6

3

Thus the orders and regulations made by overseers of highways were invalid without their approval; they could hear appeals from the decisions of two justices in case of removal of paupers under the law of settlement; determine the number of constables or overseers of highways which should be elected in the respective precincts; and grant licenses to retailers of liquor. They were also authorized to appoint inspectors of flour and repackers of beef; and to nominate assessors, collectors, and supervisors, on failure of towns to elect the same. Moreover a portion of the executive business of the county was transacted by one or more justices in the respective districts where they resided. Thus, in several counties, a single justice of the peace might, whenever he thought fit, order the overseer to repair any road or highway within his district. In Schenectady the resident justices were empowered to appoint firemen and a night watch and establish ordinances for their government. And in a number of counties, any three justices could grant exemptions from the statute for the regulation of inns and taverns."

1 Van Schaack, Laws of N. Y., I, 3.

2 Van Schaack, Laws of N. Y., II, 751.

So in Dutchess and Orange counties: Van Schaack, Laws of N. Y., I, 245-6.

4 So in Cumberland County: Van Schaack, Laws of N. Y., II, 647.

5 In several counties: Van Schaack, Laws of N. Y., II, 609.

6 Van Schaack, Laws of N. Y., I, 56.

'So in Dutchess, Cumberland, Gloucester, Orange, King's, Queen's, and Richmond counties: Van Schaack, Laws of N. Y., II, 664, 773, 490, 804, 782; I, 265.

8 Van Schaack, Laws of N. Y., II, 731-2.

"The New York laws relating to this subject are characteristic of the age. It was enacted that every inn-keeper should provide "three good spare beds, two of which to be feather beds, with good and sufficient sheeting and covering for such beds respectively, and good and sufficient stabling and provender of hay in Winter, and hay or pasturage in Summer, and grain for six horses or other cattle upon pain of forfeiting for every offence the sum of twenty shillings:" Van Schaack, Laws of N. Y., II, 798. It was even forbidden to give credit to anyone, except travellers, for above six shillings: Ib., I, 287.

(d).-The County as a Military and Representative unit.

The remaining functionaries of the county were the sheriff and coroner both of whom, like the clerk and justices, were nominated by the governor. All officers were paid in fees.1

It is worthy of note that the county in New York was the unit of representation in the assembly: according to the early English precedent two delegates were elected in each; and the elections were held by the sheriff as returning officer.3 Moreover, just as in the fourteenth and fifteenth centuries, the sheriff seems to have abused his opportunities to pack the house in the interest of party. It is complained in 1698 that four delegates were returned for New York and Orange counties without an election; and in 1700 there is record of the arbitrary conduct of the sheriff in the admission of freemen to vote.5

In New York, as in Massachusetts, the county was used in connection with the militia; usually each had its regiment under a colonel or lieutenant colonel, commissioned by the governor." Previously, under the Duke of York's administration, each town had maintained its company; and the requirements as to age, trainings, and arms were similar to those prevailing in New England.

1O'Callaghan, Doc. Rel. to Col. Hist., VIII, 457.

2 New York city returned 4 delegates; and the "borgh" of Westchester, the manors of Rensselaerswyck, Livingston, and Cortlandt, each one: O'Callaghan, Doc. Rel. to Col. Hist., VIII, 443-4; Van Schaack, I, 67, 107, 129, 183. 3 See the law of elections in Van Schaack, Laws of New York, I, 28–31.

4

* O'Callaghan, Doc. Rel. to Col. Hist., IV, 322-3.

'O'Callaghan, Doc. Rel. to Col. Hist., IV, 621.

O'Callaghan, Doc Rel. to Col. Hist., IV, 29; VIII, 450-1. See, however, the elaborate act of 1772; Van Schaack, II, 668–74.

'Duke's Laws, 38-44; Fernow, Doc. Rel. to Col. Hist., XIV, 672. Part II of Vol. XIII and Part II of Vol. XIV of Doc. Rel. to Col. Hist. of New York, edited by Mr. Fernow, contain a great deal of matter touching every department of government during the proprietary regime. The second volume of Brodhead's excellent History of New York is also indispensable; and many details will be found in Vol. I of Chalmer's Political Annals, I, 573 ff.

II. THE NEW JERSEY COUNTY.

(a).—Under the First Proprietors.

The history of New Jersey during the colonial era falls naturally into three divisions: the period of the first proprie tors, beginning with the grant to the Duke of York and his re-conveyance to Lords Berkeley and Carteret, in 1664, and extending to 1682; that of the twenty-four proprietors reaching from the latter date to 1702; and the period of the royal province ending with the Revolution.'

