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. 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.”
Law as a vocation emerged quite slowly in New Jersey, whose early codes included explicit prohibitions against advocacy for pay. 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. 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.
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 colonial 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.
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 to the Bill in Chancery, an imprint so rare that the only copy locally known was that in the library of Whitehead himself. Field needed further 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.” The affair, which resulted in 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….”
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 endeavoring to have the law repealed, to abstain from all legal practices for which they were required. Their course demonstrated to Whitehead the lawyers’ “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.
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. The day this oppressive enactment came into effect would mark “the commencement of their slavery: and every city, town and village upon this vast continent resounded with the knell of departing liberty.”
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” and pressed the lawyers to reopen the courts, and “immediately proceed to business as usual without stamps….” By a majority vote, those assembled 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.”
So far, the colony had escaped the violence or threats of violence that had occurred in other provinces. The New Jersey 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.”
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. The 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.”
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. 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.”
Similar complaints circulated 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 remained closed.
In Whitehead’s view, little benefit usually came from “popular measures of such disorganizing tendencies,” 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.”
In their unified opposition to the Stamp Act’s implementation, New Jersey lawyers had been “perhaps equal,” Whitehead ventured, “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….” 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 “fragment” published in the Newark Daily 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 Richard Field, who suspected most of “those who made war upon the lawyers” as later to be found on the side of the king, making war against the republic.
In the preface to his history of the provincial bench and bar, Field left no doubt of his indebtedness to William A. Whitehead: “His intimate acquaintance with the history of New Jersey,” Field wrote, “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.”
Copyright © 2026 Gregory J. Guderian