Holmes v. Walton as a London Trading Incident

When the American Revolution began, the state of New Jersey made it illegal to bring or sell goods to the British Army or its supporters. However, the British paid good prices and paid in specie, and the government of New Jersey had few tools to enforce its no-trade policies. Regardless of attempts to curb the illegal trade, New Jerseyans, and Monmouth Countians in particular, were tempted into trading with British assets at Sandy Hook and New York.

The illegal trade between disaffected Monmouth County farmers and British buyers was often facilitated by Loyalist middlemen nicknamed “London Traders.” This trade was so pervasive that the New Jersey legislature passed laws to authorize local officials to make arrests and seize suspect goods. But the early laws were cumbersome and frustrated both militia officers and local magistrates seeking to enforce the law. These frustrations and reports of the scope of the illegal made it to the Continental Congress which, in summer 1778, began a dialog with New Jersey Governor William Livingston about London Trading.

On August 22, Livingston acknowledged receiving a letter from the Continental Congress urging him to stop the illicit trade between Monmouth County and New York. Livingston replied that "to prevent such supplies from Shrewsbury (from whence, as the County of Bergen is almost exhausted, that villainous traffic is now carried on) will be utterly impossible without a greater military force." Despite this misgiving, Livingston issued a proclamation on August 26 in which he noted "the most boundless avarice" of those who "persist in the traitorous practice of enabling the enemy, by supplying them with provisions." He then charged militia officers and magistrates:

To exert their most vigorous efforts in support of said embargo, and particularly enjoin the civil and military officers of the counties of Monmouth and Bergen to use their utmost vigilance in preventing all commercial intercourse with the enemy, and to seize and secure all persons concerned in transporting and provisions to any place in their [British] possession, so that they [traders] may be brought to speedy and condign punishment.

The Continental Congress and Livingston continued to consider London Trading. On October 13, the minutes of the Congress recorded:

A letter of the 2nd from Governor Livingston was read: Ordered, That the letter be referred to the Board of War, and an extra of so much of it as it relates to the trade carrying on with the enemy at Shrewsbury, be sent to General Washington [George Washington].

That same month, New Jersey’s legislature passed its third law to curb London Trading. That law made it "lawful for any person or persons to seize and secure possessions, goods, wares, and merchandise, attempted to be carried or conveyed” to the enemy. The seized goods had to be registered with the local magistrate and, if the seizure was contested, the Magistrate would preside over a hearing to assure that seizure of goods was appropriate. The magistrate’s hearing did not need to be in a regular court and could be held before a six-man jury (even though a twelve-man jury was the legal standard). There was no appeal.

In January 1779, George Washington committed to sending troops to Monmouth County in order to curb the London Trade. While Continental soldiers were involved in a few arrests and seizures, there is no reason to believe they were effective in curbing the London Trade as a whole.

While militia officers seized goods suspected of being traded illegally, township magistrates were the officers charged with upholding the seizures. As noted in prior articles, Continental officers such as Major Henry Lee and Continental purchasing agents such as David Rhea, had testy relationships with magistrates who they deemed insufficiently diligent in condemning taken goods. Two township magistrates, Peter Forman of Freehold and Peter Schenck of Middletown, clashed bitterly when Forman upheld the seizure of goods from Benjamin Van Cleave, a Middletown resident.

Holmes v Walton as a London Trading Incident

On May 24, 1779, Major Elisha Walton, acting on a tip from William Wikoff, seized the goods of John Holmes and Solomon Ketchum, held by Daniel Ketchum. John James was with Daniel Ketchum at the time of the seizure. He subsequently testified: “At the time of the seizure of the goods; about sundown the evening of the seizure, John Holmes and William Bostwick came to Daniel Ketchum." After this, Ketchum "appeared to look very uneasy.” Ketchum soon left with the goods in a wagon. Phoebe Ketchum testified that she "rode in the wagon with her brother [Daniel]… along the back road" to escape notice. When they were stopped, they claimed to have no goods in the wagon.

