On October 8, 1778, amid the American Revolutionary War, the New Jersey Legislature passed a law that made it "lawful for any person or persons whomsoever to seize and secure provisions, goods, wares and merchandize [sic] attempted to be carried or conveyed into or brought from within the lines or encampments or any place in the possession of the subjects or troops of the King of Great Britain".

[10] In addition to custom and English common law, two documents from the early history of New Jersey may have been thought relevant to the decision in Holmes.

[11] The first, chapter 22 of the West Jersey Concessions and Agreements (1676/77),[a] which was "not to be altered by the legislative authority", stated "[t]hat the trial of all causes, civil and criminal, shall be heard and decided by the verdict or judgment of twelve honest men of the neighbourhood".

[12][13] The second was a formal declaration of rights and privileges passed by the House of Representatives in East Jersey on March 13, 1699,[14] which asserted that "all trials shall be by the verdict of twelve men".

[11] By virtue of the 1778 Seizure Law, Elisha Walton, a major in the colonial militia, seized goods from John Holmes and Solomon Ketcham.

A full bench was present, including Chief Justice David Brearley, Isaac Smith, and John Cleves Symmes.

[20] Brearley's holding can be inferred from a petition delivered in the New Jersey General Assembly on December 8, 1780, where "a petition from sixty inhabitants of the county of Monmouth was presented and read, complaining that the justices of the Supreme Court have set aside some of the laws as unconstitutional, and made void the proceedings of the magistrates, though strictly agreeable to the said laws, to the encouragement of the disaffected and great loss to the loyal citizens of the state and praying redress".

[22] Livingston argues: ... if an act of legislation can constitutionally be made, declaring that no person in whose possession any goods, wares or merchandise shall be seized and captured as effects illegally imported from the enemy, shall be entitled to such a writ ... if such an act, I say, should be passed it would probably encourage such seizures and give additional check to that most pernicious and detestable trade, the total suppression of which is one of the most important objects that can engage the attention of the legislature.

[23] On the day after the argument before the Supreme Court, on November 12, 1779, Jonathan Deare, member of the Legislative Council for Middlesex, obtained leave to bring in a bill amending the "seizure acts".

We do not know what the provisions of the bill were, but we do know that the General Assembly attempted to amend it with a clause confirming the requirement of the six-man jury in past and pending cases.

[27] In 1785, Gouverneur Morris argued before the Pennsylvania legislature against passage of a law to repeal the charter of the Bank of North America.