History of Monmouth county, New Jersey, Part 49

Author: Ellis, Franklin, 1828-1885; Swan, Norma Lippincott. [from old catalog]
Publication date: 1885
Publisher: Philadelphia, R. T. Peck & co.
Number of Pages: 1148

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ble to remove him, and his wounded comrades report that in a very short time he died. Col- onel Brown well described him as " a brave man, a skillful officer, possessing a keen sense of honor, generous to a fault and of the noblest impulses." And we may add he was a truly religious man. Some time before entering the army he united with the Baptist Church at Hamilton. His body has its resting-place in Fairview Cemetery, Middletown township. Here a comely granite monument, erected by citizens who loved him in his youth and graduates of his university, attests their appreciation of his character and achievements. On the die is the following in- scription :

" LIEUTENANT-COLONEL GEORGE ARROWSMITII.

ONE HUNDRED FIFTY-SEVENTH NEW YORK VOLUNTEERS.

He bore a distinguished part in several severe en- gagements, and fell at Gettysburg gallantly leading his regiment, July 1, 1863. Aged 24 years, 2 months, 13 days.

Erected by ho numerous friends in token of his distinguished personal worth, patriotic devotion and distinguished bravery."

CHAPTER XIII.

THE BENCH AND BAR OF MONMOUTH COUNTY.

THE earliest courts in the territory now form- ing the county of Monmouth were held under authority conferred by Governor Nicolls in the "Monmouth Patent," which provided for the enactment of prudential laws by the people, and the establishment of courts. At first, the laws of local application were passed at town-meet- ing, and others of a more general character by a General Assembly of representatives of the towns, convened at Portland Point,-now the Highlands of Navesink. The first courts in what is now the county of Monmouth were held under authority of the Nicolls patent in 1667. But the Lords Proprietors of East New Jersey did not long permit the patentees and people of the Monmouth settlements to exercise the powers conferred by the patent of the royal

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THE BENCH AND BAR OF MONMOUTH COUNTY.

Governor. The local courts, which had been Shrewsbury."3 The judges were to consist of for a time in operation, had proved themselves at least three of the justices of the peace in the entirely too feeble to quell the disturbances and respective counties, A high sheriff in each disorders of that time, and the power and in- county was now for the first time provided for, fluence of Governor Carteret soon brought about their discontinuance, But in 1675, when the second Proprietary Assembly met, one of its first aets provided for the establishment and maintenance of courts of justice throughout the province. There was to be, in the first place, a monthly court of small causes, for the trial of all matters under forty shilling>. This court was to be held on the first Wednesday of every month in each town of the province, by two

and all processes out of the County Courts were to be dirceted to him. In the court for the trial of small canses, either party could demand a jury ; and so sacredly was that mode of trial held that no man could be denied the benefit of it, even in the smallest matter. A change, too, was made in the name of the Supreme Court of the province. Instead of the "Court of As- size," it was to be called the " Court of Common Right,"-a name not transplanted from Eng- or three persons to be chosen by the people, of land, but entirely new, and peculiar to New whom a justice of the peace was to be one. Then there were the County Courts, or Courts of Sessions, to be held twice a year in every county,1 the judges of which were also to be elected out of the (so-called) county to which the court belonged. These courts were em- powered to try " all causes actionable," and no appeals to be had from their judgments under the sum of twenty pounds, "except to the Bench or the Court of Chancery,"-the term "the Bench " meaning the Provincial Court of Assize, to be hell once a year in the town of Woodbridge, or wherever the Governor and Council should appoint. "This was the Su- preme Court of the province; but from it, appeals would lie to the Governor and Council, and from them, in the last resort, to the King."? Jersey. With reference to this court, the pro- prietors said, in their instructions to Deputy- Governor Gawen Lawrie : " We do require this one thing concerning the Court of Common Right : that it be always held at our Town of Perth [Amboy], if it be possible." Notwith- standing this injunction to the Deputy-Gov- ernor, the Court of Common Right (to consist of " twelve members, or six at the least" ) was organized to be held at Elizabethtown four times a year; and it was not until 1686 that the court was directed to be removed thence, and held at Perth Amboy, the aet providing for the removal declaring "that Amboy is more conveniently situated, near the centre of the province, the most encouraging place for trade and traffic by sea and land, and which will occa- sion great concourse of people." The Court of Common Right was a Court of Equity as well as of Common Law until 1695, when an aet declarative of "the rights and Privileges of Ilis Majesty's Subjects inhabiting within the Province of East New Jersey " provided that the judges of the Court of Comnon Right should not be judges of the High Court of Chancery. " The first ordinance for the establishment of Courts of Judicature in the Province of New

In 1682-83, under the twelve proprietors, the four original counties of New Jersey were erected, and in each of these the County Courts were to be held four times a year. "The County of Monmouth, their Sessions to be the fourth Tuesday in March, in the Publick Meet- ing-House at Middletown yearly. The fourth Tuesday in June in the Publick Meeting-House at Shrewsbury yearly. The fourth Tuesday in September in the Publick Meeting-House in Middletown, And the fourth Tuesday in December, at the Publiek Meeting-House in

1 The "two towns of Navesink," Middletown and Shrews- bury. to be considered as a county, though no counties had then been erected in the province.

