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Published online by Cambridge University Press: 28 October 2011
At 10:00 A.M. on May 21, 1845, ‘the tall, straight figure and pale, grave face of the slave's friend, Alvan Stewart’, turned toward the justices of the New Jersey Supreme Court as he commenced his opening argument in the companion cases, State v. Post and State v. Van Beuren. In the ensuing hours, Stewart argued for the immediate abolition of slavery and black apprenticeship in New Jersey. Although Stewart relied upon many authorities, the justices and the attorneys for the defendants believed that his most promising argument was based upon the state constitution of 1844, the first of the state's fundamental laws to declare that ‘all men are by nature free and independent’. On the following day, the defense counsel—A.O. Zabriskie, a Hackensack attorney, and Joseph P. Bradley, the future U.S. Supreme Court Justice—spoke with ‘much energy and ingenuity’ until five o'clock. The reply of the ‘Abolition Ajax’ lasted until 10:30 and closed with an impassioned appeal to the justices. ‘Such was the impressiveness with which the closing appeal of the advocate for freedom was delivered’, a newspaperman reported, that none of the large audience wished to ‘break the spell his eloquence had cast upon the assembly’. At length, the bench arose, and Chief Justice Joseph Hornblower adjourned the court.
1. Marsh, Luther Rawson, ed., Writings and Speeches of Alvan Stewart on Slavery (New York, 1860) 26Google Scholar [hereinafter: March, ed., Writings of Alvan Stewart]; Stewart, Alvan, A Legal Argument Before the Supreme Court of the State of New Jersey at this May Term, 1845, at Trenton, for the Deliverance of Four Thousand Persons from Bondage (New York, 1845) 45, 52Google Scholar [hereinafter: Stewart, Legal Argument]; Newark Daily Advertiser, May 22, 1845; New York Evening Express, May 24, 1845.
2. For the outlines of proslavery and antislavery sentiment in antebellum New Jersey, see Appleby, Theodore, ‘Opinions on Slavery in Burlington County, as Reflected in the New Jersey Mirror, and Burlington County Advertiser, 1830-1861’ (M.A. thesis, Rutgers University, 1940Google Scholar) [hereinafter: Appleby, ‘Opinions on Slavery’]; Cudd, John, ‘The Unity of Reform: John Grimes and the New Jersey Freeman’, New Jersey History xcvii (1979) 197–212Google Scholar [hereinafter: Cudd, ‘Unity of Reform’]; Davis, Philip Curtis, ‘The Persistence of Partisan Alignment: Issues, Leaders, and Votes in New Jersey, 1840-1860’ (Ph.D. dissertation, Washington University, 1978) 157–203Google Scholar [hereinafter: Davis, ‘Persistence of Partisan Alignment’]; Hatch, Carl E., ‘Editor David Naar of Trenton: Profile of the Anti-Negro Mind’, New Jersey History lxxxvi (1968) 70–87Google Scholar; Hillstrom, David Armour, ‘New Jersey and the Abolition Movement, 1830-1850’ (Senior thesis, Princeton University, 1965Google Scholar) [hereinafter: Hillstrom, ‘New Jersey and the Abolition Movement’]; Pingeon, Francis D., ‘Dissenting Attitudes toward the Negro in New Jersey — 1837’, New Jersey History lxxxix (1971) 197–220Google Scholar; Price, Clement Alexander, ed., Freedom Not Far Distant: A Documentary History of Afro-Americans in New Jersey (Newark, 1980Google Scholar); Seaton, Douglas P., ‘Colonizers and Reluctant Colonists: The New Jersey Colonization Society and the Black Community, 1815-1848’, New Jersey History xcvi (1978) 7–22Google Scholar; Zilversmit, Arthur, ‘Liberty and Property: New Jersey and the Abolition of Slavery’, New Jersey History lxxviii (1970) 215–26Google Scholar [hereinafter: Zilversmit, ‘Liberty and Property’].
3. Blackstone, William, Commentaries on the Laws of England, A Facsimile of the First Edition 1765-1769, 4 vols. (Chicago, 1979) i, 44Google Scholar; see Cover, Robert M., Justice Accused: Antislavery and the Judicial Process (New Haven, 1975) 25–26Google Scholar [hereinafter: Cover, Justice Accused].
