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 39
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Basse, one of the attorneys who had particularly busied himself to procure the indictment thus dishonored.
Jamison was retained in the Chief Justiceship by Governor Burnet, (who succeeded Hunter) under whom he served for about four years, when he was removed from office. His manner of retirement was in no way a reflection upon his ability or integrity, but was due entirely to the inconvenience to which suitors were subjected owing to his constantly maintaining his residence in New York.
William Trent was Speaker of the Assembly when he was called to the Chief Justiceship in succession to Jamison. Although not a trained lawyer, he had served most acceptably as a Judge in Pennsylvania. He died in 1724, only nine months after his coming to the Supreme Bench, and his death was regarded as a public calamity. His name survives in that of the present capital of the State, the site of which he purchased in 1714, and upon which he built his home in 1721. The little hamlet then existing was known as Littleworth, but after his coming it was called Trent's Town, and this was soon changed to Trenton.
Robert L. Hooper was a Member of the Assembly when he was ap- pointed by Governor Burnet to succeed Trent as Chief Justice. He was a man who was held in high esteem, but there is nothing particular of him of record during his three years incumbency of the office. He was suc- ceeded by Thomas Farmer, who, while acting as Chief Justice, also served as a member of the Legislature, a not unusual occurrence in those days. He became demented, and was placed in confinement. His term of service extended from March, 1728, to November, 1729, when Hooper was re- seated in his stead.
In 1738 Robert Morris succeeded Hooper as Chief Justice. He was a son of Lewis Morris, whom he closely resembled in some of his mental characteristics. A young man when he came to the bench, his service covered the long period of twenty-six years. He is regarded as one of the best equipped jurists of the pre-Revolutionary times. He entered upon his duties with a rather ambitious spirit, and introduced some salutary in- novations, reducing pleadings to stricter rules, and introducing a stricter regularity and precision in forms of procedure. He was lacking in per- sistency, however, and eleven years later he visited England, and was ab- sent about five years. When he returned he came as Governor of Penn- sylvania, as well as Chief Justice of New Jersey. He tendered his resig- nation of the latter named position, but it was not accepted, and after two years he resigned the Governorship and gave his entire attention to his judicial duties. This was but for a brief period, however, for three years later he again went to England. During his absence and without regard
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to the terms of his commission, which read "during good behavior," Will- iam Aynsley was appointed to the office and took his seat, but soon died. Soon afterward, Nathaniel Jones came with a commission as Chief Jus- tice, but (1759) Morris had returned and was on the bench. Jones' com- mission was read, and a debate ensued as to its validity, David Ogden and Charles Read arguing in favor of Morris, who took no part. Associate Justice Samuel Neville decided that Morris had first right, and that Jones must seek his remedy in another court. Jones abandoned his case at this point, and Morris held his scat until 1764, when his death occurred, with- out a moment's warning, while he was dancing in the house of a friend in Shrewsbury.
Samuel Nevill, who was an Associate Justice with Morris, was an En- glishman by birth, a man of unsullied character and of pre-eminent ability, and of such American spirit that, as Speaker of the Assembly, he led that body in its antagonism toward the Governor. It was this, presumably, that led Morris to oppose his appointment to the Chief Justiceship as one "unfit to be trusted in the principal seat of justice." Nevill, whose work as a literateur is written of elsewhere in this work, left a splendid monu- ment to his own memory and conferred upon the legal profession in New Jersey a boon for all time, in his two-volume compilation of the Acts of the Assembly from 1702 to 1762.
Morris was succeeded by Charles Read, who served only a few months. His successor was Frederick Smyth. Smyth was the last of the Colonial Supreme Court Justices, his term beginning in 1764 and ending in 1776, when he removed to Philadelphia. He served in troublous times, and, a pronounced loyalist, his pathway was anything but pleasant. At the beginning he became involved in the Stamp Act troubles, but he made his escape from this predicament by holding (on the advice of lawyers at his bar) that he was not chargeable with the delivery of stamps, without which no process were legal, and he closed his court. When the "Gaspee," a British vessel, was burned by Rhode Islanders, Smyth was made one of a committee to investigate the occurrence, and, with his colleagues, he came minder sharp condemnation by the Continental Congress, which is- sued an address declaring that a court (the body referred to) had been es- tablished to take colonists to England for trial. He urged that bills of indictment be brought against various citizens for alleged treasonable con- duct, but his recommendations went unheeded by the Grand Juries.
