The history of Camden county, New Jersey, Part 31

Author: Prowell, George Reeser, 1849-1928
Publication date: 1886
Publisher: Philadelphia : Richards
Number of Pages: 1220

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THE BENCH AND BAR.

The provision of the Constitution of 1844 is evidently taken from the foregoing. It is in these words: "To avoid improper influences which may result from intermix- ing in one and the same act such things as have no relation to each other, every law shall embrace but one object, and that shall be expressed in the title."

In the matter of erecting courts or offices of judicature, it is curious that the com- mission of the Governor and his instructions should be so much at variance. In the instructions he is commanded as follows : " You shall not erect any Court or Office of Judicature, not before erected or established, without our especial Order." In his com- mission, on the other hand, we find as fol- lows : " And do further give and grant unto you full Power and Authority, with the Advice and Consent of our said Council, to erect, constitute and establish such and so many Courts of Judicature and Public Jus- tice within our said Province under your Government as you and they shall think fit and necessary for the hearing and determin- ing of all Causes as well Criminal as Civil, according to Law and Equity, and for awarding execution thereupon with all reasonable and necessary Powers, Authorities, Fees, and Privileges belonging unto them."

By virtue, then, of his commission, which conferred upon him and his Council powers' hitherto enjoyed by the General Assembly, the Governor promulgated in 1704 the first "Ordinance of Establishing Courts of Judi- cature," which really forms the foundation of the whole judicial system of New Jersey. " All that has been done from that day to this," says Judge Field in his discourse be- fore mentioned, " has been to fill up, as it were, the outlines which he sketched ; to add some additional apartments to the judicial edifice which he constructed."

This ordinance, which was, perhaps, un- known, certainly unnoticed, not only by the historians of New Jersey, but by those who

have written upon its courts of justice, is so interesting that it is here given in full, as it appears in the appendix to Judge Field's discourse, where it was printed for the first time since its publication in 1704,-

AN ORDINANCE FOR ESTABLISHING COURTS OF JUDICATURE.

Whereas, her most Sacred Majesty, Anne, by the Grace of God, Queen of England, Scotland, France and Ireland, Defender of the Faith, &c., by her Royal Letters Patents, bearing date the fifth day of December, in the first year of Her Majesty's Reign, did, among other things therein mentioned, give and grant unto his Excellency, Edward Vis- count Cornbury, Captain-General and Governour- in-Chief in and over the Province of Nova Caesarea, or New Jersey, &c., full Power and Authority, with the Advice and Consent of her Majesty's Council of the said Province, to erect, constitute and establish such and so many Courts of Judica- ture and public Justice within the said Province and Territories depending thereon, as his said Excellency and Council shall think fit and neces- sary, for the Hearing and Determining of all Causes, as well Criminal as Civil, according to Law and Equity, and for awarding Execution thereupon, with all necessary Powers, Authorities, Fees and Privileges belonging to them.

His Excellency, the Governour, by and with the advice and Consent of her Majesty's Council, and by Virtue of the Powers and Authorities derived unto him by her said Majesty's Letters Patents, doth by these Presents Ordain, and it is hereby Ordained by the Authority aforesaid, That every Justice of the Peace that resides within any Town or County within this Province, is by these Presents fully empowered and authorized to have Cognizance of all Causes or Cases of Debt and Trespasses, to the Value of Forty Shillings, or under ; which Causes or Cases of Debt and Tres- passes, to the value of Forty Shillings or under, shall and may be Heard, Try'd and finally Deter- mined without a Jury, by every Justice of the Peace residing, as aforesaid.

The Process of Warning against a Free-holder or Inhabitant shall be by Summons under the Hand of the Justice, directed to the Constable of the Town or Precinct, or to any deputed by him, where the party complained against does live or reside ; which Summons being personally served or left at the Defendant's House, or his place of Abode, four days before the hearing of the Plaint, shall be suffi- cient Authority to and for the said Justice to proceed

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to hear such Cause or Causes and Determine the same in the Defendant's absence, and to grant Execution thereupon against the Defendant's Person, or for want thereof, his Goods and Chattles, which the Constable, or his Deputy, of that Town or Precinct, shall and may serve, unless some reasonable excuse for the Parties absence appear to the Justice.

