David Brearley


Signer of the U. S. Constitution, early New Jersey Chief Justice and a staunch patriot, David Brearley played a key role in Washington’s successes in our region. In “The Courts and Lawyers of New Jersey,” by E. Q. Keasbey, A. M., LL. B. dated 1912, David’s value as a legal pioneer is explained in detail.


The next Chief Justice [after Robert Morris] was Lieutenant-Colonel David Brearley, who was a lawyer at Allentown, in Monmouth County, and about thirty-four years of age. His opinions during the eleven years of his service have not been reported, but he has the distinction of having made the first judicial decision in the United States to the effect that a statute in violation of the constitution is void. The case was Holmes v. Walton, decided in 1780, an account of which of which was given in Chapter IX, page 95, above. There is a pamphlet published by Dr. Austin Scott, of New Brunswick, giving a full account of the various phases of the case and referring to the records. Holmes was convicted by a jury of six men under the act of October 8, 1778, for having brought goods from within enemy’s lines, and on certiorari to the Supreme Court it was contended that the conviction was unlawful, one of the reasons assigned being that the jury consisted of six men only, contrary to the constitution of the State, adopted July 2, 1776. Such a jury was authorized by the Small Cause acts of 1748 and 1775. The case was argued November 11, 1779, and the court took it under advisement, and there are records of several continuances, and judgement was given on September 7, 1780, David Brearley, C. J., Isaac Smith and John Cleves Symes, JJ., being on the bench, and they delivered their opinions seriatim for the plaintiff in certiorari.


The opinions cannot be found, and were probably oral, but Professor Scott says there exists incontestable proof as to the import of the opinion of the Chief Justice. On the afternoon of the eight of December, 1780, in the House of Assembly, a petition from sixty inhabitants of the county of Monmouth was presented and read, complaining that the Justices of the Supreme Court have set aside some of the laws as unconstitutional and made void the proceedings of the magistrates, though strictly agreeing to said laws, and it appears from the Supreme Court files that in the new trial which was ordered and took place, Wilcox, counsel for Holmes, in the course of his argument said that the new act providing for the trial by a jury of twelve men did not apply, and that, as a trial by six men is unconstitutional, there is no law existing by which this cause could be tried. The files of the Supreme Court in this cause may now be had in Envelope 44928. Professor Scott points out that this decision of Chief Justice Brearley and his associates, declaring a law to be unconstitutional, was rendered prior to the decision of Trevett v. Weeden, in Rhode Island, in 1786, and Bayard v. Singleton in North Carolina, in 1787, both of which involved more or less the constitutional right of a trial by jury.


The decision in New Jersey was referred to Gouveneur Morris in an address to the Pennsylvania Legislature, urging them not to pass a law repealing the charter of the National Bank. In the course of that address he says, “A law was once passed in New Jersey which the judges pronounced unconstitutional, and therefore void. Surely no good citizen can wish to see this point decided in the tribunals of Pennsylvania. Such power in judges is dangerous, but, unless it somewhere exists, the time employed in framing a bill of rights and form of government was merely thrown away.”


The case of Holmes v. Walton was referred to by Chief Justice Kirkpatrick in State v. Parkhurst, and he said it was not a judicial decision, but one recognized and acquiesced in by the legislative body of the State.


Judge Elmer says that Chief Justice Brearley had the reputation of a faithful, reliable judge, and was highly esteemed. In 1781 he received the honorary degree of master of arts from Princeton College. He was a delegate to the convention which framed the constitution of the United States and one of the signers, and afterwards as a member of the State convention voted for its ratification. He was chosen a Presidential elector in 1788 and joined of course in the vote of General Washington. He became a member of the Cincinnati [an exclusive Revolutionary veteran’s organization], and was a vice-president from 1783 until his death. He resigned the chief justiceship in November, 1789, and was appointed by President Washington the first Judge of the United States District Court for New Jersey. This office he held for less than a year, and he died in 1790, at the age of forty-five. His portrait hangs in the Supreme Court room.



David Brearley (Part 2)


Signer of the U. S. Constitution, early New Jersey Chief Justice and a staunch patriot, David Brearley played a key role in Washington’s military successes in our region. The following essay of Brearley’s life, by Harry M. Ward, was published in Oxford University’s “American National Biography”.


Brearley, David (11 June 1745—16 August 1790), jurist and revolutionary officer, was born at “Spring Grove” farm, near Maidenead (now Lawrenceville), New Jersey, the son of David Brearly and Mary Clark, farmers. The family name was sometimes spelled “Brearley.” His early education is unknown, and he may have briefly attended the College of New Jersey (now Princeton University). He studied law and became an attorney at Allentown, New Jersey, where he made a residence. Brearly participated in the revolutionary movement and became associated with men involved in protest against Great Britain before the war who were later dubbed the “early Whigs” and who would dominate East New Jersey politics. In his law practice, he specialized in estate matters; he was appointed Monmouth County surrogate in 1768 and 1771. About 1767 Brearly married Elizabeth Mullen; they had four children before she died in 1777.


