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It will be remembered that the first Legislature in East Jersey which took any notice whatever of courts, met in 1675. The first Legislature in West Jersey which constituted any courts, so far as can now be ascertained, met in 1682. At this meeting County Courts, which were called Courts of Sessions, were created. But these courts at first were established only in Burlington and Salem Counties. In 1693, they were extended to Cape May, which was then a new county.

Before this time, courts for the trial of small causes existed all over West Jersey. They were held by one justice of the peace and had jurisdiction over actions which involved forty shillings and under. An appeal lay from them to the County Courts, which met quarterly and were held by three justices of the peace of the county. These courts could not try any indictments for murder and treason, but with these exceptions they had unlimited jurisdiction over all causes, both civil and criminal. They were, in fact, the great courts of the Province, and from them, for many years, there was no appeal.

In 1693, a Supreme Court of Appeals was created, of which the judges were one or more of the justices of the counties, with one or more of the members of the Governor's Council; any three of whom, one being of the Council, made a quorum. At first, this court was strictly appellate, but in 1699, it was materially changed. It then became the Provincial Court, and was held by three judges appointed by the Legislature, or House of Representatives, as that body was then called, and one or more of the justices of the peace of the counties. Two of the judges appointed by the Legislature, in connection with three of the justices, constituted a quorum. It had original as well as appellate jurisdiction, sat twice a year, and from its judgments for twenty pounds and more, an appeal could be taken to the General Assembly. In the same year a Court of Oyer and Terminer was established for the trial of criminal cases. The court was held by a judge appointed by the Governor and Council, assisted by two or more of the justices of the county where the crime was committed.

West Jersey was very largely under the influence of the Quakers, and the spirit of those peace-loving men was manifested in jurisprudence and in the formation of their courts. Up to the time of the creation of the Oyer and Terminer, there was no tribunal in West Jersey which could try a capital offence. In fact, the punishment of death for any offence was not mentioned in any of their statutes. The crimes of murder and treason were triable by the Court of Oyer and Terminer;

COMPARISON OF EAST AND WEST JERSEY COURTS.

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but if the accused were convicted, his punishment was referred to the Governor and his Council.

The contrast between this penal code of West Jersey and that existing in East Jersey was most remarkable. The settlers in East Jersey drew largely upon the Mosaic law for penalties for crime. In cases where domestic animals were the occasion of injury to any human being, this was most specially the case; the provisions of the Levitical law being literally copied. In this province, there were thirteen crimes. punishable with death, to wit: Murder, Arson, Perjury, "Stealing away any of mankind," Burglary and Robbery, on the commission of the third offence, Witchcraft, Conspiracy to invade or surprise a fort, Theft, where it was incorrigible, Smiting or cursing a father or a mother, on the complaint of the parent, Rape, subject to the discretion of the court, and gross and unnatural licentiousness. But life, in no instance, could be taken without a trial by jury and the evidence of two or more witnesses was invariably required. A jury was guarantied in all cases, whether civil or criminal. The punishment by whipping entered very largely into the penal code of East Jersey.

In West Jersey there was no enactment which provided any punishment for the crimes of murder, treason, or arson; and during the twenty-four years of the Quaker administration there was not a single case of an indictment for any of these offences. There was, in fact, no mention of a punishment by death for any crime in the statute book of the Province,

While the Puritan element in East Jersey thus asserted itself by these sanguinary laws, that same element was unsurpassed in its jealous preservation of the personal rights of the individual citizen, and in its protection of the suitors who sought the aid of the courts. In other directions, the influence of this element was manifest. It made the amplest provision for the education of the youth of the community. The foundation of the very best system for the maintenance of common schools was laid in an act passed in the early history of the province. It introduced, by solemn act of the Legislature, the pious custom of setting apart a day for public Thanksgiving, but the Puritan never learned the Quaker's true spirit of liberality in permitting others to worship God as they chose.

It is not known who was the author of that wonderful document called the "Concessions" which was the real constitution of the Province of West Jersey, though William Penn was one of its Proprietors

and doubtless a leader among its citizens. It was worthy of the broadest-minded statesman who ever ruled the destinies of a nation, and, considering the tendency of public sentiment of the time, it is amazing that such a document could have been produced. "No man nor number of men upon earth," says this immortal declaration, "have power or authority to rule over men's consciences in religious matters; therefore it is agreed and ordained that no person or persons whatsoever within the said Province (of West Jersey) shall at any time hereafter, in any way or upon any pretense whatsoever, be called in question, or in the least punished or hurt, either in person, privilege or estate, for the sake of his opinion, judgment, faith, or worship, in matters of religion.'

