ass„

i^iii

-- -U hi.

PRESKNTKl) BY

COLLECTIONS

OF THE

NEW JERSEY

HISTORICAL SOCIETY.

VOL. VII.

NEWARK, N. J.

PUBLISHED FOR THE SOCIETY,

By martin R. DENNIS & CO.

1872.

OFFICERS

OF THE

NEW JERSEY HISTORICAL SOCIETY.

ELECTED 1872.

RAVAUD K. RODGERS, D. D., President.

HENRY W. GREEN, LL. D., 1st Vice President.

SAMUEL M. HAINIILL, D. D., 2d Vice President.

WILLIAM B. KINNEY, 3d Vice President.

WILLIA]\I A. WHITEHEAD, Corresponding Secretary.

DAVID A. HAYES, Rkcordixg Secretary.

ROBERT S. SWORDS, Treasurer.

SAMUEL H. CONGAR, Librarian.

EXECUTIVE COMMITTEE. SAMUEL H. PENNINGTON, M. D., N. NORRIS HALSTED, JOHN HALL, D. D., JOHN CLEMENT, CHARLES C. HAVEN, PETER S. DURYEE, SAMUEL ALLISON, THEODORE F. RANDOLPH, HUGH H. BOWNE.

COMMITTEE ON PUBLICATIONS. WILLIAM A. WHITEHEAD, SAMUEL H. PENNINGTON, M. D., JOHN HALL, D. D., WILLIAM B. KINNEY JOSEPH N. TUTTLE.

Gift The Society

t r '05

THE

CONSTITUTION AND GOVERNMENT

OF THE

PROVINCE AND STATE OF

NEW JERSEY,

WITH

BIOGRAPHICAL SKETCHES OF THE GOVERNORS

FROM 1776 TO 1845.

AND

REMINISCENCES OF THE BENCH AND BAR,

DURING MORE TILVN HALF A CENTURY.

BY

LUCIUS Q. C. ELxAlER, LL. D.

LATE ONE OK THE JUSTICES OF THE SUPREME COURT OK NEW JERSEY.

NEWARK, N. J. MARTIN R. DENNIS AND COMPANY.

1872.

Entered according to Act of Congress, in the year 1872, by

Martin R. Dennis and Company,

in the Office of the Librarian of Congress, at Washington.

mvERSiDB, cambridgb:

STBRBOTTPBD AND PBINTKD BY

H. 0. HOUGHTON AND COMPANY.

PREFACE.

nnHE Reminiscences contained in this volume were commenced at the request of the late Judge Field, when president of the New Jersey Histor- ical Society, and portions of them were read at meetings of the society in 1870. Having thus com- menced, it was proposed that I should complete such a history of the judiciary of the State as would make a proper sequel to the " Provincial Courts of New Jersey," prepared by Mr. Field, and published by the society in 1849. This I have undertaken; and at his suir«-estion I have written with entire freedom, and have expressed without reserve my individual opin- ions respecting the men and measures introduced, so as to give to the best of my ability an authentic his- tory of the age in which I have lived, so far as that history related to the men who have belonged to the bench and bar of New Jersey. Any further notice of Judge Field himself has been rendered unneces- sary by the extended memoir of him written by Mr. Keasbey, and published by the society.

Having retired from office and from professional pursuits, I have had leisure which I thought would not be wasted by endeavoring to preserve for those

iv PREFACE.

who shall come after us a reliable account of those who have preceded us, and finished their labors in the same sphere of duty. With only the exceptions of Governors Vroom and Haines, who have been in- troduced for the sake of making complete biograph- ical sketches of the governors since the Revolution, who were a part of the judiciary of the State, all the individuals commemorated have passed away. All the judges of the state courts, who have held office since the Revolution, and who are not still living, have been noticed with more or less particularity.

Some of the persons of whom I have written held opinions on the political topics of the day in the main agreeing with my own ; while others belonged to a different party, and differed from me on many important subjects. My earnest endeavor has been to do equal justice to all. With all personally known to me, my relations have been altogether friendly ; and I have kept in mind that while holding firmly to my own opinions, those difiering from me were equally entitled to adhere to theirs, and that it is quite possible they were right and I was wrong. My hardest task has been to avoid mere eulogy, and to give, as far as possible, a correct impression of the true character of each individual as he appeared to me, of course touching lightly on fliults, of w^hich we all have enough, and giving full prominence to what- ever seemed to me commendable.

For the purpose of making more complete the ju- dicial history of the State, I have introduced an ac-

PEEFACE.

count of the constitution and government of the col- ony while it was a province of Great Britain, and a history of the constitution formed in 1776. A care- ful study of these histories will show us that our state and our federal republics, on the excellence of which we so justly pride ourselves, are not mushroom growths which sprung up in a night, and are there- fore liable to perish in a day, but that they have been the slow and sure growths of nearly two centu- ries of experience, the germs of which are found in the sound principles of the common law brought with them by our English forefathers. The consti- tution of 1776 was defective, in blending the duties of the executive and the judiciary; but this defect was much relieved, and perhaps quite remedied, by the flxct that while it existed the governors were necessarily men learned in the law, and thus the State commenced its independent career, and for years had the benefit of rulers having high qualifi- cations for the office.