And the Process against an Itinerant Person, Inmate or Foreigner shall be by Warrant from any one Justice of the Peace, to be served by any Constable, or his Deputy, within that County, who shall by Virtue thereof arrest the Party, and him safely keep till he be carried before the said Justice of the Peace, who shall and may imme- diately hear, try and finally determine of all such Canses and Cases of Debt and Trespass, to the Value of Forty Shillings, or under, by awarding Judgment and Execution ; and if payment be not immediately made, the Constable is to deliver the Party to the Sheriff, who is hereby required to take him into Custody, and him safely keep till payment be made of the same, with charges; Always Provided, That an Appeal to the Justices at the next Court of Sessions held for this said County, shall be allowed for any sum upwards of Twenty Shillings.

And his said Excellency, by the advice and consent aforesaid, doth by these Presents further Ordain, That there shall be kept and holden a Court of Common Pleas in each respective County within this Province, which shall be holden in each County at such place where the General Court of Sessions is usually held and kept, to begin immediately after the Sessions of the Peace does end and terminate, and then to hold and con- tinne as long as there is any business, not exceed- ing three days.

And the several and respective Courts of Pleas hereby established shall have power and Jurisdic- tion to hear, try and finally determine all actions, and all Matters and Things Tryable at Common Law, of what nature or kind soever. Provided always, and it is hereby Orduined, That there may, and shall be an Appeal or Removal by Habeas Corpus, or any other lawful Writ, of any Person or any Action or Suit depending, and of Judg- ment or Execution that shall be determined in the said respective Courts of Pleas, upwards of Ten Pounds, and of any Action or Suit wherein the Right or Title of, in or to any Land, or any- thing relating thereto, shall be brought into Dis- pute upon Tryal.

And it is further Ordained by the Authority afore- said, That the General Sessions of the Peace shall

be held in each respective County within this Province, at the Times and Places hereafter mentioned, that is to say :

For the County of Middlesex, at Amboy, the third Tuesdays in February, May and August; and the fourth Tuesday in November.

For the County of Bergen, at Bergen, the first Tuesdays in February, May and August ; and the second Tuesday in November.

For the County of Essex, at Newark, the second Tuesdays of February, May and August ; and the third Tuesday in November.

For the County of Monmouth, at Shrewsbury, the fourth Tuesdays in February, May and August ; and the first Tuesday in December.

For the County of Burlington, at Burlington, the first Tuesdays in March, June and September ; and the second Tuesday in December.

For the County of Gloucester, the second Tues- days in March, June and September ; and the third Tuesday in December.

For the County of Salem, at Salem, the third Tuesdays in March, June and September ; and the fourth Tuesday in December.

For the County of Cape May, at the house of Shamger Hand, the fourth Tuesdays in March, June and September, and the first Tuesday in Jan- uary. Which General Sessions of the Peace in each respective County aforesaid shall hold and continue for any term not exceeding two days.

And be it further Ordained by the Authority afore- said, That there shall be held and kept at the Cities or Towns of Perth Amboy and Burlington alternately a Supream Court of Judicature, which Supream Court is hereby fully impowered to have 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 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, the Debt or Damage laid in such Action or Suit being upwards of Ten Pounds, and shall or may by Certiorari, Habeus Corpus, 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 thereupon 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

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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.

And out of the office of which Supream Court at Amboy and Burlington all process shall issue, under the Test of the Chief Justice of the said Court; unto which Office all Returns shall he made. Which Supream Court shall be holden at the Cities of Amboy and Burlington alternately, at Amboy on the first Tuesday in May, and at Bur- lington on the first Tuesday in November, annually, and every year; and each session of the said Court shall continue for any Term not exceeding five days. And one of the Justices of the said Supream 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 Bergen at Ber- gen, on the third Tuesday in April. For the County of Essex at Newark, on the fourth Tuesday in April. For the County of Monmouth at Shrewsbury, the second Tuesday in May. For the County of Gloucester at Gloucester, the third Tuesday in May. For the County of Salem at Salem, the fourth Tuesday in May. For the County of Cape May, at Shamger Hands, the first Tuesday in June. Which Justice, when he goes the Circuit, shall in each respective County be assisted by two or more Justices of the Peace dur- ing the time of two days, whilst the Court, in the Circuit, is sitting, and no longer.

