USA > New Jersey > The New Jersey coast in three centuries; history of the New Jersey coast with genealogical and historic-biographical appendix, Vol. I > Part 37
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The Legislature was in session four days, and during this time it passed four acts, and the first of these was one providing for the uphold- ing of the provincial government. This decreed that any one resisting the authority established by the Lords Proprietors, Justices or any inferior officers, "either in words or actions," should be liable to such fine or cor- poral punishment "as the court shall judge upon the examination thereof." Two other, acts, respectively, (1) required each male inhabitant of six- teen years and upwards to provide himself with a serviceable gun and am- munition for the defence of the colony, and (2) provided for annual meet- ings of the General Assembly. Members of the Assembly who absented themselves, wilfully or without having sufficient excuse were to be fined forty shillings. An assessment of thirty pounds was laid to defray the expenses of government, and this was to be borne proportionately by the towns whose delegates constituted the Assembly.
The most voluminous of the acts was that relating to crimes and mis- demeanors. In reading of this it must be borne in mind, as has been pre- viously suggested, that the lawmakers were providing against such misdoing as they knew of in the old and thickly populated mother country, else we must imagine an impossibly horrible and immoral condition. Many of these provisions were based upon the Mosaic code, and some were given in its iden- tical verbiage. Thirteen offenses were punishable by death-the mode of which was not prescribed-these being murder, arson, rape, infamous crimes, kidnapping, perjury, incorrigible burglary, invading or seizing a town or a fort, highway robbery, incorrigible thieving, witchcraft, and striking or cursing a parent. In the latter case it would appear that a culprit was practically to be permitted to go scot-free, for it was provided that he could only be punished on complaint of or proof made by the parent, "and not otherwise." With reference to theft, degrees short of incorrigibility were recognized and provided for. A stealer of cattle, beasts or goods was to make treble restitution for the first, second and third offenses (the court also imposing such corporal punishment as it might deem proper), after which he was to be sold into servitude for such time as would be necessary
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to work out the amount in which he was mulcted. Without further specifica- tion, it is presumable that after this he was considered: "incorrigible" and was given over to the hangman. Various misdemeanors were specified, and for these penalties were provided. All unruly persons and disturbers of the peace were to be put in the stocks. For profane swearing, a fine of one shilling was imposed, and this was to be divided between the in- former and the country. Drunkenness was characterized as a "beastly vice," for which the fine was one shilling for the first offense, two shillings each for the second and the third, and two shillings and sixpence for each subsequent offense. In default of payment the offender was to suffer cor- poral punishment.
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The marriage rite was also provided for. The act made no reference to the age of the persons marrying, but prescribed that none could marry without the consent of parents, masters or overseers, and then only after the publishing of the banns at some public meeting or in kirk, in the place where the persons lived, or in some particular house, fourteen days before the marriage was to take place. The Governor was privileged to grant license in certain cases. The marriage ceremony could only be performed in some public place, and by none but "approved Ministers" or Justices of the Peace.
Lastly, the Legislature enacted "Concerning taking away of a man's life." that "no man's life shall be taken away under any pretense but by virtue of some law established in this province, that it be proved by the mouth of two or three witnesscs."
The Legislature then adjourned, after a session of four days, to No- vember 3 following. It had made some very salutary laws, and had laid out, perhaps, considerable business for the constable, and perchance for the hangman. But all these provisions were to stand inoperative for want of one all important enactment-one constituting courts wherein offenders were to be brought to trial.
The Legislature met pursuant to adjournment. Owing to political disquietude, little business of importance was transacted, although thirteen acts were passed, and among these was one requiring each town to estab- lish an ordinary, or inn, and another requiring horses and cattle to be branded with a distinctive mark for each town.
This second session, as was the first, was of four days' duration, and it was adjourned November 7. Again, as before, no provision had been made for the institution of courts to carry out legislative mandates, and it was destined that no further legislative body was to assemble until No- vember 5, 1675, within a few days of seven years later.