4. Horwitz, Morton J., The Transformation of American Law, 1780-1860 (Cambridge, Mass., 1977) 1–30Google Scholar; Gordon, Robert W., ‘Legal Thought and Legal Practice in the Age of American Enterprise, 1870-1920’, in Geison, Gerald L., ed., Professions and Professional Ideologies in America (Chapel Hill, 1983) 82–97Google Scholar [hereinafter: Gordon, ‘Legal Thought and Legal Practice’]; Wiecek, William M., ‘Latimer: Lawyers, Abolitionists and the Problem of Unjust Laws’, in Perry, Lewis and Fellman, Michael, eds., Antislavery Reconsidered: New Perspectives on the Abolitionists (Baton Rouge, 1979) 219–25Google Scholar.
5. Newmyer, R. Kent, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill, 1985) 382–92Google Scholar; Presser, Stephen B. and Hurley, Becky Bair, ‘Saving God's Republic: The Jurisprudence of Samuel Chase’, University of Illinois Law Review 771–822 (1984Google Scholar); Presser, Stephen B., ‘A Tale of Two Judges; Richard Peters, Samuel Chase, and the Broken Promise of Federalist Jurisprudence’, 73 Northwestern University Law Review 26–111 (1978)Google Scholar.
6. See Gordon, ‘Legal Thought and Legal Practice’, supra note 4 at 82-97; Bloomfield, Maxwell, American Lawyers in a Changing Society, 1776-1876 (Cambridge, Mass., 1976) 136–90CrossRefGoogle Scholar.
7. ‘Act of Feb. 15, 1804’, 1804 N.J. Laws 251. For the history of this legislation, see Zilversmit, Arthur, The First Emancipation: The Abolition of Slavery in the North (Chicago, 1967) 141-46, 175-76, 184-89, 192–99Google Scholar [hereinafter: Zilversmit, First Emancipation] and Zilversmit, ‘Liberty and Property’, supra note 2.
8. Return of the Whole Number of Persons Within the Several Districts of the United States (Washington, 1801) 34Google Scholar; Compendium of the Enumeration of the Inhabitants and Statistics of the United States (Washington, 1841Google Scholar).
9. Wacker, Peter O., ‘Patterns and Problems in the Historical Geography of the Afro-American Population of New Jersey, 1726-1860’, in Ehrenberg, Ralph E., ed., Pattern and Process: Research in Historical Geography (Washington, 1967) 25–72Google Scholar; Frakt, Steven B., ‘Patterns of Slave-Holding in Somerset County, N.J.’ (Seminar paper, Rutgers University, 1967Google Scholar); Smith, Hubert G., ‘Slavery and Attitudes on Slavery, Hunterdon County, N.J.’, Proceedings of the New Jersey Historical Society, n.s. lviii (1940) 151-69, 240–53Google Scholar. For the work patterns of New Jersey slaves, see Kuser, Robert Christian, ‘Negro Slavery in New Jersey, 1702-1804’ (Senior thesis, Princeton University, 1964) 47–65Google Scholar.
10. Zilversmit, ‘Liberty and Property’, supra note 2 at 217, 221.
11. New Jersey State Anti-Slavery Society Minutes, August 27, 1839, New Jersey Historical Society [hereinafter: NJSASS Minutes].
12. Hillstrom, ‘New Jersey and the Abolition Movement’, supra note 2 at 42, 69-70, 72.
13. New Brunswick Weekly Freedonian, quoted in Hillstrom, ‘New Jersey and the Abolition Movement’, supra note 2 at 43-44; see also Theodore Appleby, ‘Opinions on Slavery’, supra note 2 at 29-30.
14. New Jersey Freeman, June 15, 1844. On the abolitionists' difficulty in obtaining halls, see New Jersey Freeman, December 31, 1844, January 31, 1845. On Grimes, see Cudd, ‘Unity of Reform’, supra note 2. To understand the national context of anti-abolitionist sentiment in New Jersey, see Richards, Leonard L., ‘Gentlemen of Property and Standing’: Anti-Abolition Mobs in Jacksonian America (New York, 1970Google Scholar).