I have also added, by way of Appendix, a short account of the Titles to Land, as held in New Jer- sey, originally prepared for Nixon's Digest, which I trust will be found interesting and useful, not only to lawyers, but to proprietors generally.

Bridgeton, January 1, 1872,

COI^TEIS'TS.

CHAPTER I.

PAQB

Constitution and Government of the Province op New Jersey 1

CHAPTER H.

The State Constitution adopted in 1776, and the Gov- ernment UNDER it 21

CHAPTER m.

Governors during the War for Independence : William

Franklin ; William Livingston 50

CHAPTER IV.

Governors after the War for Independence : William

Paterson; Richard Howf,ll 77

CHAPTER V.

Governors I have known : Joseph Bloomfield ; Aaron

Ogden 114

CHAPTER VI.

Governors I have icnown : William S. Pennington ; Maiilon Dickerson; Isaac H. Williamson; Peter D. Vroom 158

CHAPTER VII.

Governors I have knoavn : Samuel L. Southard ; Elias P. Seeley 201

CHAPTER VIII.

Governors I have known : William Pennington ; Phile- mon Dickerson; Daniel Haines 237

viii CONTENTS.

CHAPTER IX.

Judges during and soon after the Revolution : Samuel Tucker; Robert Morris; David Brearly; James Kin- sey; Isaac Smith; John Cleves Symmes; John Chet- wood; Elisha Boudinot ^ 264

CHAPTER X.

Judges I have known : Bushrod Washington ; William

Griffith 281

CHAPTER XI.

Judges I have known: Andrew Kirkpatrick; William RossELL ; Gabriel H. Ford ; George K. Drake ; Thomas C. Ryerson 301

CHAPTER XII.

Judges I have jcnown: Charles Ewing; John Moore AVhite ; Daniel Elmer ; James S. Nevius ; Ira C. Whitehead; Elias B. D. Ogden; Stacy G. Potts . 326

CHAPTER XIII.

Judges I have known: Joseph C. Hornblower ; William

L. Dayton; Edward AV. Whelpley; George II. BRO^^'N 361

CHAPTER XIV.

Lawyers I have known: Samuel Leake; Jasies Giles; Ricii.\rd__Stockton ; Lucius H. Stockton ; George Wood; Garret D. Wall; William W. Miller; Jacob

/ W. Miller 403

CHAPTER XV.

Lawyers I have known : Theodore Frelinghuysen ; John Rutheufurd ; William Chetwood ; John J. Chetwood ; Aaron O. Dayton ; William N. Jeffkrs ; Alphonso L. Eakin ; Josiaii Harrison ; Francis L. Macculloch ; Richard P. Thompson ; Asa White- head ; Joseph W. Scott 440

APPENDIX. — Titles to Land 481

PUBLICATIONS

OF THE

NEW JEESEY HISTORICAL SOCIETY

For Sale by JIartin R. Dexxis & Co., Newark, N. J.

"COLLECTIONS, VOL. I.," containing "East Jersey under the Provincial Governments ; a Narrative of Events connected witli tlie Settlement and Progress of tiic Province, until the Surrender of the Government to the Crown in 1702. Drawn principally from Original Sources: by William A. Whitehead. With an Appendix, containing a Model of the Govern- ment of East New Jersey, by George Scot, of Pitlochie, now first reprinted from the original edition of 168,5." 8vo, pp. 342 — xv., with Maps and Plates (Out of print.)

" COLLECTIONS, VOL. II.," containing " The Life of William Alexanoer, Earl of Stirling, Major-general in the Army of the United States during the Ilevoliition : with Selections from his Correspondence, by his Grandson, William Alexander Duer, LL. D." Svo, pp. 284, with Portrait and Maps. $1.

" COLLECTIONS, VOL. III.," containing " The Provincial Courts of New Jersey, with Sketches of the Bench and Bar : by Richard S. Field." Svo, pp. 324. SI. .50.

" COLLECTIONS, VOL. IV.," containing the Papers of Lewis Morris, Gov- ernor of the Province of New Jersey from 1738 to 1746. With Portrait. 8vo, pp. 336— XXX. $2.

"COLLECTIONS, VOL. V.," containing "An Analytical Index to the Colonial Documents of New Jersey, in the State Paper Offices of England, compiled by Henry Stevexs. Edited, with Notes and Peferences to printed works and manuscripts in other depositories, by William A. Whitehead." 8vo, pp. 504 — xxx. $2.50.

" COLLECTIONS, VOL. VI.," containing " Records of the Town of Newark, New Jersey, from its Settlement in 1666, to its Incorporation as a City in 1836— with Maps." Svo, pp. 294— x. $2.

And Supplement thereto, containing " Proceedings Commemorative of the Settlement of Newark, New Jersey, on its Two Hundredth Anniver-

2

sary, May 17, 1866," comprising: I. Historical Memoir, by William A. Whitehead ; II. Lyrical Poem, by Thomas Ward, M. D. ; III. Ora- tion, by William B. Kinney ; IV. Genealogical Notes of the Settlers, by Samuel H. Congar; V. Notes. 8vo, pp. 182. $1.50.