And it is further Ordained by the Authority afore- said, That all and every of the Justices or Judges of the several Courts afore-mentioned, be, and are hereby sufficiently Impowered and Authorized to make, ordain and establish all such Rules and Orders, for the more regular practising and pro- ceeding in the said Courts, as fully and amply, to all intents and purposes whatsoever, as all or any of the Judges of the several Courts of the Queen's Bench, Common Pleas and Exchequer, in England, legally do.

And it is further Ordained by the Authority aforc- said, that no Person's Right of Property shall be, by any of the aforesaid Courts, Determined, ex- cept where matters of Fact are either acknowl- edged by the Parties, or Judgment confessed, or passeth, by the Defendant's fault for want of Plea or Answer, unless the Fact be found by Verdict of Twelve Men of that Neighbourhood, as it ought to be done by Law.

CORNBURY.

A Court of Chancery always existed in the State of New Jersey, although its powers

were not at first vested in a single person. During the proprietary government the Court of Common Rights exercised Chancery powers and was virtually the Court of Chancery until 1698. Subsequent to that time, until 1705, this court was undoubtedly held by the Governor and Council, and after 1705 its authority was vested in the Gover- nor, or Lieutenant-Governor, and three members of the Council. In 1718 Gov- ernor Hunter assumed the office of chan- cellor, and continued to exercise its authority until his resignation, in 1720. Although this act of Governor Hunter was condemned by the people as an unauthorized assumption of power, it received the approval of the King's government, and was adopted by his successor, Governor Burnet, who took especial delight in his duties as chancellor. Three years after the advent of Governor Franklin an effort was made by him (1768) to secure such action on the part of the Council and General Assembly as would place the Court of Chancery on a better footing. He called for a master of the rolls, a mas- ter in Chancery for one division of the province, two Masters in Chancery for the other division and a sergeant-at-arms in each division. But the General Assembly caring little for the Court of Chancery, paid no further attention to the Governor's re- quest.

Two years afterwards the Governor took the matter in his own hands, and, by virtue of the powers conferred upon him by his commission, with the advice and consent of the Council, he adopted an ordinance con- cerning the Court of Chancery, by which he appointed and commissioned such masters, clerks, examiners, registers and other neces- sary officers as were needed in the court. There were no essential changes made in the provisions of this ordinance, even by the Con- stitution of July, 1776, which also united the offices of Governor and chancellor, and this union continued until the adoption of the

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present Constitution, whichi separated these two offices and allowed a Governor to be chosen from any of the professions or voca- tions of life.

There is no evidence that, prior to 1733, any previous term of study was required as a qualification for admission to the bar. In that year, during the administration of Gov- ernor Cosby, it is said by Judge Field, in his work already quoted, "that it was provided by an act of Assembly that no person should be permitted to practice as an attorney-at- law but such as had served an apprenticeship of at least seven years with some able attor- ney licensed to practice, or had pursued the study of law for at least four years after com- ing of full age." If any such law was at that time passed it was no longer in force in 1752, as it does not appear in " Nevill's Laws," published in that year. The provis- ion referred to by Judge Field was probably contained in the act entitled, " An Act for the better Enforcing an Ordinance made for Es- tablishing of Fees and for Regulating the Practice of the Law," which was disallowed by the King in Council April 3, 1735. Whatever has been done since that time to keep " persons of mean parts and slender at- tainments " out of the profession has been done not by acts of the Legislature, but by the rules of the Supreme Court.

The lawyers of New Jersey were the first among all the inhabitants of the American colonies to resist systematically those oppres- sive measures on the part of England which led to the Declaration of Independence and the War of the Revolution. The first of the most odious of these measures was the Stamp Act, which was passed by the British Parlia- ment March 22, 1765. Before the stamps had yet arrived from England the members of the bar, at the September Term of the Su- preme Court (1765), held at Amboy, met and resolved unanimously that they would not use the stamps under any circumstances or for any purpose whatsoever. When, at

length, the stamps arrived, the lawyers re- fused to purchase them, and, as a matter of course, the courts of justice were all closed throughout New Jersey. Great inconven- ience and great dissatisfaction was the result, not only in New Jersey, but in other colonies where the example of the Jersey lawyers had been followed. The people complained and societies were everywhere organized under the name of "Sons of Liberty," who urged the lawyers to go on with their business without the use of stamps. Of the lawyers, some were in favor of so doing and others were opposed. A general meeting of the bar was now called and held in New Bruns- wick, February 13, 1766, and hundreds of the Sons of Liberty were present to encour- age the lawyers to disregard this tyrannical act of Parliament, and to have the courts of justice once more opened. The result was that the meeting resolved that if the Stamp Act was not repealed by the 1st of April following, they would resume their practice as nsual. The British government, not ig- norant of this bold stand taken by the law- yers of New Jersey, repealed the odious act before the day arrived when they would have bid Parliament defiance.

