interested in an undivided share of the great Common Lands of that Township laying Waste and unimproved; he was one of the Main Agents in Soliciting the passing of a late Law in that Colony appointing Commissioners for effecting a Partition of the Commons among all the Proprietors. That he is well assured that Law was earnestly desired by the Proprietors in General, and actually petitioned for in the General Assembly. That the Commissioners appointed by it, are in high Reputation as Men of Integrity and Understanding, and that they have executed a Great Part of the Work, not only with great Labour and Pains, but at a vast Expence, and to the Satisfaction, as the Deponent believes of Allmost All concerned-That Cap! Archibald Kennedy, to whom the Deponent understands the Commissioners, for Reasons, which the Deponent supposes they will be ready to give, have not assigned a share of the Commons, is among the discontentedThat the Deponent well knows, that the said Captain Kennedy was very solicitous for the Partition of those Common Lands-That he expressed his Desire to have them divided in that way, and was Aiding in some Measure to the passing of the Act for that PurposeThat the Deponent hath heard and believes that since the Law was passed he laid his Case and Claim before the Commissioners, and was heard by his Council; And that the Deponent was never informed that the said Cap Kennedy, with whom he frequently conversed upon this Subject, had any Objection to the Law itself, or to the Commissioners, or to the Process in the Execution of it, until after he had discovered, that there were some Doubts about the Validity of his Title in Bergen and Whether any Share of the Commons was due to it-And further the Deponent saith not. W BAYARD Sworn the 8th day of Oct 1764 before me JOHN CRUGER N° 6 A SHORT SKETCH of the Reasons why Capt Note, That, if thought necessary, a more perfect State of the Affair will be prepared by the Commissioners at a General Meeting. As the Reasons, upon which the Commiss's rejected Cap Kennedy's Claim to Commons; Arise from the particular circumstances under which, the Lands in Cap Kennedy's possession, Stand-These Reasons would be unintelligible unless accompanied with a State of the Case, weh I can't draw at present, nor would I chuse to do it, without the Privacy of the other Commiss' who can't possibly be got together at this time. The Case is peculiarly intricate. It is most probable, the Title to the Lands, is yet in the West India Com' of Amst" and thence the late Mr Kennedy got into possession of them as Derelict. The Freeholders of Bergen apply'd to the Comiss to have the Lands (in Cap Kennedy's possession) Declared to Be part of the Common Lands of the Township, and as Such allotted (with the other Common Lands) among the Patents.-The Comis considered, That as he was iny Possession, he could not be ousted, but upon the Strength of an Ejector's Title (without any regard to the weakness or want of Title in Him) and this perhaps was one of the least Reasons, why the Commiss chose to leave him as they found him.-As to rejecting his Claim to Commons, The Commis's heard Council on both Sides, stated Queries, and had Answers, They maturely consider'd the whole, and determin'd from Conscience and their best Judgement. They were un connected, disinterested, free of every possible Byas from private Views-If they were wrong Humanum est errare.—I much question M Kennedy's intending to try the Merits of the Commis's Determination-I rather apprehended his Complaint will be mainly founded upon the want of a Probationary Clause in the Partition law. And as condemning that Law, will greatly affect and disturb the Property of that Township-I should think the Ministry will be tender, at least till Parties are heard, and the rather as the Execution of the Law is highly beneficial to the publick as well as the individuals concern'd and was solicited by the Freeholders interested, and the application approved and consented to by Cap Kennedy himself. Commission of Frederick Smyth as Chief-Justice of New Jersey.1 [From Book AAA of Commissions, Secretary of State's Office, Trenton, fol. 394.] GEORGE the Third by the Grace of God of Great Britain France and Ireland King Defender of the Faith &c. To our Trusty and well beloved Frederick Smyth Esquire Greeting We Reposing especial Trust and Confidence in Your Integrity impartiality Prudence 1 Judge Smyth was probably of the Smyth family of Perth Amboy, several of whom-notably John and Lawrence-occupied various positions of prominence in the Province from an early date.-Whitehead's Perth Amboy, passim. The Judge himself occupied from 1766 to 1771 the Proprietaries' “government house" at Perth Amboy, where now stands what was formerly the "Brighton house," at present a home for retired Presbyterian clergymen.-Ib., 260. He was a vestryman of St. Peter's Church in that town in 1774.