conveyance for lands without a stamp, when his estate for want thereof was delared void ; nor would he offer to try an action at law, without the same prerequisites, lest his · recovery should be illegal ; in short, the caution
of the merchants, the fears of the public officers, and the ignorance of the common people would undoubtedly have introduced the stamped papers had not the professors of the law (through whose hands most of them must have passed) at that instant stood forth and declared they would not receive them. The colonists were urged to con- tinue in their present state till some decisive in- telligence should be received ; not to call upon the courts to open lest the public peace should be broken ; nor contradict their public petitions for relief by attempting it with their own hands before it should be denied by the mother-country.
"There were, however, among the members of the Bar those who, either from pecuniary or sinister motives, were in favor of ultra measures, and by some of them it was deemed advisable to hold another meeting for the purpose of con- sultation. This convened at New Brunswick on the 13th of February, 1766. The title of 'Sons of Liberty,' first adopted at this crisis by the freemen of Connecticut, was soon assumed by the active citizens of New Jersey. The proceedings of individuals and publie bodies were subjected to the surveillance of these as- sociated patriots, receiving their censure or approbation, as circumstances might warrant, although in a more limited degree than was subsequently the case; the approaching con- vention of lawyers was consequently not over- looked. On the appointed day several hundreds of the Sons of Liberty from Woodbridge and Piscataway, joined by deputies from the western part of the Province, presented themselves at New Brunswick and handed in to the gentlemen of the bar, who were there assembled, a written and united request that they should immediately proceed to business as usual, without stamps, and use their influence to open the courts of justice. After due deliberation, the majority of the gentlemen agreed, in order 'to preserve that happy state of peace and tranquillity which has, by the blessing of God, hitherto been main- tained in this province of New Jersey, to desist from their practice till the 1st day of April next, and if they receive no account from the Parliament before the said 1st day of April, they will, in such case, begin in their practice as usual, or sooner, if earlier accounts are received.'
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They also appointed two of their number to assure the Sons of Liberty, in the name of the whole, that unless the Stamp Act was suspended or repealed, they would join in opposition to it with their lives and fortunes. The course adopted met with the approval of the assembled patriots, thanks were returned and hopes ex- pressed that such an example might be imitated by every gentlemen of the profession on the continent.
" The subsequent repeal of the Stamp Act put an end to all further proceedings; but the firmness, disinterestedness, prudence and pa- triotism already exhibited by the lawyers of that day deserve to be recorded."
On two occasions, in the years 1769 and 1770, the operation of the Monmouth courts was obstructed, and the attorneys driven from the court-house by a mob ; this being the result of a deep and bitter feeling which had existed for many years (but more especially for a com- paratively short time preceding these occur- rences) against the lawyers, on account of alleged abuses practiced by them in promoting lawsuits and increasing the expense of litigation to the highest possible amounts. As early as during the administration of Governor Lewis Morris loud complaints had been made and legislation demanded to correct the alleged oppressive com- bination ; but little attention was paid to the matter by the Governor. The complaints grew louder and more threatening, especially after the Stamp Act excitement, which caused the formation of the society or association called the "Sons of Liberty," and in 1769 many memorials were presented to the Legislature, asking for relief, and worded in language so strong as to show a great and even alarming excitement on the subject.1 The agitation spread through all the province, but was espe- cially strong and bitter in the counties of Mid- dlesex, Essex and Monmouth. That the feeling was more intense in the southwestern part of Monmouth than elsewhere seems evident from the following, relative to threats of violence made by people of that section :
In 1769, Bernardus Legrange, an attorney living at New Brunswick, was complained of to the Assembly for having exacted exorbitant fees. For this he was reprimanded by the Council; but this punishment was mitigated by their publishing, subsequently, letters from Chief Justice Smith and Second Justice Read, stating that Legrange's charges were only such as were customarily made. Soon afterwards a singular anonymous letter, evidently written from the upper part of Monmouth County, ad- dressed to the attorney, was thought to be of sufficient importance to be inserted in the minutes of the Assembly. It was as follows :
"To Bernardus Legrange, Esq., attorney-at-law in New Brunswick :
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