and that the inestimable right of trial by jury should remain confirmed without repeal; and finally, every person who should be elected to the Council or Assembly was required to take oath or affirmation that he would consent to no law or proceeding which seemed to him injurious to the welfare of the Colony, or which should repeal the provision for annual election to the Council or Assembly, or those respecting trial by jury or religious liberty.

33

It was to obtain the liberty of British subjects under free parliamentary government, rather than independence, that was the dominant purpose of the people of New Jersey at that time, and there were members of the Provincial Congress who were unwilling to break irrevocably their allegiance to the Mother country, and so there was added the proviso "that if a reconciliation between Great Britain and these Colonies shall take place, and the latter be again taken under the protection of the Crown of Great Britain, this charter shall be null and void, otherwise to remain firm and inviolable."

The Declaration of Independence and the constitution of New Jersey were proclaimed in Trenton on July 8th and were received with loud acclamations. The first legislature elected under the constitution passed its first act on September 13, 1776, and on October 2, it passed an act to confirm and establish the Courts of Law and Equity with like power under the present government as before the Declaration of Independency lately made by the Continental Congress. The Constitution had made no provision for any change in the courts, and so it is that the constitutional organization of the courts is to be found in the ordinances of Lord Cornbury and the other Royal Governors.

The organization of the government framed by the Instructions for Lord Cornbury, the ordinances of the Governors and the Constitution of 1776, continued unchanged until 1844 when the legislature itself without authority from the constitution, called a Convention to be elected by the people of the counties, to frame a more complete statement of the fundamental laws of the State. This Constitution so adopted by this Convention June 29, 1844, was ratified by the people on the thirteenth of August of that year, and was amended in certain points at an election held September 7, 1875, and again on September 27, 1897.

"Constitution of 1776.

"Scott's Magazine, Edinburgh, August, 1776, p. 436.

There was no bill of rights or statement of fundamental rights in the constitution of 1776, and the only express limitation of the powers of the legislature was that which was expressed in the oath required to be taken by the members.

The traditional fundamental rights of liberty and property expressed repeatedly in the early charters, were embodied in the common law which was adopted by the Constitution. The right of trial by jury as a constitutional right unaffected by statute, was recognized by the New Jersey Supreme Court in 1748, in the case of Holmes v. Walton, which was perhaps the earliest decision in the country in which a law was declared unconstitutional35 and there are many early decisions recognizing the principle that private property may not be taken for public use without compensation.

36

A bill of rights modelled upon those of other states and that of the United States, was embodied in the Constitution of 1844, and there were other specific limitations of the powers of the legislature. The bill of rights was in fact a detailed expression of the principles of the freedom of the British subject from arbitrary authority on the part of the persons in control of the government. The general principles expressed in Magna Carta were stated in the early agreements with the settlers of New Jersey. They were stated in detail after the settlement of New Jersey in the bill of rights adopted in England on the revolution there in the time of William and Mary, and these details were elaborated in the colonies when they formed their constitutions as independent states and again in the first ten amendments of the constitution of the United States, and in New Jersey in 1844. In the beginning the declarations of Magna Carta were directed against the power of the Crown, then holding the Supreme power, and they were made at the instance of that body of citizens, the nobles of England, which was then the only power able to restrain the power of the Crown. There was little thought at that time of protecting the laboring classes against oppression and still less of guarding the right of contract as a part of the liberties of the individual. In the colonies in America the principles of Magna Carta were asserted for the protection of the people

See Pamphlet by Dr. Austin Scott of Rutgers College entitled “Holmes v. Walton, a New Jersey Precedent." Rutgers College Publications, 1890. Courts and Lawyers of New Jersey, Vol. I, p. 681.