15. New Jersey Freeman, 11, February 28, 1845; NJSASS Minutes, supra note 11 at January 17, 1845.
16. The classic account of the division in the national organization is Kraditor, Aileen S., Means and Ends in American Abolitionism: Garrison and His Critics on Strategy and Tactics, 1834-1850 (New York, 1970Google Scholar). In brief, the conflict pitted the followers of William Lloyd Garrison against abolitionists from New York, who left the American Anti-Slavery Society to form the American and Foreign Anti-Slavery Society. The Garrisonians rejected on moral grounds any political or legal tactic that would implicitly concede the legitimacy of the U.S. Constitution, which they considered a proslavery ‘covenant with death, and agreement with hell’. Garrison believed that the broadest aims of abolition—political and civil equality for blacks—could be achieved only by a transformation in the sentiments of the populace. Americans had to be converted to the belief that slavery and race prejudice was a sin. As Kraditor writes, this ‘was far too radical—far too subversive of the fundamental arrangements of American society’—to be achieved by governmental mandate.
Political abolitionists, in contrast, thought that the electoral system and the Constitution could be used to end slavery throughout the country. In electoral campaigns they saw a unique opportunity to influence public opinion on a broad scale. Abolitionism could embrace political tactics without abandoning its broadest aims, they believed, because slavery and race prejudice were not yet inextricable components of American society. Thus, they differed from the Garrisonians in their vision of abolitionism as a means of strengthening and preserving an American society that was fundamentally good. See Kraditor, Means and Ends, ibid, at 8-9, 165, 200.
17. NJSASS Minutes, supra note 11 at July 20, 1840, August 17, 1840; New Jersey Freeman, June 15, 1844. For the New Jersey vote, see Presidential Elections Since 1789 (Washington, 1975) 67Google Scholar. In 1844, Birney received 131 votes, or 0.2% of the New Jersey total.
For the history of the Liberty Party and its close ties to the New York abolitionists, see Hendricks, John R., ‘The Liberty Party in New York State, 1838-1848’ (Ph.D. dissertation, Fordham University, 1959Google Scholar); Henderson, Alice Hatcher, ‘The History of the New York State Anti-Slavery Society’ (Ph.D. dissertation, University of Michigan, 1963Google Scholar).
18. New Jersey Freeman, June 15, 1844. During this period, Alvan Stewart and other prominent political abolitionists participated in the meetings of the state society and the Essex County Auxiliary. NJSASS Minutes, supra note 11 at August 23, 1843 (Lewis Tappan), January 22, 1845 (Alvan Stewart); Essex County Anti-Slavery Society Minute Book, January 10, 1840 (Henry B. Stanton), July 5, 1841 (Lewis Tappan) New Jersey State Historical Society. In addition, when a member proposed that the state society hold an ‘Antislavery Camp Meeting’, he hoped to ‘secure the attendance of a dozen or so of our strongest men: Alvan Stewart, Gerrit Smith, [Joshua] Leavitt, [Henry B.] Stanton, [Rev. John] Pierpont, [Erastus D.] Culver, [Abel] Brown, [Henry H.] Garnet’—all political abolitionists from New York. New Jersey Freeman, October 1, 1844; see Sorin, Gerald, The New York Abolitionists: A Case Study of Political Radicalism (Westport, 1971) 135–36Google Scholar.
19. Bebout, John E., ‘Introduction’, Proceedings of the New Jersey State Constitutional Convention of 1844 (Trenton, 1942) lxvGoogle Scholar [hereinafter: Proceedings of the Constitutional Convention of 1844].
20. Ibid, at 614.
21. Blacks (and women) had occasionally voted in New Jersey under the 1776 constitution which enfranchised ‘all Inhabitants’ meeting certain property and residency requirements. Suffrage was limited to adult white males by the Act of June 1, 1820, 1820 N.J. Laws 146. See Wright, Marion Thompson, ‘Negro Suffrage in New Jersey, 1776-1875’, Journal of Negro History xxxiii (1948) 168–224CrossRefGoogle Scholar.
22. NJSASS Minutes, supra note 11 at January 31, 1844; New Jersey Freeman, July 25, 1844.
23. New Jersey Freeman, August 15, 1844. The members of the five-person committee, which included Grimes, are given in Ibid, at September 15, 1844.
