David Brearley Leaves Continental Army for the Supreme Court

David Brearley was born in 1745 in Hunterdon County. He went to Princeton, studied law, and established a law practice at Allentown. He was an early and outspoken critic of British policies who was briefly arrested by Royal authorities before being freed by a sympathetic mob. Brearley was the first colonel of the Upper Freehold militia before being mobilized as Lt. Colonel in General Nathaniel Heard’s New Jersey Flying Camp. He was with the Continental Army through the disastrous New York Campaign of 1776.

Brearley was then commissioned the Lt. Colonel of the new 4th New Jersey Regiment of the Continental Army. Except for a furlough to be with his wife, Elizabeth, as she died in August 1777, Brearley served with the Army stoically through the difficult Philadelphia Campaign (fall 1777), the famous winter at Valley Forge, and the Battle of Monmouth.

Brearley served faithfully but not silently. Along with Colonel Israel Shreve, he returned to New Jersey in February 1778 to advocate for better provisions for his men, shivering at Valley Forge. He appealed to the New Jersey government:

The condition of the New Jersey troops is such that it would be criminal to keep silent longer… New Jersey soldiers are as brave as any. Why they should be neglected is a problem in politics hard to explain.

Brearley also returned to Allentown in March to look in on his motherless children, but before he did, he was one of six officers to sign a memorial to the Continental Congress complaining about the inadequate provisions available to the Army.

Leaving the Continental Army

While the Continental Army’s winter at Valley Forge (1777-1778) is more famous, the winters of 1778-1779 and 1779-1780 were harsher on the men. The New Jersey Line shrunk from four to two regiments in 1778, but, even with the downsizing, the New Jersey government still struggled to recruit and provision its soldiers. On April 17, 1779, Brearley, Captain Jonathan Forman and Forman’s three junior officers signed a letter to the New Jersey Assembly complaining of the lack of provisions for the troops and the inflation that depreciated their pay.

Three weeks later, Captain Forman wrote bitterly about the indifference of the New Jersey Legislature to its state’s soldiers. He sent near-identical letters directly to George Washington and Governor William Livingston on May 8. After mentioning past petitions to the state legislature, he stated:

It will be proper to inform your Excellency that the officers of the Jersey Brigade have repeatedly at almost every session of the Assembly since 1777 memorialized upon the necessities of the troops, but we have the misfortune to inform your Excellency that not a single resolve was entered into the minutes on our favor.

Forman threatened mass-resignation from New Jersey’s line officers:

We have lost all confidence in our Legislature, reason and experience forbid that we should have any…  We have the highest sense of your ability and virtue, the execution of your orders has given us pleasure, that we love the service and we love our Country; but when that Country gets so lost to virtue & justice as to forget to support its servants, it then becomes their duty to retire from that service.

However, Forman did not resign. Brearley, as his commanding officer, may have convinced Forman to stay in the service. He remained in the Army until 1783, and was even promoted to Major.

Washington wrote General William Maxwell, commanding Brearley’s regiment. He was unsympathetic:

Our troops have been uniformly better fed than any others—they are at this time very well clad and probably will continue to be so—While this is the case, they [the complaining officers] will have no just cause of complaint. It is important that any misconception on this point should be rectified.

Washington, however, took the complaint as an opportunity to lobby for his men. He forwarded Forman’s letter to John Jay, serving in the Continental Congress, warning that: “This is an affair which Congress will no doubt view in a very serious light.” He discussed that “the distresses in some corps are so great… that officers have solicited even to be supplied with the cloathing destined for the common soldiery.” Washington concluded: “The patience of men, animated by a sense of duty and honour will support them to a certain point, beyond which it will not go.” He ended the letter by warning of the “extreme danger” of a mass officer resignation.

Meanwhile, Forman’s letter to Livingston apparently prompted action from the New Jersey Assembly. Washington wrote of a letter he received from Livingston:

I have this moment received information that the Assembly have made some provision for their troops. It seems there was a compromise upon the occasion. The officers withdrew their remonstrance, and the Assembly went into the business. It is lamentable, that the measure should have been delayed, ’till it became in a manner extorted. Notwithstanding the expedient adopted for saving appearances, this cannot fail to operate as a bad precedent.

After months of discontent, Brearley apparently readied to leave the Army. In May, he was ordered to prepare his men for a difficult campaign against the Iroquois and marched with them to Easton, in northeast Pennsylvania, where the campaign would soon begin. The prospect of spending months in the wilderness might have been the final nudge Brearley needed to look for other forms of service. He likely exchanged letters with New Jersey leaders about the state’s vacant Chief Justice position (Chief Justice Robert Morris resigned on June 10).

On July 1, General John Sullivan, commanding the Army in Northeast Pennsylvania, wrote, "Lt Col Brearley having business of importance which calls him to New Jersey has leave to retire from the Army and settle the same." On July 2, Brearley recorded that he "retired from Wyoming." Soon, he was home in Monmouth County.

Chief Justice of the Supreme Court

On July 22, Brearley wrote the Continental Congress "that the State of New Jersey, to which he belongs, has lately appointed him Chief Justice of the State, an office important & honorable, but not lucrative.” He noted that the state “requested him to retire from the Army and enter upon the duties of that office” and “that he is determined to comply with the request; but is very desirous of holding his rank in the Army without pay." Congress dismissed the request, noting in its minutes: "Resolved, that the desire cannot be complied with."

Brearley was in Philadelphia on July 25 when he received this news and presumably informed friendly members of Congress that he was leaving the Army to become New Jersey’s Chief Justice. Some sources suggest he served his first day as New Jersey’s Chief Justice on July 27 (the first day of the 3rd Monmouth County Court of Oyer and Terminer) although Brearley would later state that August 4 was his first day of service.

