sides, the members of every Corporation in England have, notwithstanding their own Courts, the privilege of resorting to the King's Courts of Westminster; and cannot be restrained; but in this Colony we cannot apply to the Courts of Westminster for the institution or determination of any Suit arising in the Colony: and if we had not Courts of compleat Jurisdiction of our own; we should be in a State of Outlawry A Colony therefore in this respect, is very unlike to a Corporation; and consequently the Seal of Corporation to that of a Colony. The Counties Palatine of Chester Lancaster and Durham are not so unlike a Corporation, as a Colony is; and yet their Seals are not so unlike a Corporation, as a Colony is; and yet their Seals are not likened to the Seal of a Corporation; 4 Inst. from but because the Kings Writs do not run 204 to 220. there, they have severally Courts of compleat Jurisdiction, and each of them a Court of Equity-A

2a Objection has been made, That the Governour of this Colony, by a Royal Instruction, is prohibited from executing, by himself or his deputy, any Judicial Office; and therefore he cannot be the Judge of a Court of Equity.

If this Instruction be of the same import as the 41st Instruction to Lord Cornbury,' formerly Governor of this Province; it evidently intends only to inhibit the Governor from executing any Office which he is enabled, by his Commission and Instructions, to grant; such as the ordinary Judges of Courts of Law and Justices of the Peace-The Instruction, after directing that Judges and Justices of the Peace must be ap pointed with the advice of the Council, adds " no "shall you execute yourself or by deputy any of the "said offices:" not meaning surely that he should be

1 New Jersey Archives, II., 519.

prohibited from executing any Judicial Office; because such interpretation would disqualify him from judging in the Court of Governor and Council; which by the same set of Instructions, is constituted the Supreme Court of Law in the Province for correcting of Errors; and the Governor's presence is absolutely necessary to the very being of the Court. The Instructions therefore cannot intend any Office that the Governor is not able, with the advice of the Council to grant, but the Governor cannot, with the advice of the Council, grant the Office of the Supreme Judge of the Court of Equity; because himself is directed to keep the Seal: and therefore the Instruction most clearly cannot intend to prohibit the Governor from executing the Office of the Judge of the Court of Equity.—A

3a Objection has been started, That by another Instruction from the Crown, Appeals lie from the Courts in the Province to the Governor and Council; and it would be absurd to Suppose that an Appeal would lie from the Governor to the Governor and Council.

This Instruction can intend nothing more than Appeals in Error from the Courts of Law; for several reasons. One, which of itself seems Sufficient for this place, is, that an Appeal only lies to the King in Council from the Decrees in the Plantations; as ap2 P. Wm 261 pears by the forecited Case from 2 P. Wms 261.-A

4th Objection has been raised, That the Governor by his Commission is impowered, with the Consent of the Council, to erect any Courts for hearing and determining the Causes according to Law and Equity: and it appears, from the Records of this Province, that a Court of Chancery was first, after the Surrendry of the Government, erected here, by Ordinance passed by the Governor and Council, wherein the Governor and Council were appointed Judges of the said Court. To which it is answered, that this Clause in

the Governor's Commission never intended to give him power to create a Court of Equity-The King himself has not power to do it: for this Court must either 4 Inst. 87, 213. exist by Prescription or Act of Parliament; but can in no case be raised by Grant from the Crown. The Governors and Councils therefore, in the times of my Lords Cornbury and Lovelace, committed great error in attempting to erect by the Prerogative, a Court which really did exist by the Common Law. This Ordinance was absurd, and a mere nullity: but the maxim of Utile per inutile non vitiatur is founded upon good reason.-The legal and constitutional existence of this Court was not affected, by an attempt to make it an unconstitutional Court. And of this opinion was the Council in the time of Governor Hunter: They Saw the error of their Predecessors, and declared that the Governor having the custody of the Seal, is by that constituted Chancellor. The Court having been Supposed, thro mistake, to arise merely upon the Ordinance, and improper Judges having, in consequence thereof, sat in that Court; could not be any reasonable Objection to the same Court being held regularly by the proper Judge, when the mistake was discovered. A

5th Objection has been made, That there is no person appointed to administer the Oath of Chancellor or Keeper to the Governor.

To this it is answered, that the Members of his Majesty's Council or any three of them, are directed, in the Governor's Commission, to administer the State Oaths to him; together with the Oath of Office; and an Oath for the equal and impartial administration of Justice, in all Causes that shall come before him: Which seems very Sufficient to enable them to administer the Oath of any Office, with which he may be invested. And it is evident, in fact, that the Oath of

Vide

utes of Coun

ter to Gov'.

Min- Chancellor, in so many words, has been cil from time administered to several of the Governors of Gov Hun- and other Commanders in chief of this ProBernard. vince; and by the same authority might have been administred to every one of them. So that if the Governor be the Judge of the Court of Equity, there is no doubt, but the Council are impowered to adminster the Oath of Office.

Such are the Reasons of my Opinion upon this important point; and I am happy in having been able to satisfy my self-nevertheless they are humbly Submitted to better Judges.

PRINCETON, Jan1y 27th 1770

RICH STOCKTON

The Petition of William Bayard, Esq., of New York, to the Board of Trade, praying their Lordships to propose to His Majesty the repeal of an Act passed in the Province of New Jersey, relative to the Common Lands of the Township of Bergen.

[From P. R. O. B. T., New Jersey, Vol. 10, L. 5.]

To the Right Honourable the Lords Commissioners of Trade and Plantations

The Petition of William Bayard of New York Esquire

Sheweth

That by a private Act of the General Assembly of the Province of New Jersey Intitled An Act appointing Commissioners for finally settling and determining the several Rights Titles and Claims to the Common Lands in the Township of Bergen and for making Partition thereof in just and and equitable Propor

tions among those who shall be adjudged by the said Commissioners to be intitled to the same, obtained and passed in the fourth year of the Reign of his present Majesty at the Instance of Your Petitioner and others the Inhabitants and Freeholders within the Township of Bergen within the said Province, certain Persons therein named were appointed Commissioners for the purposes above mentioned

That the said Commissioners in the Year One Thousand Seven Hundred and Sixty four proceeded in the Execution of the said Act and having allotted to the several Grantees their respective proportions of the said Common Lands, the said Commissioners located to every Proprietor his Share therein according to the directions of the said Act, and having thereby performed all the Trusts reposed in them by the said Act, made a due and regular Return of their proceedings as by the said Act they were directed

That Your Petitioner in right of a Patent of the Island of Secaucus granted the tenth of December One Thousand Six Hundred and Sixty three to his Grandfather Nicholas Bayard and Nicholas Varlet as joint Tenants and confirmed to them by Governor Carteret on the thirteenth of October One Thousand Six Hundred and Sixty-seven, claimed before the Commissioners an Allottment of the said Common Lands, as did likewise sundry other Persons in virtue of a Sale from the said Nicholas Bayard of the said Island of Secaucus, but the said Commissioners having doubts concerning the Rights thereto, would not take upon themselves to determine to whom the said Allottment did belong and therefore in their Award or Determination only set apart a certain Lot of the said Common Lands to the said Patent of Secaucus distinguished by Number 283 in their Field Books, and left the Question of Title and Right to be decided by due Course of Law.

That Your Petitioner in right of and as Heir at Law