? Field's Provincial Courts.

3 The first grand jury in the county, consisting of four- teen persons, met at Middletown on the fourth Tuesday of September, 1687. The first indictment was found, in 1689, against sixteen persons " for horse-racing and playing at nyne-pins on ye Sabbath-Day." The bills were at that time drawn in advance by the prosecuting officer, and sent to the grand jury for their action.

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HISTORY OF MONMOUTH COUNTY, NEW JERSEY.

Jersey," says Field, " was that of Lord Corn- bnry in 1704." It is really gratifying to be able to find a single redeeming feature in the administration of this weak, corrupt and tyran- nical man, who disgraced the sovereign whose representative he was, and dishonored the noble ancestry from which he sprung. But he is entitled to the credit of having laid the founda- tion of our whole judicial system, and of having laid it well. True, the materials for such a work were found in the several courts which existed under the proprietary government ; but he reduced them to order and gave them shape and beauty and proportion. All that has been done from that day to this has been but to fill up, as it were, the outlines which he sketched,

to make some additional apartments to the purposes whatsoever, as the Court of Queen's judicial edifiee which he constructed.

" He gave to justices of the peace cognizance in all cases of debt and trespass to the value of forty shillings, with the right of appeal to the Court of Sessions where the sum in controversy was over twenty shillings. He ordained that there should be a Court of Common Pleas kept and holden in every county of the Province at the place where the General Courts of Sessions were held, and to begin immediately after the Ses- sions had ended, with power to hear and deter- mine all actions triable at Common Law, of what nature or kind soever ; subject to a re- moval to the Supreme Court either before or after judgment, where the matter in dispute exceeded ten pounds, or the title to land came in question."

The General Sessions of the Peace were directed to be held four times a year in every county, at the times and places mentioned in the ! upwards of the value of Ten Pounds, or that ordinance. For the county of Monmouth the , the Action or Suit there depending or deter- places designated were Middletown and Shrews- mined, he concerning the Right or Title of any Free-hold." bury ; the times of meeting were the fourth Tues- days in February, May, Angust and December.

The courts of Monmouth County continued to be held at Middletown and Shrewsbury, al- ternately, until 1713; for about two years after- wards, at Shrewsbury only ; and from November, 1715,1 at Freehold, where they have always since been held.

By the provisions of Lord Cornbury's ordi- nance, above mentioned, a Supreme Court of Judicature was to be held alternately at Perth Amboy and Burlington. At Amboy on the first Tuesday in May and at Burlington on the first Tuesday in November, annually and every year: and each session of the said court to con- tinue for any term not exceeding five days. " And," says Field, "if the question were now asked, What is the jurisdiction of the Supreme Court of the State of New Jersey, as at present constituted? the only answer that could be given would be, in the language of Lord Corn- bury's ordinance," which was as follows: "To have Cognizance of all Pleas, civil, criminal and mixt, as fully and amply, to all intents and

Bench, Common Pleas and Exchequer within her Majesty's Kingdom of England, have or ought to have, in and to which Supream Court all and every Person and Persons whatsoever shall and may, if they see meet, commence any Action or Suit being upwards of Ten Pounds, and shall or may, by Certiorari, Habeas Cor- pus, or any other lawful Writ, remove out of any of the respective Courts of Sessions of the Peace or Common Pleas, any Information or Indictment there depending, or Judgment there- upon given, or to be given, in any Criminal matter whatsoever, cognizable before 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,-Provided always That the .1(- tion or Suit depending, or Judgment given, he

Circuit Courts were provided for by Corn- bury's ordinance, as follows: " And one of the justices of the said Supreme Court shall, once in every year, if need shall so require, go the Circuit, and hold and keep the said Supream Court . . . for the County of Monmouth, at Shrewsbury, the second Tuesday in May . .. Which Justice, when he goes the Circuit, shall in each respective County be assisted by two or more Justices of the Peace, during the time of

1 The first court at the place which is now Freehold con- vened on the fourth Tuesday of November, 1715 .- Judge John Reid presiding ; Thomas Gordon, Attorney-General.

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THE BENCH AND BAR OF MONMOUTH COUNTY.

two days, whilst the Court in the Circuit is the Supreme Court promulgated the following sitting, and no longer." The judges of the rule : . The Court, considering that it is the usage several courts were authorized to establish rules | in England for counselors at law, during term of practice for regulating their proceedings ; and it was also ordained by Cornbury that all issues of fact should be tried by a jury of " Twelve

time at Westminster, and on the circuits through the kingdom, constantly to appear in court hab- ited in robes or gowns adapted to the profession men of that Neighbourhood, as it ought to be ; of the law, and as the introduction of the like done by Law."