Walton asserted that Holmes and Ketchum bought the goods from London Traders bringing in goods from British-held New York. The goods Walton seized included 700 yards of silk, 400 yards of silk gauze, and other fabrics. Walton claimed that the silk was "such a quantity as could not be purchased in all the stores of New Jersey." Thomas Henderson, the former Freehold township magistrate, supported Walton’s assessment. He said the seized goods "appeared to be such as are usually imported from Great Britain... and the quantity was greater than ever this deponent had seen in any country store.” He further stated that silks like these "were exceedingly scarce." William Hilsey said the silks "appeared imported and of the first quality." Andrew Bowne testified that he transported the silks to Ketchum’s barn. He stated that “Holmes was not a merchant” and "he had never heard of John Holmes purchasing the goods from Boston."

Testimony in support of Holmes and Ketchum was weak. Holmes asserted that the goods were purchased in Boston but was unable to produce any receipts about the purchase. Daniel Ketchum testified that he was moving the silks inland because of "an alarm at Middletown" and that the goods were purchased "honestly and righteously."  Elias Covenhoven testified that he spoke with Holmes about the goods and Holmes never indicated "the goods were carried from N. York."

The seizure of the silks was upheld by Judge John Anderson of Freehold and a mini-jury of six men. Walton promptly sold the silks for £20,000, a huge sum. Under New Jersey law, there was no way to appeal Anderson’s decision short of the state’s Supreme Court. So, John Holmes hired William Wilcocks of Freehold, formerly a Judge Advocate in the Continental Army, and Wilcocks filed a complaint before the New Jersey Supreme Court.

While the assertion that the silks were purchased from Boston seems implausible, the due process arguments offered by Wilcocks were damning. Testimony strongly suggested jury tampering: "Elisha Walton did, at his own expense, and without the consent of said John and Solomon, treat with strong liquor the jury sworn to try this case, after they were unpaneled, but before they gave their verdict in the case." Wilcocks also claimed that the October 1778 law under which the seizure occurred was overly broad because it permitted seizures "under any pretense whatsoever.” In addition, Holmes was stripped of his goods without the due process protection of a regular jury trial.

The New Jersey Supreme first heard the case in November 1779. The seizure of the silks was invalidated because Holmes did not receive appropriate legal due process (including a fair trial before a full jury). In addition, the October 1778 law that permitted Anderson to uphold the seizure without a verdict from a full jury was judged unconstitutional and voided by the Supreme Court (presided over by Chief Justice David Brearley of Upper Freehold). The case of Holmes v Walton is the first known case of “judicial review” in the United States—in which a court struck down a law as unconstitutional. Holmes v Walton was a Constitutional watershed; this is the subject of the next article.

The Scope of London Trading

Were it not for the precedent-setting litigation, the seizure of Holmes’ silks would have been just another London Trading incident. The seizure of Benjamin Van Cleave’s grain (see prior article) four months earlier aroused greater passions inside Monmouth County. The author is able to document thirty distinct London Trading incidents during the war, but it is safe to assume that that is only a small fraction of the total volume of London Trading.

The trade was so profitable that disaffected Monmouth Countians acquired more wealth (land and livestock) during the war than Whigs (supporters of the Revolution). London Trading also lured in out-of-staters. Three examples are below. These interstate incidents re-escalated London Trading to the attention of state and national leaders.

• July 3, 1781, the Monmouth County Court of Common Pleas heard the case David Ramsay of Virginia v John Chadwick. Ramsay "landed near Cranberry Inlet” where John Chadwick, believing Ramsay a London Trader, "threatened taking his boat from him" and then impounded the boat. Several Virginians wrote statements about Ramsay’s good character. The dispute was escalated to the Continental Congress. The final disposition of the case is not known.

• The Pennsylvania Gazette reported that on November 25, 1780, that "a number of persons long suspected of carrying on an illicit trade with the Enemy (by way of Shrewsbury) and depreciating our money, were apprehended.” They were: Patrick Garvey "an apothecary in the Continental service who owns part of the boat employed between Squan and Sandy Hook,” Garvey’s collaborators included two Princeton merchants. Garvey was found not guilty in the Monmouth Court of Oyer and Terminer in May 1782. The fate of the other men is unknown.