During this time an extraordinary condition of affairs existed. Under
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the terms of the "Grants and Concessions" the laws enacted by the first Legislature were limited in their operation to the "space of one year and no more unless contradicted by the Lords Proprietors." Hence, during the long period of seven years (less a few days) in which, owing to the disordered political conditions, there were no legislative assemblages, there was not a single enacted law in force in the province.
In what manner justice was administered during this time is only to be surmised. It is presumable, however, that such petty courts as have been spoken of maintained a quasi existence and adjusted small diffi- culties between individuals. Bearing upon this phase of the question it is known that in 1670 disputes as to the payment of quit-rents sprang up be- tween Governor Carteret and some of the early settlers. In this dilemma, Carteret sought to enforce his claims through the courts at Bergen and Woodbridge. These had, however, exercised the simplest magisterial pow- ers, and were found incapable of affording him the aid he needed. Hence he sought to enlarge their jurisdiction, but in this he utterly failed- whether because the magistrates were not sufficiently subservient, or be- cause they simply proved inefficient, does not appear.
The second Legislature assembled in Elizabeth Town, November 13, 1675, pursuant to the summons of Governor James Carteret, but an ad- journment was taken to the 29th day of the same month. Representatives were present from seven towns-Elizabeth Town, Bergen, Newark, Woodbridge, New Piscataqua, Middletown and Shrewsbury. One of the delegates (William Shatlock, from Shrewsbury) refused to take the oath of allegiance to the King and the Lords Proprietors, and was dismissed.
The Legislature was in session until (about) December 9, and it en- acted thirty-seven different laws. The last of these, known as the "Act of Oblivion," might with propriety have been the first, for it took cog- nizance of a long legal interregnum which had existed, and declared an amnesty. This document, in its all-comprehending forgivingness, so well depicts the conditions of the times that it may well be given place here:
"Acts of Oblivion. XXXVII. Whereas divers disorders and dis- turbances have arisen in this Province by reason of some endeavouring and making an alteration of the Government established by the Lords Pro- prietors thereof, by which means several damages, costs and charges have accrued to divers the inhabitants of the same, and the Lords Proprietors having by their last orders given liberty to such as have received such damages, costs and charges to recover the same by due course of law, whereby many actions, quarrels and other differences may arise among the inhabitants, in general, for prevention whereof ; wherefore be it enacted, by this General Assembly, that there shall be an utter abolishiing of all
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actions, tending to recover damages, costs and charges for any action, committed or done against any one within this Province, that hath been a party or any way concerned in the endeavouring and making an altera- tion in the Government here settled by the Lords, any time from the year 1670, until June, 1673, and likewise of all actions tending to recover price for any goods, or labor employed during the same time for the defence of the said Province, excepting such accounts as have been settled and allowed by this Assembly. And be it further enacted by the authority aforesaid, that no contract made with any parties, then in rebellion against the government, or any person of that party, to the use and behoof or maintenance of the said difference against this government, or any per- son belonging to the same, shall be actionable in any court within this Province. And the honoured the Governor and his Council, out of their tender affection to the inhabitants of this Province, is further pleased that it should be enacted, and it is enacted by the authority aforesaid, that all . the inhabitants and members of this Province shall be absolutely and freely pardoned of all the offences whatsoever, capital, or other committed or per- petrated at any time from the aforesaid year, 1670, until the first of June in the year 1673. And for the better preserving of peace and unity, it is also enacted by the aforesaid authority, that all reviling speeches, prac- tices, or intents tending to the disturbance of the amity desired and in- tended, namely all reviling or upbraiding of others with matters of differ- ence whatsoever, remitted and pardoned by the honoured Governor, or abolished by virtue of this act, upon pain of imprisonment during pleasure, fine, banishment, stocking, whipping, any or more of these as upon due examination, all circumstances being first considered, the court of assizes shall judge meet. Provided, that whatsoever hath been recovered by law from any person or persons, or imposed by way of fine or otherwise at . any court or courts within this Province to this present sessions, shall stand good and not be discharged or made void by this act."
