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 38
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Less heinous offenses were treated with mildness, and in all the thirty- six laws enacted by the first Legislature, there is but one specific penalty named, and that was a fine of three pounds for every act of selling strong liquor to an Indian. Perjury was punishable by fine in such amount as the court might decree, and the offender was forever disqualified from being afterward a witness in a court, and from public employment within the Province. Those affronting the public authority were to be fined in the discretion of the court. Personal violence committed upon another was to be punished "according to the nature of the offense," which was to be determined by twelve men of the neighborhood. One guilty of rob- bery or theft was to "restore fourfold, or be made to work for his theft for so long a time as the nature of the offense shall require, or until re- stitution be thereby made fourfold."
Exemplification of the latter curious provision is found in the case of one Wilkes, who was indicted September 10, 1686, in the Gloucester coun- ty court, for stealing goods from a house in Philadelphia. In these days no indictment would lie for a crime committed outside the State or Prov- ince. But no such fine distinctions were made then-the accused was a mem -. ber of the community in which resided the court, and he must answer. The defendant pleaded guilty, but his plea was ignored and he was tried by a jury, which found him guilty. Being fined in the sum of sixteen pounds, which was not paid, the following sentence was passed :
"Sentence : The bench appoints that said Wilkes shall pay the afore- said Lins £16 by way of servitude, viz: If he will be bound by indentures to the prosecutor, then to serve him the term of four years, but if he con- descend not thereto, then the court award that he should be a servant and so abide for the term of five years. And so be accommodated in the time of his servitude by his master with meat, drink, clothes, washing and lodging according to the customs of the country and fit for such a ser- vant.
Tender mercy was the crowning trait of character of the gentle Quaker, and he strove to make the courts of his country, the guardians of his own security, as forgiving as he was in his personal concerns. And, in this spirit, it was enacted by the same early Legislature, that, except in cases of murder, treason, and felony, all and every person and persons prosecuting or preferring any indictment for any personal matters, in- juries or matters criminal, should be master of his or their own process, and have full power to forgive and remit the penalty or punishment in- flicted upon the person or persons who have offended against him or them- selves, as well before as after judgment and condemnation.
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In East Jersey, for several years prior to the surrender of authority by the Proprietors, an acrimonious dispute was carried on between An- drew Hamilton and Jeremiah Basse, rival claimants to the Governor- ship. This .quarrel was complicated, in Monmouth county, with contro- versies as to the respective merits of land titles derived from the Proprie- tors, on the one hand, and under the Nicolls Patent, on the other. These led to grave disturbances in which practically all the people became in- volved (particularly between 1695 and 1702), and during this period the courts were set at defiance and practically abrogated, vi et armis.
At Perth Amboy, May 11, 1699, the Court of Common Right, Gov- ernor Basse presiding, was invaded by Lewis Morris, who denied the au- thority of the tribunal. Morris was ordered into custody, but resisted, making an attempt to draw his sword. He was overcome and fined fifty pounds, and, with George Willocks, was committed to the jail in Wood- bridge in default of bond, to appear before the court at its October term. Whereupon, before daylight, a mob battered down the jail door and re- leased the prisoners.
On March 3, 1700, a mob collected and prevented the holding of a court at Piscataway, also in Middlesex county, by nailing up the doors of the "Publick Meeting-House" in which sessions were wont to be held.
In Essex county, at Newark, September 12, 1700, William Sandford, the President of the County Court, was pulled off the bench, deprived of his hat and wig, and his sword was taken from him and broken. The other Justices and the Clerk were also abused, and their clothes were torn.
In Monmouth county there were also many disturbances, the most serious of which occurred March 25, 1701. On this occasion, Justices Tedediah Allen and Samuel Denness were attempting to hold court at Mid- dletown, in the presence of Governor Andrew Hamilton, and Lewis Morris and Samuel Leonard, members of his Council. The combined array of executive and judicial authority were set upon by the populace, which took them into custody and held them under an armed guard for four days.
