IT is a romantic commonplace that a land without lawyers would be “worthy the name of Paradise,” and the pleasant fiction has been often repeated that New Jersey was once such a place.1 Even were it true in the beginning, according to a former attorney general of the state and future federal judge it could not have remained so for long. Inevitably, in the words of Richard S. Field, writing of New Jersey’s colonial system, lawyers “soon found their way into this Eden.”2
Law as a vocation emerged quite slowly in New Jersey, whose early codes included explicit prohibitions against advocacy for pay.3 But a dearth of lawyers didn’t mean a society without quarrels, lacking courts, judges or juries. With English rule came English legal practice, and there very soon appeared local courts, county courts, monthly courts of small causes, and higher tribunals, including those of Assize, Common Right and Chancery, whose historical development has occasioned no small amount of debate and confusion.4 A full-fledged judicial system had only to await the Ordinance for Establishing Courts of Judicature, issued in 1704 by the first royal governor, Lord Cornbury. This, according to ex-attorney general Field, was the “single redeeming feature” of an otherwise entirely disreputable colonial administration.5
Jurisprudence happened not to number among the disciplines in which historian William A. Whitehead schooled himself, but he passed much of his adult life in the presence of men versed in the law. His wife’s brother, for one, a Newark attorney, became a leading spokesman for the bar in both state and national affairs. As one of the founding officers of the state’s historical society, Whitehead was surrounded by jurists of note. Moreover, the period in which he was immersed spoke most clearly through its laws and legal filings. The so-called Elizabethtown Bill in Chancery of the 1740s, filed on behalf of the East Jersey Proprietors, together with the anti-proprietary Answer to the Bill, are the most obvious examples of legal texts through which that early history was to be studied.6
Whitehead’s knowledge of early New Jersey’s legal landscape proved crucial to Richard Field as he prepared his chronicle of the colonial bench and bar. Field asked to borrow Whitehead’s own copy of the Answer, an imprint so rare that the only copy locally known was that in the library of Whitehead himself.7 Field also needed assistance in elucidating the careers of several obscure chief justices, including those whose appointments in the late 1750s, in place of the long-serving Robert Hunter Morris, fueled a bitter dispute turning on the question of whether judges held their positions “during good behavior” or only “during the royal pleasure.”8 The affair, which precipitated the removal of New Jersey’s governor, had “a direct influence in hastening the separation of the Colonies from the mother country,” according to Whitehead, who called to mind one of the twenty-seven grievances that would be lodged by the Second Continental Congress against the king: “He has made Judges dependent on his Will alone for the tenure of their offices….”9
Peculiarly adept at bringing light to some of the darker recesses of the juridical past, Whitehead was often the first to think those dark places worth exploring. One of his earliest published articles, for a forgotten monthly magazine known to exist in only two issues, charted a remarkably well-organized campaign by New Jersey lawyers against the provisions of the Stamp Act. Gathering at Perth Amboy in September 1765 (“the arrival of the stamped papers being then daily looked for”), the men of the profession unanimously agreed not to purchase the stamps and, while working for the repeal of the act, to abstain from all legal practices for which they were required.10 The lawyers’ course demonstrated to Whitehead their “firmness, disinterestedness, prudence and patriotism”:
it prevented any immediate collision with the government;–it called for no violation of official oaths or resignations by the functionaries of the different courts; and although it would inevitably operate much to their pecuniary detriment, yet they had the satisfaction of knowing that it rendered the stamps entirely useless as a source of revenue to the crown.11
Such a firm but dispassionate stance altered the mood of the colony almost overnight. Previously, even the most fervent American patriots had viewed the Stamp Act as abusive but inevitable. They dreaded the day this oppressive enactment would come into effect as “the commencement of their slavery: and every city, town and village upon this vast continent resounded with the knell of departing liberty.”12
Now, however, the unanimity of the bar’s response emboldened some of its members to go a step further. At a February 1766 meeting in New Brunswick, “several hundreds” of citizens from Middlesex County and parts west banded together under the name “Sons of Liberty,” pressing the lawyers to reopen the courts and “immediately proceed to business as usual without stamps….” By a majority vote, the attorneys opted to maintain a more moderate course: they would wait until the first of April, at which time, “unless the stamp act was suspended or repealed they would join in opposition to it with their lives and fortunes.”13
New Jersey, so far had escaped the violence or threats of violence that had occurred in other provinces. Its example of peaceful protest, wrote Field, “was soon followed in other Colonies; but like every thing else of interest and importance connected with New Jersey, it hardly receives a passing notice on the page of American history.”14
Whether the nonviolent approach had had an effect or not, Parliament’s prompt repeal of the Stamp Act at least signaled that violent disorders need no longer be feared. Uprisings a few years later, however, showed that such dangers couldn’t always be avoided or a peaceful resolution of conflict hoped for, nor could the legal profession be expected to distinguish itself as admirably as it had some years previous.