This Legislature also specifically re-enacted the major portion of the laws passed during the session of 1668, and it was the practice for some years afterward for the Legislature to renew existent laws for the ensuing year.
In the session of 1676 (October) was passed an act designating a day of public thanksgiving, of which the following is the text :
"X. Whereas there hath been signal demonstration of God's mercy and favour towards us in this colony, in the preserving and continuing our peace in the midst of wars round about us, together with many other mercies which we are sensible of, which call aloud for our acknowledge- ment and thanksgiving to the Lord,
"Wherefore be it enacted by this Assembly, that there be a day of publick thanksgiving, set apart throughout the whole Province, to give God the glory and praise thereof, and oblige us to live to his praise, and
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in this fear always, which day shall be the second Wednesday in November. next ensuing."
These are digressions, interesting and timely enough, but we must re- cur to our proper subject.
The first law) enacted by the Legislature of 1675 was one providing for the creation of courts with well defined jurisdiction and clothed with necessary powers, and in this law is contained the first mention of counties, but without designation of their bounds. The preamble recites that "hav- ing taken into serious consideration the great Change that hath been oc- casioned by a Necessity of keeping Courts within this Province, as also the Necessity that Courts of Justice be maintained and upheld amongst us, which said courts may go under the Denomination of County Courts," and enacts that "there be two of the aforesaid Courts kept in the year in each respective County, viz: Bergen and the adjacent Plantations about them, to be a County and to have two Courts in a year, whose sessions shall be the first Tuesday in March and third Tuesday in September; Wood- bridge and Piscataqua to be a County and to have two Courts, the first of them the third Tuesday in March and on the second Tuesday in Septem- ber. The two towns of Nevysink (in what became Monmouth county) to make a County, their sessions to be the last Tuesday in March and first Tuesday in September."
In these courts (County Courts of Sessions) the judges were elected by the people and from themselves. They were clothed with power to try . "all causes actionable," which included both civil and criminal cases. There were, however, no laws or rules prescribing their mode of precedure, nor any code of practice. Appeal could be taken from these courts where the judgment amounted to twenty pounds or more, to the "Bench" of "Court of Chancery." This tribunal is not specifically identified, but it is taken to be the "Court of Assize," which was also created by the Legislature during the same session. This was to sit each year in Woodbridge, or elsewhere as the Governor and Council might direct. From the decision of this court appeal might be taken to the Governor and Council, and finally to the Crown. The "Court of Assize" was also one of original juris- diction.
Somewhat out of the order, it is to be said that the present Justices' courts grew out of enactments by the Legislature, in the establishment of courts for the trial of petty cases. The judges were to be two or three, as the people might deem proper; they were to be elected, and one must be a Justice of the Peace. Sessions were to be held monthly in each town, and jurisdiction extended only to cases involving a sum less than forty shillings.
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Such were the courts existing in East Jersey until 1682, in which year the province was divided by act of the Legislature into the four coun- ties of Bergen, Essex, Middlesex and Monmouth. In that year it was decreed that the county court in each county should sit four times each year. The judges were to be the Justices of the Peace. Grand juries were to appear at the sessions of county courts, but the manner of summoning: them and the precise nature of their duties were left undefined. This original form of county court was what is now the circuit and common pleas court. It was in 1682, also, that the "Court of Alssize" (the supreme court of the province), came to be known as the "Court of Common Right," composed of "twelve members, or six at least." This was to hold. quarterly sessions each year in Elizabeth Town, but in 1686 Perth Amboy was made the court town.
In 1682, also, the Legislature provided specifically for trial by a jury of twelve men, "as near as may be peers or equals, and of the neighbor- hood where the fact arises." In cases capital or criminal, there was to be a grand inquest to first present the offense, and then twelve men of the neighborhood were to try the offender, to whom "reasonable challenges" were to be allowed. At the same session a law was enacted which con- tained some provisions worth noticing. If a man borrowed an animal of his neighbor, and it was hurt or died, the owner not being with it, the borrower was to make good the loss; if the owner were with it, or it were. hired, then the user was not liable. Whoever should afflict the widow or fatherless was to be punished "according to the nature of his transgression. Of the estate of a "murtherer," after the payment of debts, one-third was to go to the next of kin of the man slain, and the remainder to the next of kin of the criminal. A man absconding with the wife of a neighbor (without his consent) was to receive ten lashes upon the bare back, and the woman was to receive similar treatment.
