Nature, that it is impossible they should be ever settled in the ordinary Course of Law. I don't know that any Person will oppose the Confirmation of this Act, unless it be M W Bayard of New York, now in London, who has set up a Claim to the whole of that Part of the Commons allotted to Secaucus; but as he had before solicited the Act to which this is a Supplement, wherein the Decision of that Matter was left to Commissioners, who would have finally determined the Property but that they happened to be equally divided in opinion respecting it, I should expect that he would not now offer to make any Objections to its being left to the Decision of other Commissioners, especially as they are all Men of Character, living at a Distance from the Parties, and no Ways interested or connected with them in the Dispute. Many of the Parties are poor & cannot afford to go to Law with a Man of M: Bayard's Property, and if they cannot have their Claims decided by Commissioners they must give them up; the Consequences of which will be very hurtful to the Peace of that Part of the Country.-I would not willingly trouble your Lordship with anything further on this Head, but must beg Leave to refer you to the Privy Council Minutes of the 16th of November for the Reasons which induced the Council to advise me to give my Assent to this Act, which I hope will prove satisfactory to your Lordship. Besides the written Laws under the Great Seal I send your Lordship a printed Copy of all the Acts passed at the last Session. The Minutes of the Assembly are in the Press, but not yet published; as soon as they are I shall transmit a Copy to your Lordship. I have the Honour to be, with the greatest Respect, My Lord, Your Lordship's most obedient and most humble Servant WM FRANKLIN Letter from Mr. Richard Stockton to the Earl of Hillsborough, giving his opinion that the Governor, for the time being, of New Jersey, is duly authorized to hold a Court of Equity and preside therein. [From P. R. O. America and West Indies, Vol. 175 (193).] Lord Hillsborough My Lord, PRINCETON Feb 26th 1770 From the Journals of the Governor & Council of this Colony, of November last (before now I suppose transmitted to England) your Lordship must have observed the doubt raised by the Governor, respecting his Authority to hold a Court of Equity here: and that the consideration of the matter has been referred to a Committee of the Council. This transaction having occasioned much Speculation in this and the neighboring Colonies; and the Members of the Committee not being unanimous in opinion upon so important a point, my duty to the King, and regard to my own reputation have induced me, thus early, to beg leave to lay before your Lordship the enclosed copy of my Report, delivered in to the Governor last month: whereby my Opinion, and the reasons thereof will fully Appear. And I the rather presume upon your Lordships pardon for this step, (not perhaps the most usual) because I have lately been informed that some persons on this side of the water, have taken upon themselves to procure representations to be made to the Lords Commissioners for Trade & plantations respecting the present state of our Court of Chancery: and also, because it must be some time hence before the Journals of the Council, upon the Committee's Report, can be trans- Your Lordship's most obedient, and RICH STOCKTON Mr Stockton's Report In his Letter of the 26. Feb 1770. His Excellency the Governor of New Jersey, having asked the advice of his Majesty's Council of the same Province respecting the power of the Governor to hold a Court of Equity, and to sit as the Judge thereof; and the consideration of the matter having been referred to a Committee of five Members; as one of the said Committee, I do hereby report my opinion, that the Governor and Commander in chief of this Province, for the time being is duly authorized to hold a Court of Equity, and to sit as the Judge thereof─And as the Subject is of very great importance in itself, and particularly interesting to the Province in general, I have thought it expedient to subjoin the reasons of my opinion. In forming it, I have considered the subject under these two Questions, to wit. 1st Whether a Court of Equity does exist in this Province and, if it does, 2dly Whether the Governor is the Judge of it ?—The reasons which have induced me to believe that a Court of Equity does exist in this Province, among others, are 1st Because the four Courts of Westminster Hall, to wit, the Chancery, King's Bench, Common Pleas and Exchequer owe their existence to the Common Law of England; and not to any Statute of Parliament, or Ordinance or Proclamation of the Crown. Every Colony therefore, migrating from the Mother Country Salk. 411 to a new discovered Country, bring with them, as part of the Common Law, the Jurisdiction of these several Courts; or in other words a right of having themselves and their property adjudged according to the ordinary course of proceeding in these Courts; And all that is wanting, in such newly discovered Country, is for the King to commissionate proper Judges; the Courts being ready erected to his hands. It has therefore been very properly doubted whether any of these Courts needed at first, or ought to have been raised, in the King's Colonies, by Ordinance from 2 Haw. 2. Sect. 3. the Crown; as it is certain, the King cannot by his prerogative make the least alteration even in the manner of proceeding in these Courts in England. 4 Inst. 73. 66 2dly Because many Writs which have continually issued in this Province, and to which the Subject has an indubitable right by the Constitution, cannot issue from any other Court than a Court of Chancery--This Court, as to its ordinary jurisdiction, my Lord Coke and other Writers call the " Officina Justitiæ, out of 4 Inst. 80. "which all original Writs, and all Commis"sions which pass under the Great Seal go forth, which "Great Seal is Clavis Regni, and for those ends this 'is ever Courtopen." And by some it is called “Officina Brevium originalium et remedialium." Curs Cancell, 3 Original Writs, such as those of Dower, Replevin, Partition, & are called the Kings Writs because they issue out of the Court of Chancery, and are tested in his name; in contradistinction to Judicial Writs, which are tested in the name of the Chief Justice of the Court from whence they issue: And the 66 King's Writs are to be granted to the Subject ex debito Justitiæ, and cannot be denied: wherefore as the Kings Subjects of this Colony have an undoubted right to his Writs, and have continually obtained them from the first Settlement of the Province; and for as much as these Writs cannot issue, but from the Ordinary Court of Chancery; the consequence is inevitable that an Ordinary Court of Chancery must exist in this Province-And if an Ordinary Court of Chancery exists as an Officina Brevium, there can be no reason why the Extraordinary Court of Chancery or a Court of Equity should not exist; as the Judge of one is always the Judge of the other, and these two Courts of Ordinary and Extraordinary Jurisdiction cannot be now disunited, but by Act of Parliament. 3dly Because we have adopted in this Colony the Law and practice of the other Courts of Westminster Hall; and therefore we must of necessity have the same relief in Equity, from the Severity of Some legal determinations. To Say the contrary would be to say that there was 1 Salk. 21. Right without any Remedy; which is against a principle of Law, as well as the common Sense of mankind. This very necessity gave Jurisdiction at first to the Equity Side of the Chancery in England, as is more evident from the Laws and Customs of the Realm, in the ancient times of the British, Saxon and Danish Curs. Can. 1, 2 Kings, when the King himself in person, held a Court similar to the Equity Side of the Chancery, to moderate the Summum jus, as it was called, and to give relief according to good Conscience: wherefor if the Equity Side of the Chancery could be supposed not to exist in this Colony; we must be driven by the constitution, to conclude, as the most rational alternative, that the ancient right to moderate the Summum jus is still vested in the King's Person, and 1 Har. Pract. 5. 6. |