%* The Volumes of " Collections " are bound and lettered as distinct works, } well as in sets.

"PROCEEDINGS OF THE SOCIETY."

In Paper Covers.

VOL. I. contains — Proceedings of Meetings at Trenton to organize the Soci- ety, February, 1845. Proceedings at Newark, May 7, 1845. — Discourse by Charles King, Esq. Proceedings at Trenton, September 4, 1845. — Journal of Capt. John Schuyler, on an Expedition to Canada, in August, 1690. — Three Letters from Kcv. Samuel Davies, President of Princeton College, 1759-60. — Address by Rev. Samuel Miller, D. D. Proceedings at New Brunswick, November 6, 1845. — Three Letters from Governor Franklin to his Father, June and October, 1767, and May, 1759. — Letter from William Strahan, London, 1766. Proceedings at Trenton, January 15, 1846. — Letter from Lord Cornbury to the Inhabitants of Bergen, 1706. Proceedings at Burlington, May 1, 1846. — Letter from William Dockwra, Proprietaries' Register, to Governor Andrew Hamilton, April 1, 1693. — An Account of a Journey in the Southern States in 1781, by Abel Thomas. — An Account of the Capture and Death of the Refugee John Bacon, by George F. Fort, M. D. — Extracts from a Paper on the Discovery and Settlement of Monmouth County, by Rev. A. A. Marccllus. Proceedings at Salem, September 3, 1846. — Corrections of Errors in Mr. King's Discourse. — Exports of Salem County. — Criminal Statistics of Essex County. — Proceedings of the Committees of Freehold and Shrewsbury on the opening of the Revolution. — Index. SI .50.

VOL. II. contains — Proceedings of Society at Elizabethtowu, November 5, 1846. — Proceedings of the Government of New York, December, 1675, to December, 1678, in Relation to the Settlement and Jurisdiction of Major John Fenwick in West Jersey. — Journal of Lieut. William Barton, during Sullivan's Expedition against the Indians, in 1779. — Extracts from Journal of Dr. P^benezer Elmer, during the same Expedition. Proceedings at Trenton, January 1, 1847. — Second Annual Address, by Hon. Joseph C. Hornblower, LL. D., President of the Society. Proceedings at Newark, May 27, 1847. — Diary of Events in Charleston, S. C, from March 20 to April 20, 1780, during the Siege by the British: by Samuel Baldwin. Proceedings at New Brunswick, June 25, 1847. — Journal of an Expedi- tion to Canada, in 1776, by Lieut. Ebenezer Elmer, of the New Jersey Forces. Proceedings at Freehold, September 16, 1847. — Letter from Richard Stockton to Robert Ogden, about Public Affairs, 1765. — Index. $1.50.

VOL. III. contains — Proceedings of the Society at Trenton, January 20, 1848.

— Letter from James Logan to Colonel Cox, June, 1719, relative to the Dividing Line of East and West Jersey. — Journal of Lieut. Ebenezer Elmer (continued from Vol. IL). Proceedings at Newark, May 25, 1848.

— Letter from David Ogden, February 20, 1767, to the Claimants under Indian Purchases. — Memoir of Rev. James Caldwell, by Rev. Nicholas Murray, D. D. — Extract from a Diary of Mr. Jacob Spicer, 1757. — A Brief Account of the Swedish Mission in Racoon and Penn's Neck: by Rev. Nicholas Collin, D. D. Proceedings at Princeton, September 27, 1848. — A Biographical Sketch of Governor AVilliam Franklin: by Wil- liam A. Whitehead. Proceedings at Trenton, January 18, 1849. — Letter from Governor Franklin to his Father, December 24, 1774. — Journal of Major William Gould during an Expedition into Pennsylvania, 1794. — Index. $1.50.

VOL. IV. contains — Proceedings of Meeting at Newark, May 17, 1849. — Memoir of Governor Lewis Morris, by Rev. Robert Davidson, D. D. — Census of Northampton, Burlington County, 1709. — List of Judges, Clerks, Sheriffs, Surrogates, and Attorneys of Salem County, from the Settlement. — Memoir of John Fenwick, Chief Proprietor of Salem Tenth, by Robert G. Johnson. — Letters from William Strahan to David Hall, describing the Trial of John Wilkes. Proceedings of Meeting at Freehold, September, 1849. — State of Religion in the Provinces of East and West Jersey in 1700. — The Battle of Monmouth Court House, by Charlen King, Esq. —T Letters from William Pcartree Smith, to Elias Boudinot. Proceedings of Meeting at Trenton, January 17, 1850. — Letter from Rev. Uzal Ogden, Missionary to Sussex County, 1771. — Lease for a Year from Dame Elizabeth Carteret, to the Twelve Proprietors, for East Jersey. — The Aborigines of New Jersey, by Archer Giftord, Esq. — Index. $1.50.