The practical operations of the courts thus created may be discerned from the rules laid down by the first County Court of Middlesex county, held at Piscataway, June 19, 1683 ; prescribing the mode of precedure :
"The First County Court held at Piscataway June ye 19th, 1683, * by act of the Generall Assembly and by virtue of a Comition then published under the seal of the province and signed by Order of Coun- cil of Thos. Rudyard bearing date ye 28th of March, 1683.
"The members of the sd Court were as followeth: Mr. Saml Den- nis, President or Judge, Mr. Edward Slater, Mr. James Giles, Captn John Bishop, Mr. Saml Hall, Mr. Benjamin Hall, Assistants.
"John Pike Junr of Woodbridge Clerk of the County Court allowed by virtue of a Comition from the Hone Governor & Councill bearing date the 28th day of March Anno Dom, 1683, & allowed by the said Court.
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"Jefory Maning made choyce of and appointed to be Marshall or Cryer of the sd Court.
"June the 19th 1683. Rules or Order for the County Court of Midlx.
"Ily That the Declaration shall be entered at the taking out of the writt ; or at least the Declaration to be entered in the Clerks office five days exclusive before the court.
"2ly That the Pleas of the Defendnt be entered two days before the Court : if not the Plaintf not to be deprived of his trial before that Court;
"3ly If the Declaration be not entered five days before the Court, then the defennt desiring it shall have a non suite;
"4ly That to the County Court there shall not be allowed more than one Essoine.
"5ly That in causes wherein the defent is arrested in accout of Debt, Detinue trespass for goods actions upon the case Except Slander; If the Debt or damage amout to five pounds Speciall Baile to be given except it be against an heir, executor or administrator ;
"6ly That in battery, conspiracy false imprisonment noe spetiall baile of course without spetiall order of the Court;
"7ly Spetiall baile in all cases of causes above mentioned shall be understood double the debts or damages demanded, laide or recovered : Comon baile tenn pound.
"Sly that the principle rendring himself at any time after baile put in, and before or on the day of appearance of Scierifacias returned in bill or in case there be any action of debt brought upon the bond or recognizance against the baile if the principle shall render himself upon or before process returned served no further proceedings to be against the baile.
"gly In case the plan of after ishue shall refuse to goe to triall the next Court after the Ishue joyned nor shall discontinue his action on rec- ord the defendant mouving the Court to proceed may bring on the case by provisoe, and if the plaintf be nonsuited at trial or discontinue his action the defendnt shall be allowed reasonable costs by ye Court."
That courts were operative at this time is evidenced by the records. In 1683 one William Towns, of Woodbridge, for an assault upon a woman, was indicted, convicted and sentenced to receive thirty-nine lashes. In the following year, in the same place, William Ingle was placed in the stocks for "breach of his Majesty's peace;" Matthew Moore, indicted and found guilty of "speaking reproachful words against the authority" was fined three pounds; and, in numerous cases of theft, the culprit was fined in a sum double the value of the property taken. Somewhat later ( 1729) a negro man named Prince was convicted of the murder of William Cook, and sentenced to death by burning, and the sentence was put in execution only two days later.
Beginning in 1681 the (then) two Provinces of East Jersey and West Jersey conducted separate governments, and this continued until 1702, when the two provinces were united under Queen Anne.