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The "Concessions" of Berkeley and Carteret were liberal and tolerant, but they were prompted by the desire to secure immigrants for the new colony, and were based upon selfish considerations. For once, avarice surrendered to principle; but the "Concessions" of West Jersey were the honest declarations of pure-minded, liberal-hearted men, who had learned mercy in the terrible fires of persecution, who desired to benefit their kind, and who determined to found a State upon the eternal principles of justice and truth, of righteousness and freedom. The Court of Chancery was not at first popular with the people of New Jersey. They originally submitted to the fact of its existence. and to its jurisdiction with a sort of protest. It is probable that in the early history of the colony a court of equity was not needed. In the simple methods of dispensing justice, the stricter rules of the common law were so tempered with equity that it was not necessary to resort to a court of chancery. Thomas Olive, Governor of West Jersey, would sometimes be called upon by suitors to determine controversies, when, sitting on a stump in his field, he would settle the dispute on the spot, and generally to the satisfaction of both parties.

The dislike of the people to the Court of Chancery was due, probably, to the fact that its procedure dispensed with a jury, and the Saxon element in the settlers revolted against a court which enforced decrees and judgments pronounced by a single judge. But the institution of equity tribunals was of English origin, and after a time of distrust and jealousy, this prejudice was gradually softened and finally dispelled.

It is very difficult to establish a time when the Court of Chancery began its existence as a separate institution. It certainly was in being early in the history of the province, before its division into East and West

Jersey-undoubtedly earlier than 1675. In that year the General Assembly enacted a statute providing that appeals from the County Courts might be made to the Bench "or to the Court of Chancery." The subject of this Court will be considered hereafter.

Although the character of Lord Cornbury was not such as to fit him to be intrusted with authority over the colonies, he had some ability and his efforts to organize the courts of New Jersey on a more systematic basis were eminently successful; to him and his guiding hand may be attributed the present condition of the legal tribunals of the State. There has been very little, certainly no substantial, change in the Constitution and procedure of the courts since his day. Before his time, the creation of courts and the election of judges were vested in the people and Legislature, the people electing the justices of the peace and the judges of the County Courts; the Legislature choosing the judges of the higher courts. By his commission, Lord Cornbury was vested with full power to "constitute and appoint Judges, and in cases requisite, Commissioners of Oyer and Terminer, Justices of the peace and other necessary officers and magistrates in our said Province, for the better administration of justice and putting the laws in Execution."

This authority was exercised by the colonial governors up to the time of the Revolution. For many years after that event the Legislature elected justices of the peace and the judges of the Court of Common Pleas; the Governor, by and with the advice and consent of the Council, until the Constitution of 1844, nominated the justices of the Supreme Court.

The Constitution of 1776 made no change either in the names, nor in the procedure, nor in the jurisdiction of the courts. It continued in force until 1844, when there was a very material change in some of the courts. The Court of Common Pleas and the Supreme Court remained the same; justices of the peace still had cognizance of small causes. But there was a vital alteration in the Court of Chancery. Up to that time, the Governor of the colony and of the State had been the chancellor, so that a lawyer was required to fill the office of chief magistrate. By this new organic law, the Governor ceased to be the chancellor and on him was laid the responsibility of selecting the justices of the Supreme Court and the chancellor; but this selection must receive the sanction of the Senate, which now took the place of the Council. Under the Constitution of 1776, the Governor was elected

from year to year; now his term expires only after three years and the chancellor's term was extended to seven. Appeals in the last resort, instead of being submitted to the Council, now go up to the Court of Errors and Appeals, composed of the chancellor, the justices of the Supreme Court, and six lay judges who are nominated to the Senate by the Governor. Under the new Constitution a return was had to the old method of electing the justices of the peace by the people.

There were two glaring defects in the jurisprudence of the State as established in this Constitution of 1844,-one, the composition of the Court of Appeals, in the introduction of the lay element; and the other, the election of justices of the peace by the people. Both were compromises, and, like most compromises, mischievous. For a time, under the new Constitution, the judges of the Court of Common Pleas were elected by the Legislature in joint meeting; but now, by statute, the responsibility of selecting these officers is laid upon the Governor, who nominates them to the Senate, which may confirm or reject the nominations.

When Lord Cornbury undertook the task of reconstructing the courts of his province, he found a framework ready to his hand which only. needed filling out and perhaps required some additions. The proprietary courts had met all the requirements of the community, but there were many inconsistencies and blemishes in them and a guiding master mind was needed to reduce them to order, lop off excrescences, introduce precision, make them consistent with each other, and, above all, produce system out of disorder. It is quite doubtful whether the measures he adopted originated entirely in his own mind; they hardly seem consistent with the frivolity and meanness of his nature. In fact, the conclusion can be fairly reached that he was very materially aided by a lawyer of mature life who came from England about that time, who had attained some eminence in his profession at home, and who afterward became the first Chief-Justice of New Jersey.

Lord Cornbury's efforts at reforming the courts was by ordinance, and without the intervention of the Legislature. He recognized in his ordinances, however, the action of his Council, which had been selected for him by his sovereign, to aid him in his responsible position of Governor. His first ordinance is not dated; but it was promulgated in 1704, and somewhat less than two years after he received his commission. By this ordinance he invested every justice of the peace with full jurisdiction over all causes of debt and trespass to the value of forty shil

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