The immediately pre-Revolutionary Associate Justices-David Og- den and Richard Stockton-were men of strong and immaculate charac- ter. Ogden, an ardent loyalist, was deeply conscientious, an able lawyer and a splendid jurist. But politically he was entirely at variance with the
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populace about him. He was so positive of the failure of the Revolution that he drew up a plan for the government of the Colonies after they should have been subdued. This embraced an American Parliament, with a House of Peers composed of barons created from among the inhabitants.
Richard Stockton was one of the ornaments of his time. A splendid scholar, he was also a profound lawyer and an incomparable jurist. One of the most useful acts of his conspicuously useful life was his inducement of the revered Witherspoon to accept the Presidency of the College of New Jersey, and these two great men subsequently sat together in the Continental Congress, and they were the first two of the New Jersey dele- gates to affix their signatures to the Declaration of Independence.
The Provincial Congress of New Jersey, which convened in Burling- ton June 10, 1776, provided for the election of Supreme Court Justices by the joint meeting and Richard Stockton was fixed upon for Chief Justice, but he declined. John De Hart was then chosen, and he accepted, but failed to serve. The Associate Justices chosen were Francis Hopkin- son and Samuel Tucker-the former named would not serve, and Tucker was the only active Judge. Tucker was no lawyer, but he occupied various important public offices, and was President of the Provincial Congress at the time of the adoption of the Constitution. He accepted British protec- tion papers at a time when his integrity as Provincial Treasurer was in question, and he has gone down into history as a renegade to his country.
But little business was transacted by the Supreme Court during the Revolutionary War-certainly none to claim a place in history -and that needs brief attention. Robert Morris (a son of the former Chief Justice of the same name) was Chief Justice from 1777 to 1779. His associates were Isaac Smith and John Cleves Symmes. Smith was a physician, and without legal education, but he served with credit upon the bench from 1777 to 1803. Symmes served as a Justice only about a year. He saw active military service during the Revolutionary war, and was also a dele- gate to the Provincial Congress, in which body he served upon the com- mittee which drafted the Constitution. In 1788 he was appointed to a Federal Judgeship-in the Northwest Territory, and it is claimed for him that he made the first settlement between the Miami rivers in Ohio. He was father-in-law of President William Henry Harrison.
David Bearly, a lawyer of Monmouth county, who had served with some distinction in the Continental army, became Chief Justice in 1779 and he resigned after ten years' service. He was a man of great natural ability and uncompromising integrity. He was the first high jurist in , the State to maintain and affirm the right of the Supreme Court to con- strue the Federal Constitution, in face of an almost general conviction on
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the part of lawyers that English law principles should prevail, which do not permit a law court to determine the constitutionality of legislative acts. He was a member of the bodies which framed the original Federal and State Constitutions.
James Kinsey, who became Chief Justice in 1789, and sat on the bench for fourteen years, was a capable lawyer and particularly well versed in real estate law. His decisions (largely with reference to the latter department of law) form the first volume of law reports ever pub- lished in New Jersey.