While Whitehead probably had studied both these movements concurrently, a question from a fellow officer of the Historical Society prompted his notes of the later unrest, now seven or eight years old, to be printed in 1846 in the pages of the Newark Daily Advertiser. His account was merely a “fragment,” he said, “less minute in its details, than it would have been had it been written with special reference to the recent inquiry.”15
Recently, a pamphlet had come to light spelling out grievances against Monmouth County lawyers, and providing details of a “riot” that occurred there on two consecutive days in July 1769.16 This had been a time of scarcity that threatened many with ruin: in the measured words of Whitehead, “the business prospects of the people assumed an unfavorable aspect, debtors were unable to pay, bankruptcies and suits at law were numerous.” In the midst of these hardships, a crowd of “no less than two or three Hundred,” calling themselves “Liberty Boys,” surrounded the Freehold courthouse in a bid to block the lawyers from entering and draw attention to what they regarded as unnecessary suits and exorbitant fees. The rioters “were successful the first day,” wrote Whitehead, “but the following morning were effectually opposed by the magistrates; the riot was subdued and the ring leaders imprisoned.”17
Complaints similar to those in Monmouth were circulating around the province, and a movement to rein in the attorneys took shape. A number of measures were proposed: “a diminution in the fees of the lawyers, a specification of items in their bills with a verification under oath, restrictions upon the institution of suits, and the extension of the powers of the justices of the peace.” But the provincial assembly acted on none of these, passing only a bill for the restructuring of debts that, according to Whitehead, “was productive of little good.” More violent demonstrations occurred in January 1770, in Essex County as well as at Freehold; in the latter place, the rioters came equipped “with clubs and other weapons,” and the court was forced to remain closed.
In Whitehead’s view, little benefit usually came from “popular measures of such disorganizing tendency,”18 and that was almost certainly true of these disturbances. The governor and assembly, in fact, were unified in their revulsion at the rioters’ tactics. Finding their grievances baseless, the legislature responded only with an act to limit costs in recovering debts under fifty pounds, and another “for preventing dangerous Tumults and Riotous Assemblies, and for the more speedy and effectual punishing the Rioters.”19
Whitehead ventured that, in their unified opposition to the Stamp Act’s implementation, New Jersey lawyers had been “perhaps equal if not superior in talents and character to those who at any subsequent period have upheld the honor of the State and of their own profession….”20 This bold evaluation finds no counterpart in his narrative of the protests against the legal profession that took place later in the same decade. His published “fragment” leaves us to guess how he may have assessed the respective merits of the two sides. It seems unlikely, however, that he fully concurred with the suspicions of Richard Field that most of “those who made war upon the lawyers” would later be found on the side of the king, making war against the republic.21
In his history of the provincial bench and bar, by way of contrast, Field left no doubt of his indebtedness to Whitehead, whose “intimate acquaintance with the history of New Jersey has enabled him to furnish me with much information that could have been obtained from no other source.” Privately, too, Field acknowledged the other man’s considerable expertise, as he anxiously put together a talk for the Historical Society on colonial jurists. “Fortunately,” he confided to his friend, “there will be but few among those I am to address who have lived as much in the past as you.”22
Copyright © 2026 Gregory J. Guderian
Last revised 2026.05.16
[1] “… it is recorded by an old historian, that it [New Jersey] was thought by some, even ‘worthy the name of paradise,’ because, in addition to its natural advantages, it had no lawyers, or physicians, or parsons.” William A. Whitehead, East Jersey under the Proprietary governments: a narrative of events connected with the settlement and progress of the province, until the surrender of the government to the Crown in 1702 [1703] (Collections of the New Jersey Historical Society, 1. Hereafter “Whitehead, East Jersey”) ([New York] 18461) 51, (Newark 18752) 58. Whitehead drew this anecdote from a conversation between a “Gentleman” and “one of the Proprietaries” reported in [John Oldmixon,] The British empire in America, containing the history of the discovery, settlement, progress and present state of all the British colonies, on the continent and islands of America (2 vols. London 17081) 1:144. Oldmixon’s long-deferred expanded edition (London 17412) omits the story.