VOL. V. contains — Proceedings of Meeting at Newark, May 16, 1850. — Letter of Major-general Baron Steuben to Officers of the New Jersey Line, July 19, 1793. — Tables of the Sittings of the Provincial Assemblies, and Names of Members. — Orders of Generals Schuyler and Sullivan to Colo- nel Jonathan Dayton, 1776. Proceedings of Meeting at Morristown, September 12, 1850. — The Robbery of the Treasury, in 1768 : by W. A. Whitehead. — The Hollanders in New Jersey : by Rev. Abraham Messier, D. D. Proceedings of Meeting at Trenton, January 23, 1851. — The American Union, and the Perils to which it has been exposed : by J. P. Bradley, Esq. — Letters of Joseph Sherwood, Provincial Agent. Proceed- ings of Meeting at Newark, May 15, 1851. — Letter from Major F. Barber, 1776. — Letter from Joseph Shippen, Jun., 1752. — Selections from Corre- spondence of William Alexander, Earl of Stirling. — Index. $1.50.

VOL. VI. contains — Proceedings of Meeting at Somerville, September 11, 1851. — Letter from Robert Morris, 1781. — Journal of Andrew Bell, Sec- retary of General Clinton, kept during the March of the British Army through New Jersey, in 1778. — Inquiry into the Location of Mount Ploy- den : by Rev. George C. Schanck. — Review of the Trial of the Rev. Wil- liam Tennent, 1742: by Richard S. Field. — Selections from Correspond-

ence of "William Alexander, Earl of Stirling, in 1755. Proceedings of Meeting at Trenton, January 15, 1852. Selections from Correspondence of William Alexander, Earl of Stirling, in 1755. Proceedings of Meeting at Newark, May 20, 1852. — The Uses and Benefits of Historical Socie- ties : by Hon. Theodore Frelinghnysen, LL. D. — Selections from Corre- spondence of William Alexander, Earl of Stirling, in 1755. Proceedings of Meeting at New Brunswick, September 8, 1852. — Description of the Site of Fort Nassau on the Delaware : by Edward Armstrong. — The Pennsylvania Insurrection of 1794: by Rev. James Carnahan, D. D. Proceedings of Meeting at Trenton, January 15, 1853. — Report of Cor- responding Secretary on the Belcher Papers. — Report of Committee au- thorized to examine supposed Site of Fort Nassau. — The Discovery of the Northmen : by Charles C. Rafn, Secretary of the Society of Northera Antiifuaries. — The History and Location of Fort Nassau on the Delaware: by Edwai'd Annstrong. — Index. $1.50.

VOL. VII. contains — Proceedings at Newark, May 19, 1853. — Letter from " Pierwim, ye Sachem of Pau," relative to " Cooks of Dozens " in Collec- tions, Vol. I. — Biographical Sketcli of General William Winds : by Rev. Joseph F. Tuttle. — Selections from Correspondence of William Alexan- der, Earl of Stirling, Major-general during the Revolution. Proceedings of Meeting at Trenton, January 19, 1854. — Proceedings on Announce- ment of Death of Hon. James G. King. — "The Iron State, its Natural Position, Power, and Wealth ; " an Address by Hon. Jacob W. Miller. Proceedings of Meeting at Newark, May 18, 1 854. — Diary of Joseph Clark, attached to the Continental Army, from May, 1778, to November, 1779. Proceedings of Meeting at Trenton, January 18, 1855. — Letter fiom Rev. Dr. Hopkins to Rev. Dr. Bellamy, July 20, 1758. Proceedings of Meeting at Newark, May 17, 1855.— Index. $1.50.

VOL. VIII. c6ntains — Proceedings of Meeting at Trenton, January 17, 1856.

— Drawings and Papers of Robert Fulton in the possession of the Society.

— Account of the Establishment at Monistown of the first Academy, Li- brary, and Printing Press. Proceedings of Meeting at Newark, May 15, 1856. — Supplement to the Act of Incorporation. Proceedings of Meeting at Jersey City, September 25, 1856. — Extracts from Manuscripts of Sam- uel Smith. Proceedings of Meeting at Trenton, January 15, 1857. Pro- ceedings of Meeting at Newark, May 21, 1857. — Field and Stafl^ Officers New Jersey Regiments in Revolution. — Appointment of Nathaniel Jones as Chief Justice in 1759 : by W. A. Whitehead. — Journal of Capt. David Ford, during the Expedition into Pennsylvania in 1794. Proceedings of Meeting at Trenton, January 21, 1858. — Proposals of Colonel Mawhood to the Militia of Salem County in 1778, and Answer of Colonel Hand. —

\ Female Suffrage in New Jersey : by W. A. Whitehead. — Brief History of

T the Boundary Disputes between New York and New Jei-sey : by Hon.

James Parker. — Staten Island part of New Jersey. Proceedings of Meet- ing at Newark, May 20, 1858. — Extract from Jounial of Lieut. Isaac Bangs. Proceedings of Meeting at Trenton, January 20, 1859. Proceed- ings of Meeting at Newark, May 19, 1859. — The Circumstances leading to the Establishment in 1769 of the Northern Boundary Line between New Jersey and New York : by W. A. Whitehead. — Inde.x. $1.50.