The condition of affairs was such as to move Lewis Morris to write to the Lords of Trade: "New Jersie is still without government being without law or gospel, having neither Judge nor Priest."
These times are strange to look back upon. There was unreasonable turmoil, and out of excess grew greater excesses on the part of large por- tions of the people. Out of these conditions, it may be now discerned, was gradually developing that spirit which eventually was manifested in open revolution, and made a pathway for liberty. At various times there were outbreaks throughout the eastern part of New Jersey, down to the
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Revolutionary War period. Courts were in some instances prevented front exercising their functions by mobs whose principal animosity was directed. against the lawyers. It is to be said of this class, in truthfulness, that its members were, for the far greater number, most determined in their oppo- sition to the oppressive acts of the motlier country; indeed, they led all other classes in objection and protest, as when they declared against' the Stamp Act, and practically abandoned a large portion of their business until that instrument was set aside by Parliamentary repeal. But many of the people cherished bitter hatred against the legal profession, whose mem- bers it held culpable for encouraging unnecessary litigation and of exact- ing exorbitant fees. Some lawyers may have been guilty of all that was charged, but the great majority of them were worthy citizens whose in- tegrity and regard for their fellows were beyond reproach. The fact ap- -
pears to be that the people were encumbered with debt, and their creditors resorted to the law to enforce their demands, just in themselves, how- ever oppressive upon the debtors. An unreasonable crusade ensued, which finally ended as all such crusades do end-in the vindication of law and of the agents through whom law is made operative.
While, as has been shown, there was wide difference between the criminal codes of the two Provinces, there was marked similarity in legis- lation affecting material interests. Both began on common ground, pro- vision being made by the proprietors of each, in their first instruments, for the proper recording of deeds.
In 1679, before the creation of the Province of West Jersey, the Leg- islature had made lands (unentailed) liable for the payment of the debts of the owner, and had specified the manner of procedure. In 1682 (after the separation of the Provinces) the Legislature of East Jersey passed an act providing for the recovery of claims against an absconding debtor by collection out of his personal or real estate, and reciting that summons might be made by service of the writ upon any member of his family, or by leaving it at any of his houses or plantations. In the same year, the same Legislature laid down the important rule that no conveyance of the es- tate of a married woman should be valid unless she made acknowledg- ment, in private examination in the court of common right, that the doc- ument was executed by her of her own free will, and without threat or compulsion of her husband.
The second Legislature of West Jersey (in 1682) enacted a law, simi- lar to that of 1679, with reference to the liability of real and personal prop- erty for debt. In 1683 a law was passed somewhat similar to the East Jersey law of the previous year, providing for the collection of debts ow- ing by an absconding debtor, but containing the more equitable provision
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that no attachment should issue until after thirty days' notice, in order that the property to be attached should be equally distributed among the credi- tors who should within that time make proof of the debts owing to them.
In 1702 the Provinces were united under the Crown, and in the fol- lowing year Lord Cornbury came as Governor of New Jersey and New York. He made promulgation of his commission in both of the old Jersey Provinces, at Amboy and at Burlington. He' made New York his seat of government, but returned to New Jersey in November of the year in which he came, and opened the Legislature, at Perth Amboy. The ses- sion continued little more than a month, and the body adjourned Decem- ber 13. Several bills were passed, but only one received the approval of the Governor-one regulating the purchase of land from the Indians. In fact, the matter with which the members of the Legislature were principally concerned was an endeavor to secure to themselves that freedom of debate and action to which they had been accustomed, and the Governor seemed to be more disposed to assert his own authority than to conciliate the people to whom he came.
Yet Lord Cornbury did perform a useful service in providing for the more orderly administration of justice. He wrought no startling inno- vations, but he gave to existing courts an added dignity and permanency, and created such tribunals as, in the nature of things, had come to be nec- essary. In brief, he made of disjointed members a more symmetrical structure.