24. Ibid., at September 15, 1844.
25. Ibid., at September 15, 1844, January 31, 1845.
26. Ibid., at April 30, 1845.
27. I have found no reference to Palmer in the minutes of the NJSASS, the minute book of the Essex County auxiliary, the standard collective biographies of New Jersey lawyers, and the local histories for Essex County and Jersey City.
28. New Jersey Freeman, July 1, 1845. I have reconstructed the early stages of the litigation from the surviving records for the cases in the New Jersey State Archives: a printed ‘State of the Case’ prepared for the appeal from the Supreme Court to the Court of Errors and Appeals, the Minutes of the New Jersey Supreme Court, lxxxvi (Feb. 1845-Nov. 1846) 32-33 [hereinafter: Minutes, N.J. Sup. Ct.], and the Docket Book of the New Jersey Supreme Court, i (1842-1850) 203 [hereinafter: Docket Book, N.J. Sup. Ct.].
29. NJSASS Minutes, supra note 11 at May 13, 1845. Grimes reported that the money was pledged ‘with a promptness that did honor to the abolitionists present’. New Jersey Freeman, June 1, 1845.
30. New Jersey Freeman, June 15, 1844.
31. Ibid, at September 15, 1844; NJSASS Minutes, supra note 11 at January 31, 1844, August 23, 1843; New Jersey Freeman, June 15, 1844.
32. Stewart's address, delivered before the New-York State Anti-Slavery Society, was originally published in the Utica (N.Y.) Friend of Man, October 18, 1837, and is reprinted in tenBroek, Jacobus, Equal Under Law (New York, 1965) 281–95Google Scholar.
33. New Jersey Freeman, June 1, 1845.
34. G.C. Saxton to Alvan Stewart, Jr., October 23, 1849, Alvan Stewart Papers, NewYork Historical Society [hereinafter: ‘Saxton to Stewart’].
35. Account of William Allen v. Seward and Northway, Alvin Stewart Papers, Folder NM 261.57, New York State Historical Association [hereinafter: ‘Allen v. Seward’]; History of Otsego County, New York (Philadelphia, 1878) 30Google Scholar.
36. Allen v. Seward, supra note 35.
37. Quoted in Marshall, ed., Writings of Alvan Stewart, supra note 1 at 36.
38. Saxton to Stewart, supra note 34.
39. William Goodell, quoted in Marsh, ed., Writings of Alvan Stewart, supra note 1 at 33. One practitioner frankly stated, ‘Stewart was not a profound lawyer. He had read considerable law; but it was a sort of desultory reading’. Beardsley, Levi, Reminiscences; Personal and Other Incidents: Early Settlement of Otsego County (New York, 1852) 168Google Scholar.
For a case where judges resisted a characteristic argument by Stewart, see Stewart v. Hawley, 21 Wendell 552 (N.Y. Sup. Ct. 1839), discussed in Ernst, Daniel R., ‘Church-State Issues and the Law, 1607-1870’, in The Church-State Issue in American History: A Bibliographical Guide (Westport, Conn.Google Scholar, forthcoming).
40. Address before the Sabbath School Society, Utica, New York, July 4, 1834, Alvan Stewart Papers, New-York Historical Society. Similarly, Stewart told the American Bible Society in May 1834 that Christianity was ‘that power which stands behind the constitution and laws and sets them all in motion’. ‘The Bible the Only Preservative of a Republican Form of Government’, Alvan Stewart Papers, New-York Historical Society.
41. Wiecek, , The Sources of Antislavery Constitutionalism in America (Ithaca, 1977) 249–74Google Scholar [hereinafter: Wiecek, Antislavery Constitutionalism].
42. On Spooner, see ibid, at 257-58; Perry, Lewis, Radical Abolitionism: Anarchy and the Government of God in Antislavery Thought (Ithaca, 1973) 194–208Google Scholar.
43. Marsh, ed., Writings of Alvan Stewart, supra note 1 at 355-58. In assessing Stewart's ‘Constitutional Argument on the Subject of Slavery’, supra note 32, Robert Cover aptly describes Stewart's reasoning as being ‘founded wholly on constitutional text and requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation’ of the due process clause. Cover, Justice Accused, supra note 3 at 157.
44. The argument was postponed to May 21 when ‘professional duties’ prevented Zabriskie from appearing on the 20th. On the morning of the 21st, the court denied Bradley's motion for a postponement to the following term, which he had made in order to give the ‘grave and important principles’ of the case sufficient study. New York Evening Express, May 21, 1845; Trenton State Gazette, May 21, 1845.