VOL. IX. contains — Proceeding's at Trenton, January 19, 1860. — Extract from the MSS. of Samuel Smith. — Marriages of Friends in Fliiladclj)hia, 1682-1714. Proeeedings at Newark, May 17, 18G0. — Origin of the name " Pavonia," by Solomon Alofsen. — Memoir of Samuel G. Smith : by John Jay Smith. — Project for raising Money in 1716, by William Pinhornc. Proceedings at Trenton, January 17, 1861. — Extracts from the Minutes of New Jersey Supreme Court, 1765. — Battles of Trenton and Princeton : by C. C. Haven. Proceedings at Trenton, January 16, 1862. — Announce- ment of Deaths of Rev. Dr. Murray and John P. Jackson, Esq. — Memo- randa relating to Dr. Franklin's Administration of the Colonial Post Office. — Memoir of Mrs. Abigail Stafford and her Times. — Proprietors' Order respecting " Perth Towne," 1683. — Affairs of New York and New Jersey under the Joint Governors: by Cadwallader Golden. — Letter to Governor Franklin from Hon. H. S. Conway, Under Secretary of State, 1765. Pi'oeeedings at Newark, May 15, 1862. — Steamboat Controversy between New York and New Jersey, 1811 to 1824: by John D. Ward. Proceedings at Trenton, January 15, 1863. — Scandinavian Settlementa in New Jersey. Proceedings at Newark, May 21, 1863. Proceedings at Trenton, January 21, 1864. — Papers of General Elias Dayton. Proceed- ings at Newark, May 19, 1864. —Index. $1.50.

VOL. X. contains — Proceedings at Trenton, January 19, 1865. — Address on the Life and Character of the Hon. Joseph C. Hornblower, LL. D. : by tha Hon. Richard S. Field. Proceedings at Newark, May 18, 1865. — Sketch of the McWhorter Family in New Jersey, by George C. McWhorter. — Proceedings at Trenton, January 18, 1866. — Description of an Ancient Brass Tobacco Box, by S. Alofsen. — Instructions of Freeholders of Hun- terdon to the Representatives of the County, 1771. — Papers on the East- ern Boundary of New Jersey : by W. A. Whitehead. Proceedings at New- ark, May 17, 1866. — Communication from Asher Taylor on the derivation of " Neversink." — Letter to Dr. Benjamin Franklin from the House of Assembly of New Jersey, December 7, 1769. — Account of the Portrait of Aaron Burr in the Possession of the Society : by David A. Hayes.— Objec- tions of New Jersey to the Articles of Confederation submitted to Congress, June 23, 1778. — Report of the Commissioners of the States at Annapolis, September 14, 1786, relative to the adoption of a better System of Govern- ment for the States. — Act of Incorporation of the Society. — Members of the Society, December, 1866. — Index. $1.75.

NEW SERIES — VOL. I. contains — Proceedings at Trenton, January 17, 1867. Proceedings at Newark, May 16, 1867. — Pedigree of Governor Carteret. — Sraten Island and the New Jersey Boundary. — Regimental Returns, Haddonfield, Bordentown, Morristown, December, 1776, and January, 1777. — Letter from David Ogden to Philip Kearney, Januarj 14, 1766. Proceedings at Trenton, January 16, 1868. Proceedings at Newark, May 22, 1868. — Inscriptions on Tombstones near Freehold. — Letter from Quartermaster-general Greene to Col. James Abeel, June 4, 1779. — Letter from Gen. Washington to Dr. Franklin. — Notes on the State of New Jersey, 1786: by John Rutherfiird. — Letter from Wm. S. Living.ston to Col. Burr, July 10, 1782. — Officers of Col. Peter Schuyler's

6

Regiment, 1759. Proceedings at Trenton, January 21, 1869. —Letter from Gen. Washington to Rev. Samuel Haven, March 10, 1787. — Inscrip- tions on Tombstones at Ringwood, N. J. — Grant from Berkeley and Car- teret to the People of Woodbridge and Samuel Moore, December 7, 1672. — Address on the Life and Character of Hon. James Parker: by the Hon. R. S. Field. Proceedings at Newark, May 20, 1869. —Review of some of the Circumstances connected with the Settlement of Elizabeth, N. J. : by W. A. Whitehead. — Commercial Prospects in New Jersey during the Confederation : by John Rutherfurd. — Index. $1 .75.

NEW SERIES— VOL. II. contains ^ Proceedings at Trenton, January 20, 1870. — Early History of Morris County : by Rev. Joseph F. Tuttle, D. D. Proceedings at Newark, May 19, 1870.— Sketch of Rev. Barnabas King, D. D. : by Rev. Joseph F. Tuttle, D. D. —Obituary Notice of Rev. David V. McLean, D. D. — Sketch of Life of Andrew Kirkpatrick, Chief Justice of New Jersey, 1803 to 1824 : by James Grant Wilson. Proceedings at Trenton, January 19, 1871.— Memoir of Hon. Richard S. Field: by An- thony J. Keasbey — History of the First Constitution of New Jersey, and of the Government under it : by Hon. Lewis Q. C. Elmer. Proceedings at Newark, May 18, 1871. Proceedings at Trenton, January 18, 1872. — Memoir of John Rutherfurd, late President of the Society : by Robert S. Swords. — Histoiy of the Circumstances attending the Election of Will- iam Pennington of New Jersey, as Speaker of 36th Congress : by Hon. John S. Nixon. — Index, $1.75.