[2] Richard S. Field, The provincial courts of New Jersey, with sketches of the bench and bar. A discourse, read before the New Jersey Historical Society (Collections of the New Jersey Historical Society, 3. New-York 1849. Hereafter “Field, Provincial courts”) 22-23.
[3] In 1676, the year of the colony’s division into East and West New Jersey, the East Jersey General Assembly enacted a ban on attorney’s fees, which was reaffirmed by the Fundamental Constitutions of 1683; the Concessions and Agreements of West Jersey prohibited only compulsory fees: see [Aaron Leaming and Jacob Spicer, comp.] The grants, concessions, and original constitutions of the Province of New-Jersey. The acts passed during the Proprietary governments, and other material transactions before the surrender thereof to Queen Anne (Philadelphia [1758]; repr. Somerville, N.J. 1881) 120, 163, 398.
[4] Among the earliest courts established on New Jersey soil were those at Bergen (1661), Monmouth (by 1667), Newark (1669) and Woodbridge (before 1670). County courts were erected in East Jersey in 1675, developing more organically in West Jersey. On courts under the proprietary governments see Whitehead, East Jersey (18461) 167, (18752) 243-244; Field, Provincial courts 4-14, 24-27; H. Clay Reed and George J. Miller, edd. The Burlington Court Book. A record of Quaker jurisprudence in West New Jersey 1680–1709 (Washington 1944) xl-lv. For the higher (appeals) courts see esp. Preston W. Edsall, ed. Journal of the Courts of Common Right and Chancery of East New Jersey 1683–1702 (Philadelphia 1937) 3-9, 140-144 et passim.
[5] Field, Provincial courts 42.
[6] Some account of Whitehead’s use of the Bill in Chancery and Answer may be found in my earlier posts 035–Renaissance man and 089–If so many.
[7] R. S. Field, Princeton 27 October 1848, to W. A. Whitehead, Manuscript Group 1258, New Jersey Historical Society Records, Box L7/13. Of the Answer, Whitehead wrote: “There are very few copies in existence; the writer has never seen but one, which is in his own possession.” Whitehead, East Jersey (18461) 86. Subsequently he was able to learn of two others: Whitehead, East Jersey (18752) 115. In 1929, the Answer was described as “The most wanted item of New Jerseyana.” [Joseph J. Felcone,] New Jersey books 1694–1900. A descriptive catalogue of the Joseph J. Felcone collection (2 vols. Princeton 2023) 1:18.
[8] Field sought Whitehead’s help with profiles of justices Robert Lettice Hooper, William Aynsley, Nathaniel Jones and Robert Hunter Morris himself. R. S. Field, Princeton 9 February and 27 April 1848, to W. A. Whitehead. Manuscript Group 1258, New Jersey Historical Society Records, Box L7/13. The information he obtained on Morris “was particularly acceptable, and will enable me to fill up some blanks in my notice of him. In fact,” he wrote to Whitehead, “if my paper should be found to possess any interest or value I shall be mainly indebted to you for it.” R. S. Field, Princeton 10 May 1848, to W. A. Whitehead. Manuscript Group 1258, New Jersey Historical Society Records, Box L7/13 (hereafter “Field, 10 May 1848, to Whitehead”).
[9] William A. Whitehead, “The appointment of Nathaniel Jones as Chief Justice of New Jersey, in 1759. Read before the Society, May 21, 1857,” Proceedings of the New Jersey Historical Society [ser. 1] 8:1 (1856) (70-74) 74 and cf. 63. Whitehead had taken note of the episode earlier: G. P., “A disappointed judge,” Newark (N.J.) daily advertiser 9 April 1842 2:3. To treat the controversy over Robert Hunter Morris’s tenure chiefly as an element of a larger constitutional struggle ignores the part played by proprietary interest, as shown by Jerome J. Nadelhaft, “Politics and the judicial tenure fight in colonial New Jersey,” The William and Mary quarterly 28:1 (January 1971) 46-63.