" The ordinance establishing the circuits1 re- quired the high sheriff, justices of the peace, the mayor and aldermen of any corporation within the counties, and all officers of any of the courts, to be attending on the chief justice and other justices going the circuit, at his coming into and leaving the several counties, and dur- ing his abode within the same ; and the practice, as it was in England until the introduction of rail- ways, was for the sheriff, with as many justices and other gentlemen on horseback as he could conveniently collect, to await the arrival of the judge at the county line, to which he was in like manner escorted by the officers of the adjoining county, and escort him to the lodgings. At the opening and closing of the court, from day to day, the sheriff and constables, with their staves I of office, escorted him from and to his place of lodging to the court-house, as was indeed the usual custom until very recently. When sitting in court the justices of the Supreme Court wore a robe of office," and commonly a wig, although it is not probable that, like their brethren in England, they considered it necessary to carry four of these indispensable articles,-namely, 'the brown scratch wig for the morning, when not in court ; the powdered dress wig for dinner ; the tie wig with the black coif when sitting on the civil side of the court, and the full-bottomed one for the criminal side.' At May term, 1765,

1 Elmer's Reminiscences.

2 "The costume worn by the judges prior to the Revo- ition was probably assumed by them immediately after ne surrender [1702], when they were first appointed by yal authority. It consisted of scarlet robes, with deep cings and cuffs of black velvet ; bands and powdered wigs, lorned with black silk bags. In summer, black silk gowns ere worn. The lawyers also wore black silk gowns and metimes bands and bags. These official robes were re- med to some extent after the Revolution, but towards the ose of the last century [1791] they fell into disuse." Field.

usage into this Province may tend to advance the dignity, solemnity and decorum of our courts, and have many other useful consequences; It is therefore ordained that no person prac- tising as counsel at the bar (except those of the people ealled Quakers) shall for the future appear at any Supreme Court to be held in this Province, or in any of the courts on the circuits, unless he be habited in the bar-gown and band commonly worn by barristers at Westminster and on the circuits in England, under a penalty of a contempt of this rule.' It continued to be observed until 1791, when the leading counsel- ors presented a petition setting forth that it was found to be troublesome and inconvenient, and deemed by them altogether useless, and it was rescinded."

The Common Law Courts, as established by Cornbury's ordinance of 1704, continned, 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 hek! at and before the Declaration of Independence." Nor did the constitution of 18 14 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 beappointed for that purpose.3

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- long (if ever) enforeed, and lawyers soon made 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 :

because this country is very peaceable and healthy ; Jong may it continue, and never have occasion for the tongne 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 fluence and filled many honorable positions, the Quaker ideas and influence were largely among which was that of commissioner (ap- predominant) provided that in all courts of the pointed in 1676) to adjust and decide some mat- provinee persons of all persuasions might freely ters of difference between the two provinces of appear in their own way, and there plead their | New Jersey. 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

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 hy Governor and Council, were now vested in the Governor, the Chancellor and the six Jndges 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 dnties 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 mecting. Now, the Jus- tices of the Supreme Court, the Chancellor and the Judges of the Court of Errors and Appeals were to be nominated hy 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 l'eace to be elected by the people."

their appearance in the courts. In 1694 the Assembly and Council passed " An Aet for the Regulation of Attorneys-at-Law within the Province," which prohibited justices of the peace, sheriff's and elerks of the courts from acting as attorneys, under penalty of a fine of twenty pounds; and in 1698, Governor Basse was "Of Lawyers and Physicians I shall say nothing, , 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-

At the Monmonth Sessions of March, 1695- 96, " Thomas Gordon was, by the Court, eon- 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 cdueation, but came over from Seot- 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,

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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 bis 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, Ist 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. 290, 318. And if they can keep off the Statute, -31 Il. 8 Ca., and 81 II, 8, Ca. 32,-those families whose lands have been so partedl are to sue and these Gentlemen must settle 'em. Nor can we devise our Lands hy the Com- mon Law,-Inst. iii. C. And if they can bar us the benefit of the Statutes,-32 II. 8 Ca. 1, and 34 II. 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 beir to enter, and these Gentlemen muy 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 ns what Lawstotake 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 lets 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 writing's 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. :

"I-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 issne joined fourteen days before that Court, or he non-suited. And if the Defendant do not appear and stand tryal, the plaintiff shall take verdict by default.

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History of Monmouth county, New Jersey, Part 49

Author: Ellis, Franklin, 1828-1885; Swan, Norma Lippincott. [from old catalog] Publication date: 1885 Publisher: Philadelphia, R. T. Peck & co. Number of Pages: 1148

Author: Ellis, Franklin, 1828-1885; Swan, Norma Lippincott. [from old catalog]
Publication date: 1885
Publisher: Philadelphia, R. T. Peck & co.
Number of Pages: 1148