-1b., 240. At the time of his appointment as Chief-Justice he was only about thirty-two years of age. He perhaps sought the office more for the honor than the profit attaching to it, as, although Governor Franklin secured an increase of £50 in the emoluments of the place, three years later it yielded but £300 in currency, equivalent to but £120 sterling. (See post, under dates of November 12, 1764, and April 12, 1767.) The young Chief-Justice does not appear to have made much impression in the administration of the duties of his high and and Ability Have Assigned Constituted and appointed And we do by these presents Assign Constitute and appoint you the said Frederick Smyth to be our Chief Justice of and in Our Province of Nova Ceesarea or New Jersey in America; Giving and by these Presents Granting unto you the said Frederick Smyth full Power and Authority to hold the Supreme Courts of Judicature at such places and Times as the same may or ought to be held within our said Province, and to hear try and determine all Pleas whatsoever Civil Criminal and mixed according to the Laws Statutes and Legal Usages of Our said Province that are not Repugnant to the Laws and Statutes or that part of our Kingdom of Great Britain Called England, and according to such Laws and Statutes of our said King responsible office, and evilently was anxious to be on good terms with the attorneys who practised in his court. While firm and consistent in his loyalty to the British crown, his course during the exciting controversy over the Stamp Act won for him the good will of the Americans. He frankly conferred with the members of the bar as to his proper course in the premises, intimating his personal disapproval of the Act, and readily acquiesced in their views, whereby the Stamp Act was rendered nugatory in New Jersey. (See post, under date September 19-20, 1765.) Nevertheless, the Chief-Justice naturally deprecated any resort to violent measures, and when the zealous patriots of Cumberland county, on the night of November 22, 1774, seized and burned a cargo of dutiable tea, at Greenwich, he "gave a large charge to the Grand Jury concerning the times, and the burning of the tea, but the jury came in without doing anything," although sent out a second time. History of the First Settlement of Salem, in West Jersey, by Robert G. Johnson, Philadelphia, 1839, 123-5; Hist. Cumberland County, by L. Q. C. Elmer, Bridgeton, 1869, 14-16. In delivering a charge to the Essex county Grand Jury, in 1774, he spoke freely of the troubled state of the times, and cautioned the people to beware of the "real tyranny" at their doors, as more to be dreaded than the "imaginary tyranny three thousand miles distant," which gave the grand jurors an excellent opportunity to express their views of the situation, which they did in an able and most admirable "address," concluding with the hope that "no bias of self-interest; no fawning servility to those in power; no hopes of future preferment, will induce any man to damp their laudable and patriotick ardour, nor lend his helping hand to the unnatural and diabolical work of riveting those chains which are forging for us by that same actual tyranny, at the distance of three thousand miles."-American Archives, Fourth Series, I., 967; Minutes of Council of Safety, etc., for 1775-6, 31. It is fair to presume that after this severe rebuke the Chief-Justice confined the expression of his views on the bench strictly to the questions pertaining to his judicial position. In 1768 he was with Governor Franklin at Fort Stanwix, when the western frontier was adjusted with the Indians.-N. Y. Col. Docs., VIII., 112, 137. In 1773 he sat with the commissioners at Newport, R. I., to investigate the burning of the British schooner Gaspee, by a party of Rhode Island Whigs.-Hist. American Revolution, by William Gordon, dom as now do or hereafter shall be made to extend to our Plantations in America, and Executions of all Judgments given in our said Court to award, and from time to time to make such Rules and orders in our said Supreme Court in our said Province for the benefit of the Inhabitants of our said Province as you shall judge to be Convenient and usefull for the more easy speedy and impartial administration of Justice and the preventing unreasonable and unnecessary delays and as near as may be agreeable to the Rules and orders made in the like Cases in our Courts of Kings Bench, Common Pleas, and Exchequer in our Kingdom of Great Britain. To have, hold execute and Enjoy the said Office unto you the said Frederick Smyth for and during our Pleasure and your Residence within our said Province Together with all and singular the Rights Profits priviledges and Emoluments unto the said place belonging in as full and Ample Manner as any other Persons hath formerly held or of Right ought to have held and Enjoyed the same In Testimony whereof we have Caused these our Letters to be made Patent and the Seal of our said Province to be hereunto affixed. Witness our Trusty and well beloved WILLIAM FRANKLIN Esquire our Captain General and Governor in Chief in and over our said province of New Jersey and Territories thereon depending in America Chancellor & Vice Admiral in the same &c. at our City of Burlington in our Prov D. D., New York, 1789, I., 218-19; Historical Notes, etc., by William Griffith, Burlington, 1836, 261. Having been appointed a member of the Council at the same time that he received his commission of Chief-Justice, in 1764, he attended the sessions of that body until November, 1775.-Minutes. "His reputation as a judge was highly respectable."-Provincial Courts in New Jersey, by Richard S. Field, New York, 1849, 181. "In 1776, when the Whigs assumed the direction of the gov ernment, he retired to Philadelphia. In 1779, he was informed, by direction of Lord George Germain, that it was impossible for the Ministry to compensate Loyalists to the extent of their losses, but yet, that an allowance of £400 would be continued to him. He died at Philadelphia, in 1815, aged eighty-three."-Sabine's Loyalists, II., 319-20.-[W. N.] |