Despite Congress denying Brearley’s request to maintain his commission, he apparently never resigned, and this became a source of controversy. On September 4, Brearley wrote to Colonel Shreve, commanding the 2nd New Jersey Regiment, regarding complaints about him. Brearley wrote defensively that "they charge me with wishing to serve individuals, [but] so would every gentleman that wishes to do justice for his Country.” He then asked Shreve to deliver a tough message to the junior officers who wanted his commission:

You therefore will please inform these gentlemen who wish so much for my promotion, and it is very uncertain when I shall or whether I shall resign at all; for when I was at Philadelphia, I was advised by some gentlemen of high rank and knowledge not to resign.

Brearley did not resign until July 1780, and it apparently took the intervention of George Washington to force the matter. Washington wrote Brearley on July 7:

I have to request that you would be so obliging as to inform me by the earliest opportunity at what time you were appointed as the Chief Justice of this State. My reason for this request is that a board of officers of the Jersey line ought to take rank from that time.

Brearley replied on July 11: "I am to inform your Excellency, that I was sworn into Office as Chief Justice the fourth day of August last." Even at this time, he did not explicitly resign. Some sources suggest that Brearley finally resigned on March 17, 1780—eight months after he left the army. 

Brearley’s reluctance to resign was not without precedent. Monmouth County’s two other high ranking Continental Army officers behaved similarly: Lt. Colonel David Rhea did not resign his commission until summer 1780, despite leaving the army to serve as Monmouth County’s Quartermaster agent in 1778. Colonel David Forman lost command of his regiment in early 1778, but maintained his commission through the entire war.

Brearley left Allentown and moved to a fourteen-acre farm outside of Trenton, but the job of Chief Justice kept him on the road much of the time. Over his decade of service as New Jersey’s Chief Justice, the state’s courts gradually professionalized and the irregularities that plagued New Jersey’s first courts steadily lessened. As Chief Justice, Brearley attended Courts of Oyer and Terminer on which he sat with a panel of county judges. These courts heard the most severe and politically-oriented charges. Brearley participated in meting out several death sentences, including many in Monmouth County.

Brearley presided over Holmes v Walton, a case involving the seizure of silks from John Holmes and Solomon Ketchum of Middletown by Major Elisha Walton. While the goods were almost certainly acquired illegally, Holmes and Ketchum were not given a fair jury trial. The seizure was upheld by Judge John Anderson and a six-man mini-jury that was treated to free liquor by Walton. Holmes, lacking an appeal under the law, hired an attorney, William Wilcocks, a former Judge Advocate for the Continental Army, who filed a case before the New Jersey Supreme Court.

Brearley likely knew of all of this as he became Chief Justice and was well-acquainted with Wilcocks, with whom he served in the Army. Brearley heard the case In September and invalidated the seizure of the silks on the grounds that the New Jersey law under which the seizure was made was unconstitutional (because it did not give Holmes a full jury trial, a right guaranteed in New Jersey’s Constitution). The case is the first known example of judicial review in U.S. history, and established the power of the courts to void a law as unconstitutional. However, Brearley took ten months to issue the ruling in order to give the New Jersey legislature time to amend the law.

As Chief Justice, Brearley was able to take on special assignments, one of which was to host and serve on a multi-state commission to settle the boundary dispute between Connecticut and Pennsylvania over rights to northeast Pennsylvania. In late 1782, Brearley and the commission sided with Pennsylvania. At the end of his tenure, Brearley participated in the Constitutional Convention where he played a prominent role in advancing the “New Jersey Plan” for the new national Congress—a plan premised on all states having the same number of Congressional delegates regardless of their size. Brearley was also active in devising the Electoral College as a compromise between big and small states, and a check against a popular demagogue who might temporarily win the favor of an electoral majority.

After the Convention, Brearley returned to New Jersey and played a leading role in getting the state to ratify the United States Constitution. He was an elector for New Jersey at the Electoral College that elected George Washington President, and then was appointed a federal judge by Washington. He died in 1790—having accomplished a remarkable amount in only 45 years of life.

Related Historic Site: St. Michael’s Episcopal Church

Sources: T.H. Pyle, David Brearley: America’s Most Important Forgotten Founding Father, unpublished manuscript in the possession of the Allentown Historical Society); William Stryker, The New Jersey Continental Line in the Indian Campaign of 1779, (1885) p 15; New York Historical Society, Fairchild Collection, item: Jonathan Forman; Selections from the Correspondence of the Executive of New Jersey, From 1776 to 1786 (Newark, NJ: Newark Daily Advertiser, 1848) p 146; Dennis Ryan, A Salute To Courage The American Revolution as Seen through Wartime Writings (New York: Columbia University Press, 1979) p 151; The Papers of George Washington, Revolutionary War Series, vol. 20, 8 April–31 May 1779, ed. Edward G. Lengel. Charlottesville: University of Virginia Press, 2010, pp. 439–441; Diary, New Jersey State Archives, Revolutionary War, Manuscripts Coll., box 2, #12; Library of Congress, Journals of the Continental Congress, vol. 14, p 861; Gen. John Sullivan to David Brearley, National Archives, Papers of the Continental Congress, M247, I41, Memorials to Congress, v1, p475; David Brearley to Congress, National Archives, Papers of the Continental Congress, M247, Remonstrances to Congress, I43, p53; David Brearley to Israel Shreve, Pennsylvania Historical Society, Dreer Collection, David Brearley, September 4, 1779; Library of Congress, George Washington Papers, http://memory.loc.gov/cgi-bin/query/P?mgw:2:./temp/~ammem_wnJq:: and “To George Washington from David Brearley, 11 July 1780,” Founders Online, National Archives, last modified November 26, 2017, http://founders.archives.gov/documents/Washington/99-01-02-02439.