• Nathan Jackson was a New England privateer who apparently discovered that London Trading was more profitable than privateering. His double-dealing along the Monmouth shore allowed him to purchase provisions and then sell them in New York. His duplicity was eventually exposed and he was arrested and his vessel impounded. Jackson fought the charges against him for years in the courts but never recovered his vessel.

London Trading in the Courts

London Trading and related offenses drove activity in the county courts and New Jersey Supreme Court. Dozens of London Traders (or alleged London Traders) were arrested in a 1780 crackdown that led to a two-month long Court of Oyer and Terminer—twice as long as any court held in Monmouth County during the war. The New Jersey Supreme Court heard 246 Monmouth County-originated cases between its founding in 1776 and the end of 1784. About half of those cases might have involved London Trading: charges in those cases included crossing enemy lines (110 cases); supplying or aiding the enemy (13 cases); boarding an enemy ship (3 cases); and receiving stolen goods (1 case).

The frequent appeal of seizures to the New Jersey Supreme Court was a cause of concern for many. A 1780 petition from 34 Monmouth Countians noted that “many captures have been made by the inhabitants of this State from persons within the enemy lines under sanction of a law now in force in this state” and that the decision on some of those captures were “removed to the Supreme Court under the pretense of errors in the proceedings of the Magistrates.”  The petitioners complained:

Your Petitioners are informed that some of the judgments are reversed by the Judges of the Supreme Court & there remains no redress for the captors who ought to have been fully supported - Your petitioners think it highly inconsistent with Justice that in every case any error should be committed by a Magistrate, that such error should totally abolish the capture.

The petitioners requested a new law to protect the rights of people making seizures when an error was made by the magistrate. Petition signers included Elisha Walton, embroiled in Holmes v Walton litigation, as well as Captain John Walton (Elisha’s brother), Thomas Henderson, and John Covenhoven (a former state legislator).

The New Jersey Assembly read the petition on December 8. The Assembly acknowledged that setting aside seizures gave “encouragement of the Disaffected and [is] great loss to the Loyal citizens of the State." Similar petitions arrived from Middlesex and Essex counties. However, there is no evidence that the New Jersey Legislature acted on the petitions.

London trading remained a profitable endeavor through the end of war. The author’s prior research demonstrates that people in shore townships (where London trading occurred) increased their net wealth during the war despite being victimized by Loyalist raids that carried away their livestock and valuables. London Trading was risky; participants could run afoul of militia and privateer parties that seized their goods. As the war went on, complicated schemes evolved to bring goods to New York involving suspect passports and trap-doored wagons. While one ingenious scheme regarding wagons with trap doors for hiding contraband was exposed, most London trading went undetected; the practice only ended when the British left New York.

Related Historic Site: South Street Seaport Museum (New York)

Sources: New Jersey State Archives, Bureau of Archives and History, Manuscript Collection, Manuscripts, box 19, #30; Austin Scot, "Holmes v. Walton: The New Jersey Precedent", American Historical Review, 1899, vol. 4, pp 3-4; William Livingston to Congress, Library of Congress, Peter Force Collection, Series 7C, box 31, folder 2, 68:155, 211; Livingston’s proclamation published in the New Jersey Gazette, August 26, 1778; Journals of the Continental Congress, October 13, 1778, p1005 (www.ammem/amlaw/lwdg.html); Supreme Court Records, New Jersey State Archives, #44928; Common Pleas Minutes, July 1780, Monmouth County Archives; Austin Scot, "Holmes v. Walton: The New Jersey Precedent", American Historical Review, 1899, vol. 4, pp 3-5; Petition, New Jersey State Archives, Collective Series, Revolutionary War Documents, #76; Supreme Court Records, New Jersey State Archives, #18354; Compiled records of the New Jersey Supreme Court, New Jersey State Archives; Holmes v. Walton, retrial, Supreme Court Records, New Jersey State Archives, #44928; The Library Company, New Jersey Votes of the Assembly, May 13 and May 20, 1780, p 187-195; Adelberg, Michael, “Destitute of Almost Everything to Support Life: The Acquisition and Loss of Wealth in Revolutionary Monmouth County, New Jersey,” in James Gigantino, ed., New Jersey in the American Revolution (Rutgers University Press: 2015).