45. Trenton State Gazette, May 23, 1845; Stewart, Legal Argument, supra note 1 at 13. For a thorough summary of Stewart's argument, see Finkelman, Paul, Slavery in the Courtroom: An Annotated Bibliography of American Cases (Washington, D.C., 1985) 152–55Google Scholar.
46. Somerset v. Stewart, Lofft 1, 19, 98 Eng. Rep. 499, 540 (K.B. 1772). On the American reception of Somerset, see Wiecek, Antislavery Constitutionalism, supra note 41 at 20-39; Cover, Justice Accused, supra note 3 at 16-18; Finkelman, Paul, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill, 1981) 70–125Google Scholar [hereinafter: Finkelman, Imperfect Union]; Higginbotham, A. Leon Jr., In the Matter of Color: Race and the American Legal Process: The Colonial Period (New York, 1978) 313–68Google Scholar.
47. Commonwealth v. Aves, 35 Mass. (18 Pickering) 193 (1836). On Aves, see Levy, Leonard W., The Law of the Commonwealth and Chief Justice Shaw (Cambridge, Mass., 1957) 59–71Google Scholar; Finkelman, Imperfect Union, supra note 46, 103-14.
48. Stewart, Legal Argument, supra note 1 at 23. Although Stewart asserted that slavery violated the Ten Commandments, he did not argue that divine law was an independent basis for deciding Post. Ibid, at 34. Divine law was only significant to his argument insofar as it defined natural law.
49. Ibid, at 17-19, 27.
50. Ibid, at 23-24.
51. Ibid, at 36.
52. Ibid, at 35. On this earlier argument, see note 32 supra.
53. Ibid, at 37-38.
54. Ibid, at 38-40.
55. Ibid, at 20.
57. Ibid, at 37. Cf. Powell, H. Jefferson, ‘The Original Understanding of Original Intent’, 98 Harvard Law Review 885–948 (1985Google Scholar).
58. Thus, Robert Cover erred in minimizing the public policy implications of the justices' decision in Post. Cover, Justice Accused, supra note 2 at 59. True, the case would not overturn the dominant labor system of the state, but emancipation under the 1804 act had been a very expensive process for New Jersey. At one point the cost of maintaining abandoned children accounted for half of all state expenditures. See Davis, ‘Persistence of Partisan Alignment’, supra note 2 at 165-66; Zilversmit, First Emancipation, supra note 7 at 195-99; Cooley, Henry Scofield, A Study of Slavery in New Jersey (Baltimore, 1896) 27Google Scholar. Even after the legislature prohibited the use of state funds for this purpose, the cost of emancipation remained a public issue as tight-fisted townships sued each other to determine responsibility for the support of destitute former slaves. South Brunswick v. East Brunswick, 8 N.J.L. (3 Halsted) 64 (1824); Overseers of the Poor of Perth Amboy v. Overseers of the Poor of Piscataway, 19 N.J.L. (4 Harrison) 173 (1842); Overseers of Morris v. Overseers of Warren, 26 N.J.L. (2 Dutcher) 312 (1857).
59. Keasbey, Edward Quinton, The Courts and Lawyers of New Jersey, 1661-1912 (New York, 1912) ii, 742Google Scholar [hereinafter: Keasbey, Courts and Lawyers of New Jersey].
60. Obituary Addresses and Proceedings of the Bar on the Occasion of the Death of Abraham O. Zabriskie (Jersey City, 1874) 5, 67Google Scholar.
61. John Whitehead, The Judicial and Civil History of New Jersey (n.p., 1897) ii, 387-88 [hereinafter: Whitehead, Judicial and Civil History].