[10] “Historical sketches. No. II. The proceedings of the lawyers of New Jersey in reference to the stamp act,” New-Jersey magazine (February 1841) 29-31 (hereafter “‘The proceedings of the lawyers’”). Newark bookseller and stationer Alfred L. Dennis introduced his New-Jersey Magazine in January 1841, “with feelings of some anxiety,” but “unwilling that it should be said of New Jersey, that she cannot claim any manifestations of literary excellence above the dignity of a common newspaper….” “Editor’s table,” New-Jersey magazine (January 1841) 23-24. History would be “a favorite department with us,” the editor promised, and both the January and February numbers carried unsigned pieces by Whitehead. No further issues are known to have appeared.
[11] “The proceedings of the lawyers” 29. Whitehead’s narrative is drawn partly from letters published in newspapers of neighboring provinces: The Pennsylvania journal 3 October 1765, and New-York gazette; or, the weekly post-boy 24 October 1765. These accounts were subsequently reprinted in William Nelson, ed. Documents relating to the colonial history of the State of New Jersey, 24. Extracts from American newspapers, relating to New Jersey. 5. 1762–1765 (Archives of the State of New Jersey, ser. 1, 24. Paterson, N.J. 1902) 639-640 and 660-662. (The author of the piece in the New York paper has been identified as Elias Boudinot.) Whitehead also inserted, in a footnote to “The proceedings of the lawyers” 31, the text of an “interesting” letter then in his possession (now in Manuscript Group 7, New Jersey Manuscript Collection, New Jersey Historical Society, vol. 2, no. 150), in which Newark attorney David Ogden expressed the hope that a second meeting would not “vacate” the September agreement in favor of more radical action. The text of Ogden’s letter was later printed in Proceedings of the New Jersey Historical Society, ser. 2, 1:1 (1867) 41-42, and in Frederick W. Ricord and Wm. Nelson, edd. Documents relating to the colonial history of the State of New Jersey. 9. Administrations of President John Reading, Lieutenant-Governor Thomas Pownall, Governor Francis Bernard, Governor Thomas Boone, Governor Josiah Hardy, and part of the administration of Governor William Franklin. 1757–1767 (Archives of the State of New Jersey, ser. 1, 9. Newark 1885. Hereafter “NJA ser. 1, 9”) 531-533.
[12] “The proceedings of the lawyers” 30.
[13] “The proceedings of the lawyers” 31. See New-York gazette; or, the weekly post-boy 20 February 1766, reprinted in NJA ser. 1, 9:546-548.
[14] Field, Provincial courts 160.
[15] G. P., “Monmouth and Essex riots 1769 and 1770,” Newark daily advertiser 16 May 1846 2:4 (hereafter “G. P., ‘Riots’”).
[16] Liberty and property, without oppression. As is set forth in sundry letters, directed to the public of the County of Monmouth, in the Province of New-Jersey (n.p. [1769]; hereafter “Liberty and property, without oppression”). This rare pamphlet, “recently [ca. 1846] found in Monmouth County and presented to the Historical Society” (G. P., “Riots”), is liberally sampled in William J. Eisenring, “Monmouth and Essex Counties’ 1769–70 riots against lawyers: predecessors of revolutionary social conflict,” New Jersey history 112:1-2 (Spring/Summer 1994) 1-18.
[17] Liberty and property, without oppression 15; G. P., “Riots.”
[18] G. P., “Riots.” Whitehead elsewhere characterized the administration of Lord Cornbury as “unpopular [emphasis mine] and disorganizing”: William A. Whitehead, Contributions to the early history of Perth Amboy and adjoining country, with sketches of men and events in New Jersey during the provincial era (New York 1856) 149.
[19] Report of Richard Jackson, Esq., on eight Acts passed in the Province of New Jersey in March, 1770, in Frederick W. Ricord and Wm. Nelson, edd. Documents relating to the colonial history of the State of New Jersey. 10. Administration of Governor William Franklin. 1767–1776 (Archives of the State of New Jersey, ser. 1, 10. Newark 1886) (233-235) 234.
[20] “The proceedings of the lawyers” 29.
[21] Field, Provincial courts 173. Whitehead conceded that many of the New Jersey lawyers who, during the Stamp Act crisis, had been “warmly opposed to the encroachments of power and ministerial influence” would eventually abandon the colonial cause, “rather than countenance a resort to arms to procure a redress of grievances….” “The proceedings of the lawyers” 29. Field made his opinion of the 1769-70 campaign against lawyers quite plain: the agitation of those “looking round for the causes of their sufferings, and not taking the trouble to search very far for them,” had led to “tumults and riots of the most disgraceful character.” Field, Provincial courts 164-165.
[22] Field, Provincial courts xi; Field, 10 May 1848, to Whitehead.