CHIEF JUSTICES OF THE COLONIAL SU- PREME COURT OF NEW JERSEY .- Under the first Constitution-that is, during the provin- cial period of our history-no such office ex- isted, nor was there any court corresponding exactly with the Supreme Court erected under the ordinance promulgated by Lord Cornbury in 1704. It was under this ordi- nance that the office was created, and the first session of the Supreme Court. of New Jersey was held at Burlington on the 7th day of November, 1740. On that day the first chief justice of New Jersey, Roger Mom- pesson, took his seat upon the bench, with William Pinhorne beside him as associate judge. Their commissions were read and the court then adjourned till the next day, when the sheriff of Burlington County re-

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turned a grand jury, and a charge to them was delivered by the chief justice.

The business of that session was, however, very light. Not even one indictment was found ; nor was there a single case ready for trial. Some gentlemen, nevertheless, liad the courage to seek admission to the bar and were admitted. The court then adjourned to the first Tuesday of May succeeding.

CHIEF JUSTICES OF NEW JERSEY DURING AND AFTER THE REVOLUTION .- After the adoption of the Constitution of 1776 consid- erable difficulty was experienced in organiz- ing the courts of the new State. The Leg- islature, in joint meeting, elected Richard Stockton, an eminent lawyer and patriot, as chief justice of the Supreme Court, but he declined the appointment. A few days af- terwards, September 4, 1776, the same body elected John De Hart to that high office, and although he accepted it, he finally declined to enter upon its duties. On the same day Samuel Tucker and Francis Hopkinson were elected associate justices. Mr. Hopkinson, who was at the time a delegate to the Con- tinental Congress, declined ; but Mr. Tucker accepted, and taking the oath of office, held a term of court in November following. The regular terms of the court just prior to this time having been interrupted, acts of Assem · bly were passed reviving and continuing the process and proceedings depending therein. Mr. Tucker did not continue long upon the bench. A difficulty arose between him and Governor Livingstone in regard to the dis- appearance of a large amount of paper cur- rency and other property in Mr. Tucker's custody as State treasurer. Mr. Tucker's allegation that he had been robbed of it by a party of British horsemen, who had taken him prisoner, was disputed by Governor Liv- ingstone and thereupon Mr. Tucker re- signed his commission,

ASSOCIATE JUSTICES OF THE SUPREME COURT .- The Constitution of New Jersey adopted July 2, 1776, makes no mention of

the Supreme Court except to declare that " The Judges of the Supreme Court shall continue in office for seven years." Who these judges might be, or how many, does not appear and is not provided for. It is true that this Constitution provides : "Sec- tion XXI. That all the laws of this province: contained in the edition lately published by. Mr. Allison (January 1, 1776) shall be and remain in full force, until altered by the Leg- islature of this colony (such only excepted. as are incompatible with this charter), and shall be, according as heretofore, regarded in all respects by all civil officers and others, the good people of this province." What appears to be the first act passed by the first Legislature under the Constitution is as fol- lows : " Be it therefore enacted by the Coun- cil and General Assembly of this State, and it is hereby enacted by the authority of the same, that the several Courts of Law and Equity of this State shall be confirmed and established and continued to be held with like powers under the present govern- ment as they were held at and before tlie Dec- laration of Independence lately made by the honorable the Continental Congress."