Andrew Kirkpatrick was without doubt one of the most brilliant men who ever came to the Supreme Bench. Of Scotch Presbyterian parent- age, he was designed by his father for the ministry, and after completing his literary education in Princeton College he devoted six months to the study of divinity. Becoming satisfied that the ministry was not his proper field, he determined to study law, greatly to the disappointment of his father, who, refusing to countenance or aid him in his purpose, actually banished him from the parental home., The young man procured some means through service as a teacher, and entered the office of the distin- guished William Paterson, under whom he was prepared for the profes- sion of the law. He began practice in Morristown, but lost his library by fire and removed to New Brunswick. He became an Associate Supreme Court Justice in 1798, and six years later he succeeded Kinsey in the Chief Justiceship, and he was twice reappointed. He was a man of deep legal learning, and he made many enduring additions to legal literature in his decisions. It is quite curious to note that he was, in 1799, the author of a law enacted by the Legislature which forbade the use in any court in the State of any law book, digest or law reports published in Great Britain after the Colonies had declared their independence. Largely through his effort the office of Supreme Court Reporter was created, and he secured the appointment of William S. Pennington, who was an Associate Justice, as the first to serve in that position. His first reports filled two volumes, and were followed by two volumes by Southard, and eight volumes by Halsted. Justice Kirkpatrick's decisions are contained in all of these, and they occupy all of the two volumes first named.
Chief Justice Kirkpatrick is justly regarded as one of the most ac- complished jurists who ever graced the bench, possessing every requisite faculty-a logical and discriminating mind, keen analytical powers, and capability to express his argument and deductions with such clearness that misunderstanding by lawyer or juror were well nigh impossible ... One of his decisions (Arnold vs. Mundy) has been characterized as a model of research, covering not only close analysis of the immediate law. appcaled
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to, but also diligent inquiry into the relations subsisting between the peo- ple of the Colonies and the Lords Proprietors, and between them and the Crown. The cause was exhaustively argued by the most capable lawyers of the day. The question at issue involved fishery rights on all the tide- waters of the State, and its determination is a basic principle of fishery rights in all New Jersey to the present time-that no owner could hold exclusive right to a fishery fronting his land on tide-water; that the land title from the Lords Proprietors could convey fee only to low water mark, and that the people had equal right to the oysters with the owner, not- withstanding the bed was of his planting.
Chief Justice Kirkpatrick served in his high office for the long period of twenty-one years. The Legislature declined to again re-elect him, and this was probably due in some degree to the antagonism of some at the bar, who, in his later official years, deemed him somewhat arbitrary. It is pleasant to record with reference to this, that one of his strongest sup- porters at this time was one who had some reason for complaint against him-Charles Ewing, who became his successor. Justice Kirkpatrick was a man of unaffected piety, and deeply devoted to furthering religion and education. He was the founder of Princeton Theological Seminary, and he was for many years a Trustee of his alma mater, Princeton College.
Serving at various times as Associate Justices with Chief Justice Kirkpatrick were William S. Pennington, William Rossell, Mahlon Dick- erson, Samuel L. Southard and Gabriel H. Ford, and all these except Ros- sell and Ford served at one time or other as Governor.
Justice Pennington descended from that Ephraim Pennington who came to Newark (probably from Connecticut ) in 1666. He served with distinction during the Revolutionary War, and was subsequently a Mem- ber of the Assembly while he was a law student. In addition to compil- ing the reports heretofore referred to, he wrote a treatise on practice in the lower courts, an excellent volume which was until within a half cen- tury respected as entirely authoritative in the lines upon which it treats. Under appointment by President Madison he succeeded Robert Morris as Judge of the United States District Court of New Jersey, and after his death, his successor in that office was William Rossell, who had also served as an Associate Supreme Court Justice.
Justice Dickerson, also an Associate Justice with Chief Justice Kirk- patrick, served on the State bench but two years, and while he was a capa- ble judge he made no noticeable record in that position. For a brief time he served as United States District Judge, having succeeded Judge Ros- sell. He served. in the Assembly and in the United States Senate. and
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he held the portfolio of the Navy Department under President Andrew Jackson, having previously declined the mission to Russia.
