was consummated, they had no right to complain. And it is but fair to say that, whatever abuses of authority may have been committed by the Royal Governors in reference to other matters, this power seems, in every instance, to have been exerted with great judgment and discretion.

It is then to the Ordinances of the Governor and Council that we are to look, for the frame and constitution of our Courts after the Surrender. The first Ordinance for the establishment of Courts of Judicature in the Province of New Jersey, was that of Lord Cornbury in 1704. It is really gratifying to be able to find a single redeeming feature in the administration of this weak, corrupt, and tyrannical man, who disgraced the sovereign whose representative he was, and dishonored the noble ancestry from which he was sprung. But he is entitled to the credit of having laid the foundation of our whole judicial sytem; and of having laid it well. True, the materials for such a work were found in the several Courts which existed under the Proprietary Government, and of which we have already spoken: but he reduced them to order, and gave them shape, and beauty, and proportion. All that has been done from that day to this, has been but to

1 Appendix C.

fill up, as it were, the outline which he sketched; to add some additional apartments to the judicial edifice which he constructed.

He gave to Justices of the Peace cognizance in all cases of debt and trespass to the value of forty shillings, with the right of appeal to the Court of Sessions where the sum in controversy was over twenty shillings.

He ordained that there should be a Court of Common Pleas kept and holden in every County of the Province, at the place where the General Courts of Sessions were held, and to begin immediately after the Sessions had ended, with power to hear and determine all actions, triable at Common Law, of what nature or kind soever; subject to a removal to the Supreme Court, either before or after judgment, where the matter in dispute exceeded ten pounds, or the title to land came in question.

The General Sessions of the Peace were directed to be held four times a year in every County, at the times and places mentioned in the Ordinance. For the County of Middlesex they were to be held at Amboy; for Bergen at Bergen; for Essex at Newark; for Monmouth at Shrewsbury; for Burlington at Burlington; for Gloucester at Gloucester; for Salem at Salem; and for Cape May, at

the House of Shamger Hand. In Essex and Salem alone have the seats of justice remained unchanged, nor there, without some fierce struggles for a removal, the memory of which remains to this day.

At Perth Amboy and Burlington, alternately, was to be held a Supreme Court of Judicature, which was fully empowered to have cognizance of all pleas, civil, criminal, and mixed, as amply, to all intents and purposes, as the Courts of Queen's Bench, Common Pleas, and Exchequer, in the kingdom of England have, or ought to have. And if the question were now asked, what is the jurisdiction of the Supreme Court of the State of New Jersey as at present constituted, the only answer that could be given would be in the language of Lord Cornbury's Ordinance: they have all the jurisdiction which the Courts of Queen's Bench, Common Pleas, and Exchequer in England have, or ought to have. So little addicted to change have we shown ourselves in reference to our Courts! So truly conservative in its character has been the history of our State! Into this Court might be removed from the Courts of Common Pleas and Ses

'Nothing is here said as to the place where the Courts for the County of Somerset were to be held. They were probably held at the same place with the Courts for the County of

Middlesex; for by the Ordinance of Governor Hunter in 1714, Courts for both Middlesex and Somerset, were directed to be held at Perth Amboy.

sions of the Peace, any plea, action, information, or indictment, therein depending, or upon which judgment had been rendered.

There were to be two Terms of the Supreme Court every year, each Session not to exceed five days; and once every year, if need should so require, a Circuit was to be held by one of the Justices of the Court in every County. The Judges of the several Courts were authorized to make rules of practice for regulating their proceedings; and finally, it was ordained, that all issues of fact should be tried by twelve men of the neighborhood, "as it ought to be done by law."1

Such was the constitution of our Common Law Courts nearly a century and a half ago, and such in all its leading features it remains to this day. I

The

1 It will be seen that no provision is made in this Ordinance for a Court of Appeals in the last resort. constitution of this Court was not left to the Governor and Council, as was that of the other Courts, but it was erected by the Queen in Council, and made part of the Instructions to Lord Cornbury. It was there provided that Appeals might be made in Cases of Error from the other Courts to the Governor and Council; but if any of the members of Council were Judges of the Court from which the Appeal was taken, they were not to vote upon the Appeal, but might be present

at the hearing thereof and give the reasons for their judgment. And a further Appeal was to be allowed from the Governor and Council, where the sum in controversy exceeded two hundred pounds sterling, to the Queen in Privy Council.

2 These Courts continued without any essential change to the Revolution. The Constitution of 1776 merely directed how the Judges were to be appointed, thereby tacitly adopting them, with all the judicial power they had at the time. And shortly after the adoption of the Constitution, the Legislature enacted, "that the sever

have dwelt the longer upon this Ordinance, because it seems to have escaped entirely the notice, not only of the Historians of New Jersey, but of those who have professedly written upon the subject of our Courts of Justice. Even William Griffith, the learned compiler of the Law Register, whose researches into the origin and progress of our Judiciary System are so well known to my professional hearers, was evidently not aware of the existence of such an Ordinance. After reciting the laws that were passed during the Proprietary Government of East Jersey in reference to the Court of Common Right, he goes on to say, that it was under these laws alone, that the Supreme Court acted from the Surrender in 1702 to the 29th of April, 1723; losing sight, not only of the Ordinance of Lord Cornbury, but also of a similar Ordinance of Governor Hunter in 1714.2 The truth is, that these Ordinances are not to be found in the

al Courts of Law and Equity of this State shall be confirmed and established, and continue to be held with the like powers under the present government, as they were held at and before the Declaration of Independence."-Pat. Laws, p. 38.

Nor did the Constitution of 1844 make any alteration in the character of our Courts, save only that the Governor was no longer to be Chancel

lor, and that the Court of Errors and Appeals in the last resort, instead of consisting of the Governor and Council, was to be composed of the Chancellor, the Justices of the Supreme Court, and six Judges to be appointed for that purpose.

1 Griffith's Law Reg., IV. 1175, Note 1.

2

Appendix D.