CHAPTER I.

CONSTITUTION AND GOVERNMENT OF THE PROVINCE OF NEW JERSEY.

THE government of New Jersey was first estab- lished by the proprietors, who claimed to derive the right from the grant of the Duke of York, Berke- ley and Carteret, his grantees, framed, or had framed for them, in England, a constitution, which was en- grossed on a parchment roll and signed by them, February 10, 1664, under the title of "The Con- cession and Agreement of the Lords Proprietors of the Province of New Ca38aria or New Jersey, to and with all and every the Adventurers, and all such as shall settle or plant there." It is contained in " Leaming and Spice*'s Grants and Concessions," page 12, printed by virtue of an act of the legislature, in 1758, at Phil- adelphia, by W. Bradford, printer to the King's most excellent Majesty, for the Province of New Jersey.

Under these concessions, which were republican in their character, a government was commenced, and with some interruption, occasioned by the Dutch conquest and other causes, continued until the par- tition into East and West Jersey, by means of the Quintipartite deed in 1676. After this, the govern- ment of the two provinces was distinct, until the sur- render to Queen Anne in 1702.

2 REMINISCENCES OF NEW JERSEY.

In 1682, Robert Barclay was appointed Governor for life by the proprietors of East Jersey, and exe- cuted the office by a deputy, who convened an assem- bly elected by the people. Counties were established, and a high sheriff appointed for each, and courts were organized. No other assembly appears to have sat until 1680. In 1688, it sat again. From 1692 to 1695 assemblies convened yearly, and afterwards at irreg- ular intervals. Much doubt existed as to the legal- ity of this proprietary government, and difficulty was experienced in carrying it on, much aggravated by disputes about Indian grants and the quitrents re- served by the proprietors. Proceedings were com- menced in the court of king's bench in England, to deprive the proprietary officers of their places, by means of a writ of quo ivarranto, and this led to the sur- render of the government to the crown, the proprie- tors retaining their exclusive right to dispose of the soil.

West Jersey was governed according to the provis- ions of " The concessions and agreements of the pro- prietors, freeholders, and inhabitants of the Province of West New Jersey in America," dated *March 3, 1676, and signed by William Penn, and one hundred and forty-eight others, the original of which, beauti- fully engrossed on vellum in a well-bound quarto, is preserved in the land-office at Burlington.^ Some of the governors were appointed by the proprietors, and others by the legislature ; which latter body appears to have appointed all the other officers necessary to carry on the government. Difficulties, however, arose, and the proprietors joined with those of East Jersey, in the surrender.

^ See Learn, and Spic. 382.

CONSTITUTION AND GOVERNMENT OF THE PROVINCE. 3

The laws enacted by these two governments do not appear to have been prhited, until such of them as were extant were collected b}^ Learning and Spicer. They were sent in manuscript to the counties and read at public assemblies of the people. The minutes of the county court of Cape May for 1694, contain this entry : " We, the grand jury, see cause to pre- sent George Taylor (he was the Clerk), for publishing a false copy of the act of Assembly, on a court day in December, 1693." He pleaded not guilty, and was tried. Some witnesses swore that he read the laws differently at two courts, and that when he first read them " they was not interlined." " Jeremiah Basse, President of the Court, asserteth them to be the same laws and written by the same hand ; the rest of the Justices say it is like the same hand, and they believe it to be the same hand." The jury found him not guilty, and he was cleared by proclamation. None of these laws are now in force, although several of them, slightl}^ modified, are still on the statute book as substantially reenacted after the surrender, and the influence of the correct principles contained in the Concessions still continues, and it is hoped will never be lost.

Upon the assumption of the government by the Queen of England, in 1702, a governor of the Prov- ince of " Nova Ca3saria or New Jersey," was ap- pointed and commissioned under the great seal of Great Britain, to hold his office during the pleasure of the sovereign, and continued to be so appointed and commissioned until the Revolution. The commis- sion and the instructions accompanying it, drawn with great care and ability by the law officers of the crown, contain the constitution under which the gov-

4 REMINISCENCES OF NEW JERSEY.

ernment of the province was administered, with but little variation, until the- adoption of the new consti- tution in 1776. They, in fact, introduced the main features of the British Constitution, as improved by the Revolution of 1688, with a still larger infusion of the republican element, suited to a people already accustomed to self-government.

The executive power was confided to the governor with the advice of twelve counselors, appointed orig- inally, and occasionally afterward, by the crown, but more commonly by the governor himself, six of whom were residents of East, and six of West Jersey, five constituting a quorum. The title adopted by the governors, with unimportant variations, was " Cap- tain-General and Governor-in-chief, in and over the Province of Nova Caesaria or New Jersey and ter- ritories thereon depending in America, Chancellor and Vice-Ad miral in the same."

