HISTORICALLY SPEAKING
By:
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 174516 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.
Historically Speaking is a regular column presented by John Fabiano, president of the Allentown-Upper Freehold Historical Society. For information abou the historical society, call (609) 259-9127 or send e-mail to [email protected].