"Scudder v. Trenton Delaware Falls Co. Saxton, 696.

against arbitrary action on the part of the Crown or of any officers in authority under the Crown. After the revolution, on the formation of the State and Federal Constitutions, the motive was not merely to restrict the powers of public officers, but also to protect property interests and control the growing power of the democracy, and, whichever class had control of the powers of government, the effect of such provisions in favor of the ultimate right of the individual was to control the men in power so that their power should not be unlimited, and that every citizen might be secure in his person and property and be assured that he was under a government of law, a government of equal and unvarying rights, rather than a government of the men to whom the exercise of the power of government was entrusted.

The essence of constitutional government, whether the constitution be written or traditional, is that the framework of the government is established and that the powers of the men in control of it are limited. The function of a written constitution is to define the outlines of this framework and declare the scope and limitation of the powers of the men or bodies of men by whom the powers of government are exercised. The early constitutions of New Jersey were dealing with new and untried conditions, but for the most part they were so drawn as to fulfill these functions, and so far as they went beyond them and dealt with details that were not fundamental, they failed to be effectual. The latest of them, the constitution of 1776, assumed the existence of the fundamental liberties and defined the functions and powers of the various parts of the framework of the government. The constitution of 1844 and other state constitutions as well as that of the United States, define in detail the traditional fundamental rights of free citizens. The constitutions adopted in recent years have attempted to place restrictions in matters of detail upon legislative action. It has been done for the protection of the interests of the people, but it is born of the want of confidence in the power of the people to protect themselves and will have the effect of hampering the social, economic and political development of the commonwealth. The best constitution is the one that establishes the form of the government and makes only such restrictions upon the powers of the governing body as are necessary to preserve the fundamental principles of the liberty of the individual, having in view always the public order and the general welfare.

There is a tendency at the present time to minimize the importance of the rights of the individual while seeking to improve by legislation the welfare of the people as a whole, but because of the fact that the public welfare is becoming more and more the object of desire and solicitude, it is especially important that individual security in person and property and rights of contract should be guarded by the constitution against being over-ridden by the zeal of men for the time being in control of the government. These are rights that are equally essential to the rich and the poor. The history of the struggle for the assertion and preservation of these rights is the history of the age-long struggle for freedom and constitutional government. The paramount welfare of the state is the freedom and the personal independence and initiative of its citizens, and our citizens cannot safely give up these hard-won privileges even though the legislative power is now in the hands of men elected by a plurality or even a majority of the qualified voters. A due appreciation of the value of a constitution which has grown up out of the development of individual liberty is an essential in the safety and the freedom of action of a progressive democracy.

NEWARK, N. J.

EDWARD Q. Keasbey.

THE NEW JERSEY COMPENSATION LAW.

At a public meeting in the Senate Chamber at Trenton on March 2nd, a number of lawyers representing large business interests in the State of New Jersey opposed all amendments to the workmen's compensation law as proposed by the State Employers' Liability Commission of which William B. Dickson, formerly director of the United States Steel Corporation, is Chairman.

The arguments given and the statements made in opposition to the amending bills were remarkable for the variety of grounds on which they were taken. In a discussion on the proposal that a Workmen's Compensation Bureau should be established which would bring into the courts, on behalf of injured workers, delayed claims against employers and insurance companies, one attorney stated that the bill would take the administration of the law out of the courts while the next asserted that it would throw every case into court.

Again in making objection to the proposed raising of the standard of compensation for total disability from 50% to 66%% of the workers' wages, attorneys who opposed amendments in this direction made the following conflicting statements:

"There is harmony and contentment under the existing law", and "In every case the injured think the compensation inadequate”. "Employers need their total assets for giving employment", and "Most employers now go voluntarily beyond the requirements of the law in compensating their injured employees”.

With this obvious confusion in the minds of those opposing amendment of the New Jersey compensation law the only reasonable course is to seek the evidence of facts rather than expressions of opinion.

The Employers' Liability Commission, appointed under the law to watch and report on the working of the act, state in their recently issued report:

"It must be apparent to the most casual observer that to provide any real supervision of the operation of the Workmen's Compensation Law, a more liberal provision must be made. Under the circumstances, we have only been able to do the clerical work necessary for the tabulation of reports received from employers and insurance companies and have had no means at