62. Weart, Jacob, ‘Chancellor Abraham O. Zabriskie’, New Jersey Law Journal xx (1897) 328Google Scholar.
63. New York Evening Express, May 23, 1845.
64. The sketch is discussed in Whiteside, Ruth, ‘Justice Joseph Bradley and the Reconstruction Amendments’ (Ph.D. dissertation, Rice University, 1981), 9–11Google Scholar [hereinafter: Whiteside, ‘Bradley and the Reconstruction Amendments’], which contains an excellent account of Bradley's early years and New Jersey law practice. See also Charles Fairman's many articles on Bradley, , including ‘Mr. Justice Bradley’, in Dunham, Allison and Kurland, Philip B., eds. Mr. Justice (Chicago, 1956) 69–95Google Scholar; ‘What Makes a Great Justice? Mr. Justice Bradley and the Supreme Court, 1870-1892’, 30 Boston University Law Review 49–102 (1950Google Scholar); and ‘The Education of a Justice: Justice Bradley and Some of His Colleagues’, 1 Stanford Law Review 217–55 (1949)Google Scholar.
65. On Bradley's railroad business, which one (undoubtedly biased) observer believed made him ‘heart, body and soul Camden and Amboy’, see Whiteside, ‘Bradley and the Reconstruction Amendments’, supra note 64 at 31-34, 57-61, 125.
66. Bradley, Charles, ed., Miscellaneous Writings of the Late Hon. Joseph P. Bradley (Newark, 1901) 299Google Scholar.
67. Ibid, at 300, 238. See also Bradley's, article on ‘Law’ in Supplement to Encyclopedia Britannica, 4 vols. (New York, 1886) iii, 568–73Google Scholar.
68. Quoted by Parker, Cortland, ‘Justice Joseph P. Bradley’, 28 American Law Review 508 (1894Google Scholar) [hereinafter: Parker, ‘Bradley’].
69. This was the judgment of his close friend and fellow lawyer, Cortland Parker. See ibid, at 489. Bradley was rated ‘near-great’ in a survey of law school deans and professors of law, history, and political science conducted in 1970. Blaustein, Albert P. and Mersky, Roy M., The First One Hundred Justices: Statistical Studies on the Supreme Court of the United States (Hamden, Conn., 1978) 32–51Google Scholar. See also Friedman, Leon, ‘Joseph P. Bradley’, in The Justices of the United States Supreme Court, 1789-1969: Their Lives and Major Decisions, 5 vols. (New York, 1969) ii, 1181–200Google Scholar.
70. Parker, ‘Bradley’, supra note 68 at 491; Worth, George C., ‘Hon. Joseph P. Bradley: The Passing of a Great Lawgiver’, New Jersey Law Journal xx (1897) 299Google Scholar.
71. See note 48 supra.
72. Newark Daily Advertiser, May 22, 1845.
73. New York Evening Express, May 23, 1845. During his unsuccessful congressional campaign in 1862, Bradley similarly professed to believing slavery a great evil, but he denied that he was an abolitionist. He preferred gradual emancipation and colonization to the immediate abolition of slavery in the South, which, he argued, would be in the interest of neither slave nor master. See Whiteside, ‘Bradley and the Reconstruction Amendments’, supra note 64 at 90-94.
74. According to the newspaper account of the argument, neither Bradley nor Zabriskie wasted any breath on Stewart's interpretation of the U.S. Constitution.
75. New York Evening Express, May 23, 1845.
76. Ibid, at May 24, 1845; Stewart, Legal Argument, supra note 1 at 45.
77. New York Evening Express, May 24, 1845.
78. Stewart, Legal Argument, supra note 1 at 46-47; New York Evening Express, May 24, 1845.
79. One member of the five-judge court, Ira Condict Whitehead (1789-1867), abstained. He had missed the argument of the case, having ‘gone to hold Morris [County] Circuit’. Hornblower, Joseph C., Notes of Arguments Made in the Supreme Court of New Jersey from November Term 1833 to October 1846, 2 vols., ii, 16Google Scholar, New Jersey State Archives.
79. In the interim, the NJSASS had busied itself with plans to publish and circulate Stewart's argument. At a meeting of the society in Newark on June 26, ‘the few friends’ who were in attendance took 1,700 copies to disseminate. The society thanked Palmer and Stewart for their efforts, and noted that Stewart had asked the society to reimburse him only for his expenses in arguing the case and printing the argument. New Jersey Freeman, July 1, 1845.
80. The reporter noted that Carpenter ‘concurred in the result of the opinion delivered by Justice Nevius, and in the general tenor of the reasoning on which it is founded’. State v. Post, 19 N.J.L. (Spencer) 368, 386 (N.J. Sup. Ct. 1845). Carpenter was the son of the owner of a glassworks; ‘as a judge of the Supreme Court he was held in high esteem by his associates and by the bar of the State for his ability, learning, and uniform good judgment’. Whitehead, Judicial and Civil History, supra note 61 at 15-16.