The legislative power was vested in the governor,- the council, and a General Assembly. The Assembly was convened, adjourned, and dissolved at the pleas- ure of the governor and council, and elected by vir- tue of writs under the great seal of the colony ; two by the inhabitants and householders of the town of Perth Amboy, and ten by the freeholders of East Jer- sey ; two by the inhabitants and householders of the town of Burlington, and ten by the freeholders of West Jersey. The governor usually sat with the council, but no law could be passed without his assent, the style used being, " Be it enacted by the Governor, Council, and General Assembly." In 1709, they passed an act reciting that the present constitu- tion granted by the Queen, was found inconvenient, and to remedy the same, enacting that after the dis-

CONSTITUTION AND GOVERNMENT OF THE PROVINCE. 5

solution of the present assembly, the representati^'es should be chosen by the majority of voices or votes of the freeholders of each county, having one hun- dred acres of land in his own right, or be worth fifty pounds current money ; and that the person elected should have one thousand acres of land in his own right, or be worth five hundred pounds in real and personal estate. Two were to be elected for Perth Amboy, and two for each of the then five counties of East Jersey ; two for each of the towns of Bur- lington and Salem, and two for each of the then four counties of West Jersey. This equality between the two ancient divisions was carefully adhered to. Hun- terdon County was established in 1714, but continued to choose representatives in conjunction with Burling- ton until 1727, when it was authorized to choose two, and Salem town was deprived of its separate repre- sentation. Cumberland County was set off from Sa- lem in 1747, but continued to elect representatives as before, until 1768, when two additional members were added from Morris County, two from Cumber- land, and two from Sussex, this last county extend- ing into both divisions.

In 1725 an act was passed requiring the sheriff and other officer to whom a writ of election was directed, to give public notice of the day and place of election ; and on that day, between the hours of ten and twelve, to proceed to the election, by reading his writ, and that he should not declare the choice upon the view (that is merely from a vote by holding up of hands), nor adjourn, without the consent of the candidates, but should, if a poll was required, proceed from day to day, and time to time, until all the electors then and there present be polled ; and he was required to

6 REMINISCENCES OF NEW 'JERSEY.

appoint a clerk who should set down the names of the electors and the persons they voted for. There was of course but one place of election in each county. This mode of election continued for some time after 1776. The poll, if one was required, generally closed the first day ; but on some occasions was kept open a week, or longer. In 1789, in consequence of the rivalry between East and West Jersey, as to whether the seat of the general government should be tempo- rarily at New York or Philadelphia, the polls were kept open, in some of the western counties, three or four weeks.

Voting by ballot does not appear to have been practiced until after the Revolution. It was intro- duced in some of the counties in 1779, but was soon discontinued during the war. In 1783 the election by ballot was restored in several counties ; in 1790 it was required in others; and in 1797 in all the counties.

From the surrender until the Revolution, a period of seventy-four years, there were twenty-two assem- blies, some of which continued but one 3'ear, others longer, and one from 1761 to 1769, — eight years. In 1768 an act was passed — of course with the concur- rence of the governor — that a general assembly should be holden once in seven years at least; to which Al- linson, in his edition of the laws published in 1776, just before the Declaration of Independence, appends a note, that " although this act never had the royal assent, it is here inserted, on the probability that so reasonable a law will be regarded." The Assembly first elected after this act, was dissolved at the end of three years ; and that convened in 1772, dissolved itself in 1776. The number and duration of the sit-

CONSTITUTION AND GOVERNMENT OF THE PROVINCE. 7

tings of the several assemblies were very diverse, there having been on some occasions five or six within one year; and on others there was an inter- val of two, and once of five years, without an assem- bly being convened.

All the provincial officers for the whole colony or a county, including even the clerks of the Assembly, were appointed directly by the crown, by writ of privy seal, or by the governor and council, and were commissioned in the name of the reigning king, un- der the great seal of the province, which was in the keeping of the governor. The instructions required him to take care that the officers be men of good life, and well affected to our government, of good estates and abilities, and not necessitous people, or much in debt.

For several years the proprietors in England had much influence in the appointment of the officers. In 1715, by an instrument under their hands and seals, they appointed James Smith clerk of the su- preme court, and James Alexander surveyor-general ; and a letter was directed to Governor Hunter, in the name of King George, requiring him to receive, assist, and countenance them in the execution of their offices. Occasionally, the officers appointed by the governor and council were superseded, by direct appointments from the crown.

The governor and council were empowered to erect, constitute, and establish such courts as they should think necessary, and to appoint and commission judges and all other necessary officers and magis- trates, and were instructed not to displace any of the judges or other officers without good cause, to be sig- nified to the crown, and not to express any limitation

8 REMINISCENCES OF NEW JERSEY.

of time in the commissions. According to the Eng- lish Constitution, the King or Queen is considered the fountain of justice, and general conservator of the peace, and this branch of the royal prerogative was delegated, so far as the province was concerned, in a very ample manner, to the governor and council. By virtue of this power, they granted patents estab- lishing and altering the boundaries of townships, con- stituting municipal and other corporations, and estab- lishing and regulating ferries ; and by ordinances, established courts of justice, defined their powers, appointed the times and places at which they should be held, and regulated the fees.