Associate Justice Southard lived a life of rare usefulness. He was graduated from Princeton College when he was little more than seventeen years of age, and in 1811 he entered upon the practice of law in Hunterdon county, New Jersey. In 1815, with Joseph Hopkinson, he appeared before the Assembly to argue the right of Aaron Ogden and Daniel Dod under a State statute with reference to steam navigation between New Jersey and New York, and his effort drew immediate and favorable attention to him. In the following year he was elected to the Assembly, and while serving as a member of that body he was elected an Associate Supreme Court Justice. He served in that position for five years, during which period he was also Reporter. The bench was not to his liking, however, and in 1821 he was elected to the United States Senate. It is interesting to know that the widely famed Missouri Compromise resolutions which were introduced by Henry Clay were drafted by Mr. Southard, who was to present them in the Senate, a course from which he was dissuaded by Mr. Clay, who (leemed it most suitable that he himself should give them first presentation in the House of Representatives, of which he was then a member. Mr. Southard, as a member of the joint committee which reported this historic paper, had the strange fortune to meet, as a fellow member of that body, his own father, who was then a Representative in Congress.
The subsequent career of Mr. Southard (the junior, and late Asso- ciate Justice), was most brilliant and useful. He became Secretary of the Navy under President Monroe, and was continued in that position by President Adams, and during these years he was also at times Acting Secretary of the two Departments of War and the Treasury. In 1829 he was appointed Attorney General of the State, and in 1832 he was elected Governor. In his first (and only) message to the Legislature he took occasion to express his approval of the celebrated proclamation of President Jackson with reference to the South Carolina nullification meas- ures. In 1832, three months after his election as Governor, he was elected to the United States Senate. He was re-elected to that body in 1838, and in 184I he was elected to its pro tempore Presidency. Shortly afterward President Harrison died and was succeeded in the Chief Magistracy by Vice-President Tyler, and this made Mr. Southard practically Vice-Presi- dent of the United States. His death occurred a few months later.
Charles Ewing, who succeeded Kirkpatrick in the Chief Justiceship, served about six years, dying in the first year of his second term. He was surprisingly industrious, and gave as careful attention to a petty case as he would to one of great magnitude. One case which he adjudicated
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(that of Hendrickson vs. Decow) was one which may be now seen in a humorous light, but was a very serious affair then. It involved property interests claimed by both the bodies into which the Quakers had divided -- the Hicksites and the Orthodox Quakers-and the opposing elements were as bitterly antagonistic as that truly Christian people could be, while those not of their faith had very generously taken (in sympathy) one or the other side of the quarrel. The Chancellor, before whom the case had been brought, was incapable of sitting as Judge, having been of counsel for one of the parties to the suit, and he called Chief Justice Ewing and Associate Justice Drake as Advisory Masters in Chancery. The testi- mony. which filled two large volumes, covered not only all facts pertain -. ing to the tract of land in question and the respective claims of the antag- onists, but also the entire history of the Quaker sect-its origin, its in- stitutions, its customs, and all things connected with it. Arguments were made by the most eminent lawyers in the State, a week being consumed in this alone. Chief Justice Ewing confined himself closely to the legal as- pects of the case as touching the property at issue, and in so dispassionate a way as to absolutely forbid the idea of his having any other purpose than to apply the law with absolute impartiality. But Judge Drake, a good lawyer and excellent man, ventured upon the terra incognita of theological distinctions between the two elements, and so provoked the antagonism of the Hicksites that they combined with his political opponents and com- passed his defeat when he was presented for re-election.
Joseph C. Hornblower came to the Supreme Court as Chief Justice in 1832 and served for two terms. He had begun his professional life in Newark, and was known as a most capable lawyer, and particularly suc- cessful in the trial of causes and before a jury. As a jurist he was indus- trious, and his mental processes were rapid. His decisions from the bench, contained in the various volumes of the New Jersey Reports, were marked by learning, legal acumen and high moral principle. The latter fact was well evidenced in his decision in 1856 that there was no constitutional power in Congress to enact a fugitive slave law, and the reversal of that decision in nowise diminished his conviction of right in the premises. He handed down various decisons, some of which became foundation princi- ples in New Jersey law. In one of these he held that no challenge of a juror could lie because he had formed or expressed an opinion of the case on trial. unless that opinion found expression out of ill will or malice toward the accused-a proposition which would be viewed with consternation in some States where the faintest semblance to an opinion by a talesman acts as a bar against his serving. He had no patience with a plea of moral in- sanity as affording immunity from punishment to the deliverer of a fatal
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blow, and in face of his decision upon this point it were scarcely worth while for one accused to attempt such a plea at all.