81. Whitehead, John, ‘The Supreme Court of New Jersey’, Green Bag iii (1891), 453Google Scholar [hereinafter: Whitehead, ‘Supreme Court of New Jersey’]; Elmer, Lucius Q.C., The Constitution and Government of the Province and State of New Jersey, with … Reminiscences of the Bench and Bar (Newark, 1872) 347–49Google Scholar [hereinafter: Elmer, Reminiscences].
82. State v. Post, 19 N.J.L. (Spencer) 368, 369, 370, 372 (N.J. Sup. Ct. 1845) (emphasis supplied).
84. Ibid, at 374-75. Nevius's opinion contains only a passing reference to the Federal Constitution. Without mentioning Stewart's arguments or the defense counsels' failure to respond to them, Nevius noted that the express language of the Constitution recognized the relation of master and slave, that no court had ever held slavery unconstitutional, and that, on the contrary, state and federal courts had often held that the Constitution did not affect the institution. Ibid, at 375-76.
85. Randolph's opinions ‘were sensible, well reasoned out, and the result of an honest and severely industrious search for every principle involved in the cause’. Whitehead, ‘Supreme Court of New Jersey’, supra note 81 at 456.
86. State v. Post, 19 N.J.L. (Spencer) 368, 380, 384, 385 (N.J. Sup. Ct. 1845).
87. New York Evening Express, July 19, 1845; Trenton State Gazette, July 18, 1845; Newark Daily Advertiser, July 19, 1845.
88. A draft of a letter among Hornblower's personal papers alludes to his opinion in Post and continues:
I should not like a public annunciation of it, without first reviewing it. It is now more than ten years ago since I wrote it. After the occasion of delivering it passed away, I put it somewhere among my files of finished business papers. If I can find leisure to look it up and think upon reperusal of it it will be of any service to the cause, I may send you a copy, or at least, extracts from it.
Joseph C. Hornblower to Crosby and Nichols, March 24, 1857, Joseph C. Hornblower Papers, Box 10, New Jersey Historical Society [hereinafter cited by box number as Hornblower Papers].
89. For Hornblower's service to the Republican Party and the legends about his age, see Nelson, William, Joseph Coerten Hornblower (Cambridge, Mass., 1894) 23–24Google Scholar [hereinafter: Nelson, Hornblower]; Field, Richard S., ‘Address on the Life and Character of the Hon. Joseph C. Hornblower’, Proceedings of the New Jersey Historical Society x (1865-1866) 28Google Scholar [hereinafter: Field, ‘Hornblower’]. For the Republican version of the Founding Fathers' expectation for slavery, see Foner, Eric, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War (New York, 1970) 75–76Google Scholar.
90. The letter, dated February 21, 1856, survives as a clipping from an unidentified newspaper in the Hornblower Papers, Box 2, supra note 88.
91. Hornblower to Crosby and Nichols, March 24, 1857, Hornblower Papers, supra note 88. In addition, upon taking his chair as president of the electoral college in 1860, Hornblower ‘made an affecting and interesting speech—one of the last he ever delivered—in which he referred to his long life, declared himself to be an American Republican, and avowed his conviction that the principles for which he was contending were those of Washington and the early Fathers of the Republic’. Field, ‘Hornblower’, supra note 89 at 41.
92. Elmer, Reminiscences, supra note 81 at 362, 363.
93. Field, ‘Hornblower’, supra note 89 at 29-30; Nelson, Hornblower, supra note 89 at 12.
94. Nelson, Hornblower, supra note 89 at 21; Whitehead, ‘The Supreme Court of New Jersey’, supra note 81 at 423.
95. Field, ‘Hornblower’, supra note 89 at 40; see also Elmer, Reminiscences, supra note 81 at 371.
96. Hornblower to Rev. A.D. Smith (n.d.), Hornblower Papers, Box 2, supra note 88. Internal evidence suggests that Hornblower wrote the letter sometime in 1851 and that the sermon which prompted the letter was Smith, Asa Dodge, Obedience to Human Law: A Discourse Delivered on the Day of Public Thanksgiving, December 12, 1850 (New York, 1851Google Scholar).