Lord Cornbury, the first governor, promulgated an ordinance in 1704; and as is remarked by Mr. Field in his interesting account of the provincial courts of New Jersey, " he is entitled to the credit of having laid the foundation of our whole judicial system, and laid it well." Justices were to have cognizance of cases to the value of forty shillings. In each county, there was established a court of common pleas, hav- ing power to try all actions at common law, and a court of general sessions of the peace, each with quar- terly terms ; and for the province, a supreme court, to sit once in each year at Perth Amboy and at Bur- lington, and to have cognizance of all pleas, civil, crim- inal, and mixed, as fully as the courts of queen's bench, common pleas, and exchequer in England. In 1714 the supreme court was required to hold two terms yearly in each place, and courts for the trial of issues were appointed to be held yearly in each county. The ordinance of Cornbury is in his own name, by the advice and consent of the council ; and this ex- ample was followed by Governor Hunter. Afterwards

CONSTITUTION AND GOVERNMENT OF THE PROVINCE. 9

the ordinances are in the name of the king ; but they all emanated from the same authority, namely, the governor and council. It does not appear that any of them were, like the commissions of the governor, by privy seal. The times and places of holding the courts, and the length of the terms, were from, time to time altered, but the constitution and powers of the courts remained the same, except that in 1724, no doubt through the influence of the proprietors, the jurisdiction of the common pleas was restricted so as to except causes wherein the right or title of any lands, tenements, or hereditaments, were in any wise concerned. After 1751 the supreme cornet fixed the times of holding the circuits. The jurisdiction of these several courts remains to this day, as established by the ordinance of 1724. The legislature from that time endeavored to regulate the practice and fees, generally without success, their acts, except in refer- ence to justices' courts, the jurisdiction of which was gradually enlarged, having been commonly disallowed by the king.

It was provided by the original instructions, that appeals might be made from the courts, to the gov- ernor and council, in all cases where the sum or value appealed from exceeded one hundred pounds, with an ultimate appeal to the king's privy council, where the • sum or value appealed from exceeded two hundred pounds. The only material changes since made in the judicial system first established, have been the estab- lishment of an orphans' court in each county, and the giving to the circuit courts in each county original jurisdiction in all cases at common law, including cases where the title to land is in question, and equity powers in mortgage cases.

10 REMINISCENCES OF NEW JERSEY.

A court of chancery was recognized as an essential part of the judiciary, from the first, although no sep- arate tribunal for the exercise of equity powers ap- pears to have been instituted, either in East or West Jersey. Lord Cornbury provided by ordinance, that the governor or lieutenant-governor for the time be- ing, and any three of the council, should constitute a court of chancery, and hear and determine causes, according to the usage or custom of the high court of chancery in the kingdom of England. Afterwards Governor Hunter claimed a right to exercise the powers of chancellor alone, without the aid of his council, and this course was sanctioned by the king. In 1770 Governor Franklin, with the advice of his council, adopted an ordinance, by which, after recit- ing that there had always been a court of chancery in the province, and that the same required regu- lation, it was ordained, that his Excellency, William Franklin, be constituted and appointed chancellor, and empowered to appoint and commission such mas- ters, clerks, examiners, registers, and other necessary officers as should be needful in holding the said court, and doing the business thereof; and also to make such rules for carrying on the business of the said court as from time to time should seem necessary. The constitution and powers of this court remain un- altered, except that the governor is no longer chan- cellor ; the office of register has been abolished, and the appointment of a clerk conferred on the gov- ernor and senate. The rules of practice were first systematized, so that the business transacted therein became important, in 1818, during the chancellor- ship of Governor Williamson. No appeal was pro- vided for, unless it was to the king in council, and no

CONSTITUTION .AND GOVERNMENT OF THE PROVINCE. 11

one is known to have been otherwise demanded until in 1799, the legishxture enacted, that an appeal might be taken to the court of errors and appeals.

The ecclesiastical jurisdiction was reserved to the Bishop of London, excepting only, " the collating to benefices, granting licenses for marriages, and the probate of wills," which were assigned to the gov- ernor. By virtue of this grant, he became the Or- dinary and Metropolitan of the province, having all the powers in regard to the estates of deceased per- sons, which, in England, belonged to the courts of the bishop and archbishop. As judge, therefore, of the " Prerogative Court," which is the title of the archbishop's court, he had the sole and exclusive juris- diction of matters relating to wills, to administrations, and to guardianships, with no superior but the king and his privy council.

It being very inconvenient, and indeed almost im- possible, for the people in all parts of the province to resort to the governor, especially when he resided in New York, he appointed deputies, called surrogates, as was also the practice in England, to act for him. In 1720, Michael Kearney was commissioned, under the great seal, surrogate of