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“ mination of such Appeals, unless good and sufficient Security be given by " the Appellee, to make ample Restitution of all that the Appellant shall “ have lost, by Means of such Judgment or Decree, in Cafe upon the De“ termination of such Appeal, fuch Decree or Judgment should be reversed, “ and Restitution awarded to the Appellant.”


F all our Courts, none has been more obnoxious to the People than

this. There have been (as I have already shewn) few Administrations since its first Erection, in which our Assemblies have not expressed their Difapprobation of its Conftitution by Ordinance, and the Exercise of the Chancellor's Power by the Governour. During the Administration of Governour Cosby, a Bill was filed by Sir Joseph Eyles and others, to vacate the oblong Patent granted by his immediate Predecessor to Hauley and Company. The Defendants excepted to the Governour's Jurisdiction, but being over-ruled, they resorted to the Assembly with a Complaint, and the House, on the 6th of November 1735, resolved,

ss That a Court of Chancery in this Province, in the Hands or under the « Exercise of a Governor, without Consent in General Assembly, is contrary “ to Law, unwarrantable, and of dangerous Consequence to the Liberties “ and Properties of the People.”

The same Sentiments obtained among the People in Mr. Clarke's Time, as very

evident in the memorable Address of the Assembly, in 1737, a Part of which, relative to the Court of Chancery, is too singular to be suppressed.

“ The settling and establishing of Courts of general Jurisdiction, for the “ due Administration of Justice, is necessary in every Country, and we conceive they ought to be settled and established, by the Acts of the whole Le

gislature, and their several Jurisdictions and Powers by that Authority “ limited and appointed, especially Courts that are to take Cognizance of “ Matters in a Course of Equity.---This has been the constant Practice in

England, when new Courts were to be erected, or old ones to be abolished or altered; and the several Kings of England, in whose Reigns those Acts were made, never conceived, that the settling, erecting, or abolishing Courts,

by Acts of the Legislature, had any Tendency to destroy or in the least to “ diminish their juft and legal Prerogatives.--- It was the Method in Use here, “ both before and since the Revolution, and particularly recommended to



to the

" the Assembly to be done in that Manner, by a Message from Governor

Sloughter and Council, on the 15th Day of April 1691. He was the first " Governor since the Revolution; and the Governors that since that Time “ assented to those Acts, we suppose, never in the least imagined, they were

giving up the Prerogative of their Masters when they gave that Affent; nor did we ever learn that they were censured for doing so.---On the contrary, the constant Instructions, that have from Time to Time been given to the Governors of this Province, feem clearly to point out the doing of

it, by Acts of the Legislature, and not otherwise, as may be gathered “ from the Instruction, for the erecting of a Court for the determining of « small Causes, by which there are positive Directions given to the Gover

nors, to recommend it to the Assembly, that a Law should be passed for that Purpose; but notwithstanding these Directions, given in direct and ex

press Terms, the Governors never would apply for such an Act, but erect" ed that Court by an Ordinance of themselves and Council, as they did " the Court of Chancery, which had before that Time been erected by Acts “ of the Legislature in another Manner.---They could not be ignorant, “ what Dissatisfaction the erecting of a Court of Chancery in that Manner,

gave the Generality of the People.---This was very manifest, by the Re“ folves of the General Assembly, at the Time of its first being so erected, " and often since, declaring the Illegality of such a Proceeding. And though “ these Resolves, have been as often as made, treated by the Governors with

an unreasonable Disregard and Contempt of them, yet to Men of Prudence,

they might have been effectual, to have made them decline perfisting in a “ Procedure, fo illegal and fo generally disfatisfactory; and which (as they managed it) proved of no Use to the Public or Benefit to themselves. For

few of them had Talents equal to the Talk of a Chancellor, which they had undertaken to perform, so it was executed accordingly. Some “ of them being willing to hold fuch a Court, others not, according as they

happened to be influenced by those about them. So that were it really “ established in the most legal Manner (as it was not) yet being in the Hands " of a Person not compellable to do his Duty, it was so managed, that the " extraordinary Delays and fruitless Expence attending it, rendered it not only useless, but a Grievance to the Inhabitants, especially those, who

so unfortunate as to be concerned in it: which we hope you think with us, that it is high Time should be redressed.

Your Honour well knows, that the establishing that Court, in the Man“ ner it has been done, has been a Subject of Contention, between the Go




vernors and the Assembly; and since it is confessed by all, that the establishing both of that, and other Courts, by Act of the Legislature, is in

disputably legal, and gives them the most uncontrovertible Authority; and “ if unquestionably legal, what is so, cannot be destructive of his Majesty's

Prerogative.---We therefore hope, you will make no Scruple of assenting “ to this Bill, to put an End to a Contention, that has not been, nor will “ be, while it continues, beneficial to his Majesty's Service.”

From this Time, the Chancery has been unattacked by the Assembly, but the Business transacted in it is very inconsiderable. A Court of Equity is absolutely necessary, for the due Administration of Justice ; but whether private Property ought to be in the Hands of the Governours, I leave others to determine *. As the publick Business of the Colony increases, few of them, I believe, will be ambitious of the Chancellor's Office, as they have not the Assistance of a Master of the Rolls. The present Officers of this Court (which is always held in the Council-Chamber at the Fort) are, his Excellency Sir Charles Hardy, Knt. Chancellor, two Masters, two Clerks, one Examiner, a Register, and a Serjeant at Arms, and not one of them has a Salary. In our Proceedings we copy after the Chancery in England, and indeed in all our Courts, the Practice at Home is more nearly imitated in this and New-Jersey, than in any other Province upon the Continent. Few of our Assemblies have been capable to concert any new Regulations of this Kind; and hence the Lawyers have had Recourse to the English Customs and Forms, which they have generally adopted. While the New-England Colonies, through the superior Education of their Representatives, have introduced numberless Innovations, peculiar to themselves, the Laws of our Mother Country have gradually obtained here, and, in this Respect, the Publick has perhaps received Advantages, even from the Ignorance of our Ancestors.

* Some are of Opinion, that the Governour's Jurisdiction in this, and the Spiritual, or Prero- · gative, Court are incompatible.

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