97. Hornblower to John C. Ten Eyck (n.d.), Hornblower Papers, Box 10, supra note 88. Salmon P. Chase relied upon a newspaper report of Sheriff of Burlington in arguing the Slave Matilda case in 1837. Salmon P. Chase to Hornblower, April 3 1851, Hornblower Papers, Box 2, supra note 88; Speech of Salmon P. Chase, in the Case of the Colored Woman, Matilda (Cincinnati, 1837) 18Google Scholar.
98. See, for example, New York Evening Post, August 1, 1851; Hurd, John Codman, The Law of Freedom and Bondage in the United States, 2 vols., (New York, 1858-1867) ii, 64–66Google Scholar.
99. Newark Daily Advertiser, April 10, 1851.
100. Elmer, Reminiscences, supra note 81 at 370, claimed that the governor declined to renominate Hornblower ‘on the ground that in the convention of which they were fellow members, he had shown too much disposition to change his opinions’.
101. Nelson, Hornblower, supra note 89 at 16-17; Field, ‘Hornblower’, supra note 89 at 38. I have found no basis for the assertion that Hornblower unsuccessfully attempted ‘to obtain the insertion of a clause putting an end to slavery in the State’, which appears in The Biographical Encyclopedia of New Jersey of the Nineteenth Century (Philadelphia, 1877) 77Google Scholar; see also Wright, Marion T., ‘New Jersey Laws and the Negro’, Journal of Negro History xxviii (1943) 184Google Scholar; and Whiteside, ‘Bradley and the Reconstruction Amendments’, supra note 64 at 47.
102. Proceedings of the Constitutional Convention of 1844, supra note 19 at 139.
103. Ibid, at 51.
104. Ibid, at 139-40. Weeks later, a committee of revision reported the article in its final form, with the words ‘by nature’ substituted for ‘born equally’. The full convention adopted this version without reported debate. Although the committee had been empowered ‘to alter or amend the phraseology, without altering the meaning of the several’ sections, Randolph maintained in Post that the change revealed the convention's intent to state rights which men possess ‘by or in a state of nature’ but which might be altered once human governments were established. Ibid, at 422, 583, 589; State v. Post, 19 N.J.L. (Spencer) 368, 380 (N.J. Sup. Ct. 1845).
105. The convention deleted the word ‘natural’ because, as a speaker noted, the convention had been ‘treating of civil as well as natural rights’. Proceedings of the Constitutional Convention of 1844, supra note 19 at 169-71.
106. Hornblower to Crosby and Nichols, March 24, 1857, Hornblower Papers, Box 10, supra note 88.
107. New Jersey Freeman, August 7, 1845. The Court of Errors and Appeals consisted of the chancellor, the supreme court justices, and several ‘special’ judges, who need not have been lawyers. Its jurisdiction was confined to the review of questions of law in cases initiating in the state's common-law and equity courts. See Keasbey, Courts and Lawyers of New Jersey, supra note 59 at i, 420-27.
108. New Jersey Freeman, February 11, 1846.
109. Trenton State Gazette, January 30, 1846; ‘An Act to Abolish Slavery’, (N.J. Stat. Rev.) 382 (1847Google Scholar).
110. On the progress of the appeal, see Docket Book, N.J. Sup. Ct., supra note 28 at i, 203; Minutes, N.J. Sup. Ct., supra note 28 at lxxxvi, 83; Joseph Bradley Papers, Docket Book, 85, New Jersey Historical Society; New Jersey Freeman, May 14, 1846, January 7, 1847, February 16, 1847, May 15, 1847, January 26, 1848, February 5, 1848.
111. State v. Post, 21 N.J.L. (1 Zabriskie) 699 (N.J. Ct. Err. & App. 1848). On February 19, the affirmance of State v. Post by the Court of Errors was noted in the supreme court's docket. No similar note appears in the entry for State v. Van Beuren. The case may have been dismissed as moot, for if Mary Tiebout was nineteen in March 1845, she must have been over twenty-one (and therefore free under the 1804 act) in February 1848. Docket Book, N.J. Sup. Ct., supra note 28 at i, 203.
112. Wiecek, Antislavery Constitutionalism, supra note 41 at 274-75.