During the first period the history of the county begins. By the "Concessions" of 1665, the first charter or constitution of New Jersey, the assembly was granted power to erect courts, limit their jurisdiction, and appoint their executive officers.3 Accordingly in 1675, an act was passed providing for a system of judicature. The lowest tribunal was the town court for the trial of small causes under forty shillings, held "by two or three persons of whom a justice of the peace was to be one.' 994 At the same time four counties were somewhat vaguely defined, each with a "county court" or "court of sessions" meeting twice a year. The judges of these courts, it is important to observe, were elected by the people of the respective districts; and their jurisdiction extended to "all causes actionable," with appeal to the "Bench" or to the "Court of Chancery:" the former being probably the provincial court of assize."

For the materials of this brief sketch I am chiefly indebted to Field's Provincial Courts of New Jersey, in Coll. of N. J. Hist. Soc., Vol. III, and Prof. Scott's Influence of the Proprietors in Founding the State of New Jersey. Several documents contained in the first four volumes of the New Jersey Archives have also been of service.

"The text will be found in New Jersey Archives, I, 28-43.

3 New Jersey Archives, I, 32; Field, Provincial Courts, 5; Scott, Influence of Proprietors, 7.

Field, Provincial Courts, 7.

5 Summarized from Field, Provincial Courts, 7-10.

(b).—Under the Second Proprietors.

In 1682-the first year of the second period-the judicial system of East Jersey was reconstructed. The town courts remained; but now either party could demand a jury even in the smallest cases. The jurisdiction was divided into four counties, each with a "court of quarter sessions" composed of the justices of the peace, three being necessary for a quorum.3 From the quarter sessions appeal lay to the "court of common right," composed of at least six members and exercising jurisdiction in all causes, both in law and equity. The office of high sheriff for each county was now first created; and subsequently that of county treasurer appears.5

During this period the county seems to have been of significance mainly as a judicial district. But in fiscal matters, at least, the quarter sessions discharged the functions of an administrative board. Not only was the court authorized to levy rates for the building of county prisons and village pounds, and to appoint collectors and receivers of the same; but there was instituted, by various statutes, a system, or rather habit, of co-operation between town and county in the matter of taxation and equalization of assessments, which constitutes another important precedent for the mixed township

Field, Provincial Courts, 11; but the lowest court seems now to have been held by a single justice of the peace-whether with or without the two others elected by the people, I am in doubt: see the letter of Lord Cornbury, in Archives of New Jersey, III, 4.

2 Bergen, Essex, Middlesex, and Monmouth; Middlesex, however, was divided in 1688, a fifth county, Somerset being formed: Field, Provincial Courts, 11, note 3.

3 Scott, Influence of the Proprietors, 21, note; Field, Provincial Courts, 12. This court seems to have been modelled on the courts of Scotland, through influence, probably, of Robert Barclay and other Scotch proprietors: Field, Provincial Courts, 12-13.

5 Field, Provincial Courts, 12; Scott, Influence of Proprietors, 22–3, note.

county system of the present day.' Thus in 1686, rates for highways, laid out by county commissioners appointed by the general assembly, and taxes for all other public purposes within the limits of the town, were to be levied by four or five assessors elected by the people of each town; and the justices of the county court were authorized, with the consent of a majority of the assessors, "to approve, amend, and confirm" the same. Again in 1693, "each town in the county was empowered to choose one or more men to join with the justices of the county court, annually, to adjust the debts of the county and assess taxes for their payment.'

"2

(c).-Under the Royal Province.

We now come to the third phase in the history of the New Jersey county. Two years after the union of the two colonies. in the royal province, the judicial organization was brought into general harmony with that of New York and Massachusetts. By the Ordinance of Lord Cornbury, 1704, “general sessions of the peace" and "courts of common pleas," on the usual model, with appeal to the supreme court of judicature, were established; and single justices of the peace could try forty shilling cases of debt and trespass.3 Various other ordinances were subsequently enacted, but the essential features of the system established by Lord Cornbury remained undisturbed until the Revolution.*

This interesting fact has been pointed out by Prof. Scott, Influence of Proprietors, 19-23, from whom the details here given are taken. 2 Scott, Influence of Proprietors, 22.

During this period West Jersey had essentially the same county organization as the eastern division: Field, Provincial Courts, 24–5.

3 See text of the ordinance of 1704 in Field, Provincial Courts, 256-62; also Queen Anne's Instructions to Lord Cornbury in Archives of N. J., II, 506-36. For the date of Cornbury's ordinance, see Field, 42, 50.

Field, Provincial Courts, 263 ff., gives the text of these acts. See also Archives of N. J., III, 4, 72; IV, 166.