David Brearley’s story is one of the many colorful tales of the founders of our country, but incredibly, it was overlooked shortly after his early death in 1790, and until now, almost entirely forgotten. This is all about to change with the David Brearley Constitution Center at his old church in Trenton, NJ, The story that follows is thanks to the research work of Constitutional lawyer Donald Scarinci, in his book David Brearley and the Making of the United States Constitution (2005).
David Brearley Jr. was born in 1745 at the family homestead in Maidenhead, close by the Brearley House that still stands today, which his uncles and father built when young David was sixteen. When he was still a little boy, however, in 1747, his father, David Sr. was a leader in an early uprising against the crown which supported the Coxe family’s royal charter for colonists’ lands, allowing them to charge “rents” on lands that colonists had bought and cleared years before. David Sr. was charged with high treason, but broken out of Trenton’s gaol (jail) by about 60 patriots. That same year St.Michael’s church was being built on land donated by the Coxes!
As a young man, David Jr. read law at The College of New Jersey (Princeton) and was admitted to the bar in 1767. Having married the prior year, he set up his law practice in nearby Allentown NJ, and moved there with his family.
When the war broke out, he and his older brother Joseph served as captains helping to raise the Monmouth County militia. Joseph fought bravely in the Battle of Quebec and contributed greatly to the northern campaign, but became disillusioned with the military bureaucracy and came home, while David, now a colonel, went on to fight the Battles of Brandywine, Germantown, and Monmouth. At Valley Forge, Washington appointed David as his judge to handle court marshals. Not long after, in 1779, he was called to serve New Jersey as its Chief Justice in circuit court, while continuing to support his military role in the militia.
CHIEF JUSTICE of the NEW JERSEY SUPREME COURT (1777-1790)
Just before the war ended, in 1780 Brearley decided one of the most important cases in our early nation – the precedent that the state’s Supreme Court could overturn a law as “unconstitutional.” Two merchants had been caught by Monmouth County militia selling silk (over $7,000 worth) to the British on Staten Island. The law for smugglers, leniently allowed conviction by a jury of six, which they protested, as all other cases required a jury of twelve. Against popular approval, Brearley decided in their favor… the law of the land required a jury of twelve.
Throughout the Revolutionary War and after, because New Jersey bore so much of the war on its soil, our state took on more of the national debt than most states. However, without ports like Philadelphia and New York to tax imports being brought in, New Jersey couldn’t raise funds to pay off our debt. It was Brearley who signed the state’s paper currency (see the picture below of an uncut proof-page of New Jersey’s currency). The problem of financing our state led Brearley, with Governor Livingston and other leaders to refuse to pay taxes to the new U.S. government until a new federal system could be put in place to handle trade. It was this issue especially that led to the Constitutional Convention in Philadelphia, in May 1787, and it may well have been Brearley’s guts, inherited from his father, that prompted the state to make the issue in this way!
As explained, New Jersey helped call for the Constitutional Convention in Philadelphia, in May 1786, to which Brearley was a delegate. Early on, it was David Brearley who first spoke out against Virginia’s draft for the new constitution which gave all the power of the government to the legislature. The Virginia Plan proposed one house whose votes were by population, and to a second house whose votes were by taxable wealth. Brearley pointed out they counted slaves as population and wealth, making Virginia the richest AND most populous state in the union!
The New Jersey Plan opened up the debate that would keep the small states in the discussion. Connecticut suggested one house (the Senate) where every state had the same number of votes. The debates went on for three months, and in July a full draft was created; but in August the convention was about to disband. No one could agree on enough points to get the draft ratified. Everyone wanted to go home, and it might have been the end of our ”united” states. With eleven states still at the table, Washington had David Brearley lead a committee to meet each night. Each morning, Brearley would read off the proposed changes to the draft constitution. By the fifth day, his group had created a new office of the Vice President, figured out how the President would be elected, and listed the powers of each office. The new revisions suggested that the cabinet, Supreme Court, and embassies would be chosen by the President and not Congress. It was only five days of further debate on the floor to iron out the wording, and the first version of our present constitution was ratified with only three abstentions. It was then sent to the states and people for a vote on whether their state would join the union or not.
RESIDENT OF TRENTON
Not long after Elizabeth Mullen, the mother of his step-daughter and four children died, David married Elizabeth Higbee, daughter of Joseph Higbee, one of St. Michael’s senior parishioners. Brearley moved his family from Allentown, NJ to Trenton, where he became the Senior Warden of St.Michael’s. This list of parishioners is in his handwriting. Joseph Higbee is #13, Brearley lists himself as #27. Colonel Coxe is #1.
He served the church until his death in 1790, as well as being the first Grand Master of the Masonic Lodge of New Jersey. Quite interestingly, Daniel Coxe, father of Colonel Coxe (whom David Sr. had challenged) introduced the Scottish Rite of Masons to America. David Brearley Sr. lived until 1778. However, it is brother John, who built and lived in the Brearley House in Lawrence Township, which serves as the museum in Mercer County dedicated to David Brearley’s life. David Jr.’s children and descendants, buried in this churchyard, went on to become a part of Trenton life well into the 20th century.
The Brearley family story has many interesting and very personal turns to it. David Sr, as we’ve seen, was quite a character in his own right; and yet as to his son, David Jr. started out, long before the war, with some swagger of his own. As a young man, whom we assume was reading law at Princeton at the time, took it on himself to save the name of a young lady, Elizabeth Mullen, several years his senior. Elizabeth had been engaged to a British Lieutenant stationed at the Barracks. When he received his orders to redeploy to Ireland, they decided to elope, but she was caught on the dock by her mother. Unfortunately, it was not to be that easy. Elizabeth was already pregnant with her daughter. David Jr. married Elizabeth and adopted her daughter, and a year later set up their household in Allentown. A few years later when the war broke out, the Brearleys had a brood of their own, and this daughter helped raise her step-brothers and sisters. After her mother’s death, David re-married and moved them all to Trenton; but at the conclusion of the war with England, his step-daughter moved to England to live with her own father, and never mentioned Brearley again. Indeed, she had been in touch with her real father all her life, throughout the Revolution, and in the years her foster father, David, was Supreme Court Justice of the State of New Jersey! We can hardly imagine it was anything but a well-guarded family secret, straight from a romantic novelist’s pen!
For another short biography, see Revolutionary NJ.org
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