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From the first, the edicts of the Proprietors of West Jersey bore the impress of Quaker fairness and leniency. The authorship of the "Con- cessions," which appealed to and attracted so splendid a class of people as came into the settlements, has been attributed to William Penn, and it were certainly worthy of him. This remarkable paper, a veritable De- claration of Independence, declared that "no man nor number of men upon earth have power or authority to rule over men's consciences in religious matters; therefore it is agreed and ordained that no person or persons whatsoever within the said Province shall at any time hereafter, in any way or upon any pretense whatsoever, be called in question, or in the least punished or hurt, either in person, privilege or estate, for the sake of his opinion, judgment, faith or worship, in matters of religion." The gov- ernment was vested in Commissioners appointed by the Proprietors, who were to exercise their powers in accordance with the Concessions, and under direction of a major portion of the Proprietors. Among the duties devolved upon them were a supervision of the courts; to provide for the due discharge of their duties by the law officers, whom they were authorized to remove in the event of their failing in their duty. No oath was to be taken by a public officer, but he must give his solemn promise to truly . and faithfully discharge his trust, and, in case of violation of this obliga- tion, he incurred fine or punishment, and was to be declared incapable of holding any office in the colony. Not even a witness before a court of justice was required to be sworn; his testimony was received upon his solemn affirmation, and concealment of the truth or false evidence ren- dered him liable to a fine and inhibited him from ever being accepted as a witness or of ever holding a public office.
The term of office of these Commissioners was to expire on a given date, when, and annually thereafter, until the election of a General Free Assembly, their office should be filled by "ten honest and able men to be elected by the proprietors, freeholders and inhabitants."
The Concessions moreover provided for the election of one hundred persons who should constitute the "general, free and supream assembly of said Province," which body was empowered to make all laws necessary for the well government of the Province, provided that "the same be as near as may be conveniently, agreeable to the primitive, antient and funda- mental laws of the nation of England;" provided also that "they be not against any of those our Concessions." Power was also given to the As- sembly to create courts of law, and to define their powers and jurisdiction, and to appoint the judges and officers of the same, and fix their compen- sation.
The first "General Free Assembly" (as it was termed in the Conces-
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sions) convened at Burlington, November 9, 1681, and it continued in session until the 28th day of the same month. Great care was exercised in framing a lengthy paper termed "Fundamentals," or what might prop- erly be called a Bill of Rights. In the preamble the Legislature, speaking; for the inhabitants whose representatives they were, declared themselves. "a people whom it hath pleased God to bring into the Province of New Jersey and settle us here in safety, that we may be a people to the praise and honor of his name, who hath so dealt with us." In its terms the docu- ment was intended to safeguard the rights of the people, and seven of its. ten clauses were restrictive of gubernatorial authority.
It is curious to note, in the enactments of this Legislature, various references to courts, while no provision is made for the creation of any such tribunals. The verbiage would lead to the inference that such al- ready existed, presumably with meagre powers. The second of the acts requires the Governor and Commissioners to see that "all courts estab- lished or to be established" shall execute their duties properly, and another act declares that no one shall be deprived or condemned of life, limbs, liberty, estate, property, "or any ways hurt," without a "due tryal and judgment passed by the twelve good men and lawful men of the neighbor- hood first had according to the laws of England." And yet another act makes a curious jury provision, setting forth that there shall be in every court three justices or commissioners, at least, who shall sit with "the twelve men in the neighborhood, and with them to hear all causes, and to assist the said twelve men of the neighborhood in case of law, and that the said justices or commissioners shall pronounce such judgment as they shall receive from and be directed by the said twelve men, in whom only the judgment resides; and in case of their neglect or refusal, that then one of the twelve, by consent of the rest, shall pronounce their own judg- ment as the justices or commissioners should have done."
The penal code was remarkably lenient, and in this regard it was strangely dissimilar from that of East Jersey, with its many penalties drawn from the harsh Mosaic law, and its prescription of the death penalty for thirteen separate crimes. In West Jersey laws there was actually no death penalty provided, for whatever cause, and during the Quaker regime, but one year short of a quarter-century, there was not a single indictment drawn for murder or arson. Indeed, there was no tribunal in the Province which could take cognizance of a capital offence until 1699, when the court of oyer and terminer was created, its judges being: one appointed by the Governor, and two or more justices of the county wherein the crime was committed. In case of conviction, the penalty was designated by the Gov- ernor and Council.
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