Judge Hornblower was a member of the Convention which framed the Constitution of 1844, and he aided largely in the making of that im- portant document. He received from the College of New Jersey the de- gree of Doctor of Laws, and he was appointed to one of the chairs in the short-lived law school of that institution. One of his daughters became the wife of Associate Justice Joseph P. Bradley, of the United States Su- preme Court.
William L. Dayton was the youngest man who ever sat upon the Supreme bench, but his term of service was short, and his judicial career is entirely overshadowed by his brilliant political achievements. He was a native of Somerset county, and a graduate of Princeton College. He read law under the eminent Peter D. Vroom, and began the practice of his profession in Freehold. He became an Associate Justice of the Supreme Court in 1838, when twenty-one years of age, and he left the office in 1841. During this brief period he displayed those qualities which mark the careful and safe Judge, whose mental processes were rather founded upon the application of correct moral principles than upon the technical traditions of the law.
In political life Mr. Dayton made himself known throughout the nation. In 1837, when twenty years old, he was elected to the Legislature, and during his service in that body he contributed materially to the ad- vancement of jurisprudence in the State. As Chairman of the Judiciary Committee he approved and carried forward to enactment the law creating Circuit Courts in the various counties as drafted by Alexander C. M. Pennington. From the Legislature he went to a seat upon the Supreme bench. Under appointment by Governor Pennington, he succeeded Sena- tor Southard (deceased) in the United States Senate, and when the Legisla- ture assembled he was duly elected to the Senatorship, and served until 1851, acting with the Whig party. During his Senatorial term his conduct was marked by self-possession and discretion, but when the occasion demanded he rose to the necessities of the case, ably confronting the most capable of his opponents. He aided in the formation of the Republican party, and was its Vice-Presidential candidate with General John C. Fremont in 1856. In 1857 he became Attorney General of the State, appointed by Governor William A. Newell, over such distinguished men as Frederick T. Frelinghuysen and Cortlandt Parker. In 1860 President Lincoln ap- pointed him to the mission to France, and in that position, in face of what appeared to be insuperable obstacles, he accomplished splendid results for his country, succeeding in neutralizing to large degree the aid which the
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French government felt disposed to afford to the Southern Confederacy. Mr. Dayton died in November, 1864, before the close of the Civil War in America, but when the approaching end was clearly discernible.
A peculiarly interesting character was Associate Justice James S. Nevins, who came to the bench in 1838 and served for fourteen years. He was a man of considerable legal ability, and his honesty was unquestioned, but his disagreements of opinion with his associates were many. He was "a fellow of infinite jest," ever good natured, delighting in social - com- panionship, and was the life of the company. At times his quippery was not altogether dignified, and placed him in a position where awkward explana- tions were necessary.
Among the Associate Justices of this period was Joseph F. Randolph, who handed down a decision involving riparian rights whch established a foundation principle in New Jersey law touching that subject. In addi- tion to performing much useful service upon the bench and as a member of Congress, he assisted in the revision of the statutes in 1855, under ap- pointment by the Legislature. He was offered an honorary degree by the College of New Jersey, but for some reason he declined acceptance.
In 1846 Henry W. Green came to the bench, succeeding Chief Justice Hornblower. His services as a jurist reflected honor upon himself and were highly advantageous to the people and to the bar during the long period of fourteen years on the Supreme bench, and nearly a full term afterward as Chancellor. His retirement from the latter position was by resignation necessitated by ill health. He was one of the most capable men who ever graced the high position of Chief Justice-an accomplished lawyer, of really judicial temperament. In charging a jury he was ex- haustive in laying down the rules of law, and so precise in their state- ment that his meaning was incapable of misconstruction. His decisions were models of language and law statement, and have been frequently cited in British as well as in Anierican courts. He gave zealous support to educational and religious institutions, notably to Princeton College and the Princeton Theological Seminary. He was of unassailable personal character, but he was totally destitute of those traits which attract the populace, toward whom he bore himself with a degree of reserve which savored of austerity.
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