Brearly’s military career began on 28 October 1775 as captain of the Second Regiment of the Monmouth County militia. He rose to lieutenant colonel and then to colonel on 11 August 1776 in Nathaniel Heard’s militia brigade. While he served in the Continental army, he was replaced in the militia by Samuel Forman. On 28 November 1776 Brearly was named lieutenant colonel of the Fourth New Jersey Regiment in General William Maxwell’s New Jersey brigade of Continental troops. During the frequent absences of Colonel Ephraim Martin, Brearly was acting commander of the Fourth Regiment. On 1 January 1777 he was transferred, at the rank of lieutenant colonel, to the First New Jersey Regiment. He served with the New Jersey brigade at the battles of Brandywine, Germantown, and Monmouth and, during most of 1777 to early 1779, in the defense of northeastern New Jersey against British raiding parties. In February 1778 he and Colonel Israel Shreve, on behalf of all the New Jersey Continental troops, petitioned the New Jersey governor and legislature to remedy clothing shortages and depreciation in wages.


Upon the resignation of Robert Morris as chief justice of the New Jersey Supreme Court, Brearly, on 10 June 1779, was elected chief justice by a joint session of the houses of the legislature. At the time of his appointment, he was serving in General John Sullivan’s expedition against the Iroquois Indians in New York. Brearly resigned from the army on 4 August 1779, and he sold his house in Allentown and moved to Trenton. In 1783 he married Elizabeth “Betsy” Higbee; they had three children.


In October 1780 Brearly was nominated for governor. The legislature, however, reelected William Livingston with twenty-eight votes to six for Brearly and two for Philemon Dickinson. Brearly held the vice presidency of the state chapter of the Society of the Cincinnati from 1783 until his death, and on 18 December 1786 he was selected as the first grand master of the Masonic Order in New Jersey. He was one of the first compilers of the Episcopal prayer book in 1785 and the following year represented St. Michael’s Church at the diocesan convention in Philadelphia.


During Brearly’s tenure as chief justice the New Jersey Supreme Court established the principle of judicial review, a notable decision, sometimes called the New Jersey Precedent, that had influence on the federal judicial philosophy. The New Jersey case arose out of a suit over the confiscation of goods carried from behind enemy lines. By a New Jersey law of 1778, a trial before a justice of the peace and a six-man jury determined the outcome. A verdict in a Monmouth County court found for the defendant, Elisha Walton, a militia officer, who had appropriated the property of John Holmes and Solomon Ketcham. On a writ of certiorari, the New Jersey Supreme Court heard the case, Holmes v. Walton. In its decision 7 September 1780, Brearly’s court found that the New Jersey law had contravened the state constitution, which had provided for the use of twelve-man juries. In declaring organic law superior to statute law, the court clearly refused to recognize “necessity” or extraconstitutional war power. The New Jersey legislature gave its approval of the decision.


The Congress of the Confederation appointed Brearly one of the seven commissioners to settle a long-time jurisdictional dispute between Pennsylvania and Connecticut over the Wyoming Valley in Pennsylvania. Meeting at Trenton, New Jersey, from 12 November to 30 December 1782, the commissioners found in favor of Pennsylvania, chiefly because Connecticut could not produce its 1662 charter or a deed of purchase from the American Indians (both document were in England).


Brearly, though mostly silent during the debates, left his mark as a delegate to the federal Constitutional Convention in 1787 as one of the sponsors of the New Jersey Plan (small state plan). He accepted the eventual compromises and fully supported the Constitution in its final form. He initially, however, opposed unequal representation of the states in Congress and favored election of the president by each state having one vote. Brearly argued that proportionate representation from the states in Congress would permit several large states to “carry everything before them.” He declared that the only remedy concerning fair representation was “that a map of the United States be spread out, that all existing boundaries be erased, and that a new partition of the whole be made into 13 equal parts.” Brearly proposed that the House of Representatives be limited to sixty-five members, which was approved.


At the Constitutional Convention Brearly served on the Committee on Apportionment (congressional representation) and chaired the eleven-man Committee of Unfinished Parts, which decided on the presidential term of office, an electoral college, and the mode of executive appointments. He kept an “imperfect” journal of the proceedings of the convention. William Pierce, a delegate from Georgia, characterized Brearly as “a man of good, rather than brilliant parts”; he “is very much in the esteem of the people. As an orator he has little to boast of, but as a Man he has every virtue to recommend him.”


Brearly presided over the New Jersey convention for the ratification of the Constitution, which met in Trenton from 11 December to 18 December 1787. According to a newspaper report, Brearly, “with a perspicuity of argument and persuasive eloquence, which carried conviction with it, bore down all opposition.” The Constitution won unanimous approval.


No reports of decisions of the New Jersey Supreme Court while Brearly presided were published. He was considered a hard money man who thought excessive emission of paper money impaired the obligation of contract. On  7 January 1789 Brearly was named presidential elector by the New Jersey Assembly. In November 1789 he resigned as chief justice for New Jersey to accept a federal district judgeship.


Through inheritance, Brearly was a large landholder in the Lawrenceville vicinity of New Jersey, and he owned public securities, which appreciated in value under the new Constitution. Brearly died at Trenton. A tribute at the time of his death stated that he was “a judicious and conscientious judge, of great capacity and approved integrity.” During his brief life, Brearly, as a soldier, a chief justice of New Jersey, and a framer and defender of the new Constitution, made a distinctive contribution to the establishment of the American Republic.