The work of Lord Cornbury was performed ex cathedra-without the assistance of the Legislature, however much he may have been aided by his Council or other advisers-and it was given promulgation in 1704. The courts which he named, and the powers which he defined, are herein- after described.
Justices' Courts were to have jurisdiction in all cases of debt and tres- pass to the value of forty shillings, and such causes as might be tried and determined without a jury. The method of procedure was minutely pre- scribed.
A Court of General Sessions of the Peace was to be held quarterly each year, in every county, at a place designated. This was a court of appeal in which were heard causes coming up from the Justices' Courts where the amount in question exceeded twenty shillings.
A Court of Common Pleas was to be held in every county where was held a General Court of Sessions, immediately after the adjournment. of the latter named tribunal. It was clothed with power to hear and de- termine all actions triable at common law, subject to appeal in cases where the judgment was for ten pounds or more, or where title in land was in
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question. The court to which appeal was to be made was not designated -presumably it was the Supreme Court which was created by the same ordinance.
A Supreme ("supream" in the text of the ordinance) Court was to sit alternately at Amboy (in old East Jersey) and in Burlington (in old West Jersey), and it was to hold two sessions each year, of not to exceed five days each. This was the most remarkable and comprehensively useful legal body of its day. It was at once the summum bonum of the juris- prudence of the mother country-for it was placed on the same footing with the English courts of Queen's bench, common pleas or exchequer, as to rules of practice-and it was the prototype of the body of the same name of the present day. Indeed, in the language of Judge Field, in his mas- terly dissertation upon this subject. "If the question were now asked : What is the jurisdiction of the Supreme Court of New Jersey, as at pres- ent constituted? the only answer that could be given would be, in the language of the ordinance of Lord Cornbury :
'To hav Cognizance of all Pleas, civil, criminal and mixt, as fully and amply, to all intents and purposes whatsoever, as the Courts of Queen's Bench, Common Pleas and Exchequer within her Majesty's King- dom 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 upward of Ten Pounds, and shall or may, by Certiorari, Habeas Corpus, or any other lawful Writ re- move out of any of the respective Courts of Sessions of the Peace or Com- mon Pleas, any Information or Indictment there depending, or Judgment thereupon given, or to be given, in any Criminal matter whatsoever, cognizable before, or to be given 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 Action or Suit depending, or Judgment given, be upwards of the value of Ten Pounds, or that the Action or Suit there depending or determined, be concerning the Right or Title of any Free-hold.' '
Where so much care was exercised in prescribing the powers of the Supreme Court-the most important body in all the judicial establish- ment, and one. which, in its essential features, was to splendidly survive- it is reason for wonder that the number of judges was not specified, and that no particular persons were named for Chief Justice or for Associate Justices.
Under Lord Cornbury's ordinance were also constituted Circuit Courts. These were to be held once each year in every county, by one of the Justices of the main (Supreme) Court, with two or more Justices. of
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the Peace of the county in which the session was held. The court terms were of two days only.
In all these courts the right in property of a suitor was not to be determined without the intervention of a jury, except in cases where there was an actual confession of the fact by the parties thereto, or in case of default of appearance.
A section of the ordinance establishing the Circuit Court prescribed a considerable degree of state for the reception of the Justice or Justices going to the holding of a session. Every circumstance of the ceremonial was modeled after English usage. The Sheriff, with as many Justices and other gentlemen on horseback as could be conveniently collected, were to await the Judge at the county line, and they were to escort that dignitary to his lodgings. During his stay within a county, the Judge was to be attended by the same personages, together with the Mayor and Aldermen. Daily, at the opening and closing of Court, he was to be escorted to and from the Court by the Sheriff and Constables. In court the Judge wore ( probably beginning in 1702 and continuing until some time after the Revolutionary War) a scarlet robe with deep facings and cuffs of black velvet. He also wore a powdered wig, and this fact led Judge Field to remark that "it is not probable that, like their brethren in England, they considered it necessary to carry four of these indispensable articles-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."