There can be but little doubt that between. October 2, 1704, and November 6, 1705, the Supreme Court was composed of a chief justice and one associate justice, Mompes- son and Pinhorne. Judge Field, in his "Provincial Courts of New Jersey," says that they " were the only judges during the administration of Lord Cornbury." These two gentlemen were certainly on the bench during all that period, which terminated in 1708 ; but the records of the Supreme Court show that on November 6, 1705, two asso- ciate judges were appointed, aud that on. November 6, 1706, another associate jus- tice was appointed, showing that the number of justices was not confined to two. To what number the judges composing the Supreme Court were limited does not appear in the ordinance of Cornbury of 1704, nor in the

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HISTORY OF CAMDEN COUNTY, NEW JERSEY.

ordinance of Hunter, of 1714, nor in the ordinance of Burnet, of 1724, 1725 and 1728. That this court was limited to a chief justice and two associates until 1798 cannot be doubted. In that year it was made, by an act of the General Assembly, to con- sist of a chief justice and three associate justices. On the 10th of March, 1806, this act was repealed and the number of associate justices was reduced to two. In 1838 the number was increased to four, in 1855 it was increased to six, and in 1875 to eight.

The first division of the territory of West New Jersey was into that of two counties- Salem and Burlington,-but the people about Arwamaumas (Gloucester) and the adjacent territory, feeling that the courts and offices were so far away, assembled themselves at Gloucester (May 28, 1686) and established the County of Gloucester, to consist of the third and fourth tenths, and extending from Pensaukin Creek to Oldmans Creek. In 1694 this action of the inhabitants received legislative sanction and the same boundaries were established. In 1844 the third tenth (with the addition of Washington township) was erected into the County of Camden ; but as the townships of Washington and Monroe have since been annexed to Gloucester County the third or Irish tenth now constitutes Cam- den County.

THE COURTS OF CAMDEN COUNTY .- The early courts of old Gloucester County, which of course had jurisdiction over the territory now included in Camden, are described on page 31, et sequiter, of this volume. The first court held in Camden County appears to have been the March Term of the Oyer and Terminer, 1845, and the following is the first entry upon the record :

" Camden Oyer & Terminer, &c.

"March Term, 1845.

" Tuesday, March 25, Court met at 10 A.M.

" Present,-

" The Hon. Thomas P. Carpenter as judge, Isaac Cole, James W. Sloan, Joseph C. Collins, Joseph

C. Stafford, Nathan M. Lippincott, William Brown, Joel Wood & others, Judges.

" After the usual proclamation court was opened. The Grand jury being called, the follow- ing persons appeared and were duly qualified, viz. :

" Isaac H. Porter. John Gill.

Edmund Brewer. Joshua P. Browning.

James W. Lamb. Ebenezer Toole.

Alexander Cooper. Joseph J. Smallwood.

Joel Bodine. Edward P. Andrews.

Isaac Adams. James Jennett.

Gerrard Wood. David E. Marshall.

John M. Kaighn, Henry Allen.

Joseph G. Shinn. William Corkery.

John D. Glover. James D. Dotterer.

Joseph H. Coles. Christopher Sickler.

" And being charged by Judge Carpenter, they retired to their chamber with Samnel C. Fox and John Lawrence, Constables, to attend them."

The first cause tried in the Court of Oyer and Terminer was The State vs. Charles May, Benjamin Jenkins and Edward Jen- kins, an indictment for assault and battery on Isaac Shrive. The attorney-general ap- peared for the prosecution and Thomas W. Mulford for the defendants. The suit re- sulted in the conviction of the defendants. The jury in this case consisted of Mark Bur- rough, Enoch Tomlin, James G. Capewell, John Stafford, Elias Campbell, Azall M. Roberts, William J. Hatch, Josiah H. Tice, Alexander Wolohon, Daniel Albertson, Aaron Middleton and Charles Wilson.

In the Court of Quarter Sessions, the No- vember Term, 1845, was the first court ; opened at half-past nine o'clock on the 10th of the mouth ; present, Isaac Cole, presiding; James W. Sloan, Joseph C. Collins, Nathan M. Lippincott, Joel Wood, Joshua Sickler and William Brown, lay judges. The first case brought was the State vs. William Cox, for assault and battery on William Hugg. Abraham Browning Esq., appeared as attor- ney-general for the State and James B. Day- ton, Esq., for the defendant. The jury was composed of the following persons, viz .: Joseph Warner, Isaac H. Tomlinson, John A. Ware, Joseph K. Rogers, Joseph Barrett,

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The history of Camden county, New Jersey, Part 31

Author: Prowell, George Reeser, 1849-1928 Publication date: 1886 Publisher: Philadelphia : Richards Number of Pages: 1220

Author: Prowell, George Reeser, 1849-1928
Publication date: 1886
Publisher: Philadelphia : Richards
Number of Pages: 1220