In May, 1765, the Supreme Court made a rule requiring all persons practicing as counsel at the bar, whether before the Supreme Court or in any of the courts on the circuits, to habit himself in the bar-gown and band commonly worn by barristers at Westminster and on the circuits in England, under penalty of contempt, and this rule was observed until 1791, when it was abrogated on petition from leading counselors setting forth its uselessness and troublesomeness. From the beginning, however, counselors of the Quaker faith were privileged to appear in their own cus- tomary garb.
It is not our province to deal with the technicalities of courts and their procedure, but only to write in a manner understandable to the lay- man. And so it is to be premised that the English judicial system, as established in New Jersey under the Colonial government, survived the downfall of that government, and afforded an altogether adequate founda- tion for the law establishment of the present day. Indeed, under the Con- stitution of 1776, when New Jersey became a State, no change was made in the title, jurisdiction or mode of procedure of any of the courts. The
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manner of selecting magistrates was, however, necessarily changed. The Colonial Governors had appointed the various Judges and Justices of the Peace, and this power was now divided between the Legislature and the Governor-the Governor named the Justices of the Supreme Court, sub- ject to the sanction of the Senate, and the Legislature chose the Judges of the Court of Common Pleas and the Justices of the Peace.
In 1844 the order of things was somewhat changed under the Con- stitution adopted that year. The Supreme Court, the Court of Common Pleas and the Justices' Courts remained substantially the same as re- gards jurisdiction and powers. The choosing of Justices of the Peace was relegated to the people. The Common Pleas Judges were to be elected by the Legislature in joint session, but a subsequent statute vested their appointment in the Governor, subject to approval by the Senate. The most important constitutional change was that with reference to the Court of Chancery. Chancery powers resided in the Colonial Governor from about or prior to 1675, and these had descended to the Governor of the State who, as a consequence, must needs be a lawyer. The Governor was now relieved of what had come to be most burdensome duties in this line, by their devolvement upon a newly created officer, a Chancellor, who was to be nominated by the Governor, subject to confirmation by the Senate. In course of time the Chancellor came to be overburdened, and a Vice Chancellor was created, and at the present time there are five officers known by that title. The Chancellor presides in the Court of Errors and Ap- peals, his associates in that body being the Justices of the Supreme Court and six Judges who are appointed by the Governor with the consent of the Senate.
The Supreme Court, as now constituted, comprises the Chief Justice and eight Associate Justices. Circuit Courts are held thrice yearly in every county, the Chief Justice or Associate Justice presiding.
At no time, down to the very present, have the statute books of New Jersey been unsusceptible of criticism. There are instances in which that has been done which could have been better done, or which, perhaps, should not have been done at all; and there are other instances where what should have been done has been left undone. There are instances in which the bench has been occupied by those whose ignorance or inatten- tion have militated for the time against the usefulness of their high office. But, in spite of this, it is to be said, in all truthfulness, that the development of law and of courts in New Jersey has been orderly and progressive- that at no time has it suffered by comparison with its sister States, and, in various instances, it has shone brilliantly in the contrast. Indeed, it is held by the legal profession of the State that not a mistake has been made
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in the selection of the Chief Justice from the organization of the State in 1776 down to the present time. It is impossible, within the range of these pages, to refer to all to whom honor is due for a splendid share in the work accomplished. All that is practicable is to present a brief account which will serve to indicate the development of legal institutions in the State, and to identify some lawyers and jurists who were peculiarly con- spicuous at some important time.
The principal interest centers in the Supreme Court. The first term of that body was held in Burlington November 7, 1704. Roger Mompes- son, who was Chief Justice of New York as well as of New Jersey, pre- sided, and by his side sat William Pinhorne, as Associate Justice. Mom- pesson came to the Provincial bench with high prestige. He was of ex- cellent family ; in England he was well regarded as a lawyer, and he had twice sat in Parliament. When he came to New Jersey he bore a flatter- ing letter from William Penn, who regarded him as peculiarly well fitted for the position to which he had been appointed. Despite all this, he dis- appointed every expectation except, in all probability, that of Lord Corn- bury, with whom he was a favorite, land whose interests he subserved at every turn, as a Member of Council, on the bench and personally. His chief concern as a law officer appears to have been to magnify "My Lord." whose relations with the people were exceedingly unpleasant. Mompes- son seemed to regard himself as a guardian of the fame of his master, and he procured various indictments- in one instance two against the same individual-for the most trifling offenses of speech in criticism of the Governor's political conduct. "The Governor had dissolved the assem- bly, but they could get another as good, and if the Governor liked it not, he might go whence he came; the assembly could have done their business well enough, but that the Governor 'dissolved it, which he was satisfied was because they would not give him money enough." Such utterances were presented as seditious. The Grand Jury ignored these indictments, whereupon the Governor directed the Attorney General to file informa- tions, which he did, and in the identical language of the instruments which had been discredited by the Grand Jury. The trials which followed were after the most summary fashion, and in entire disregard of law and decency. Some of the accused were forced to trial forthwith. In another case, a continuance was granted with the provision that the accused should give security for appearance and to ensure his good behavior and keeping of the peace; and the defendant, failing in compliance, was committed for contempt. In a third case, a trial resulted in acquittal, but before the ac- cused was set at liberty he was obliged to pay the costs of his own prose-
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cution. Mompesson resigned, shortly after the removal of Lord Cornbury from the Governorship.
Mompesson was succeeded by Thomas Gordon, a nonentity as a law- yer, and manifestly useless on the bench. He resigned after a few months, and Mompesson again came to the bench, but he gave way the following year ( 1710) to David Jamison.
Chief Justice Jamison came from New York, where he had been prominent as a lawyer. He was well read in his profession, and was par- ticularly well versed in the Scriptures, from which he quoted freely in charging a jury. He was thoroughly orthodox-according to the stand- ards of his day-and he believed in impeachment of all guilty of any man- ner of heresy, and particularly those practicing witchcraft, an art which he regarded as of veritable and dangerous existence. His utterance upon such topics was, however, a brutum fulmen in the eyes of the lenient Quakers, and in the entire absence of law for the punishment of what were, in his mind, woeful offenses. He soon came into disfavor with the people, and out of this resulted a veritable cause celebre in the judicial annals of the Province and of the country. In this affair it would 'ap- pear that Judge Jamison bore himself with dignity and strict regard to the law. Indeed, the Quakers, famed for their law-abiding disposition, seem to have been those who were in the wrong.
At a term of the Court held in Burlington, in November, 1715, a Quaker summoned to duty as a Grand Juryman declined to take the oath, objecting his scruples of conscience. In this he was amply sus- tained by the provisions of a long existent legislative act privileging men of his class to qualify by affirmation. Against this it was argued by the Crown lawyers that the act of the Legislature had been rendered inopera- tive by a later act of Parliament. The Chief Justice sustained the Quaker, but the Clerk was obdurate and refused to obey his order to administer the affirmation. This prevented the impanneling of the Grand Jury, and worked an entire estoppage of trial proceedings. The Chief Justice de- clared the recalcitrant Clerk to be in contempt of court, and he imposed a fine. At the next term of the court of quarter sessions, the Chief Jus- tice was indicted for this act in maintaining the dignity of his court, and in this he was sustained by Governor Hunter, who acquitted himself fully as manfully as did the Chief Justice. The Governor published a temperate address declaring the facts and law in the case, and procured the removal of the question to the Supreme Court, where the indictment against the Chief Justice was quashed on motion of the Attorney General. Imme- diately following this an order of court was made disbarring Jeremiah
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