The opinion and argument of the chief justice of the province of New-York concerning the jurisdiction of the Supream Court of the said province, to determine causes in a course of equity.

The opinion and argument of the chief justice of the province of New-York concerning the jurisdiction of the Supream Court of the said province, to determine causes in a course of equity.

Table of contents

The Opinion and Argument of the Chief Justice of the Province of New-York, concerning the Jurisdiction of the supream Court of the said Province, to determine Causes in a Course of Equity. The Second Edition Corrected and Amended.

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The Opinion and Argument of the Chief Justice of the Province of New-York, concerning the Jurisdiction of the supream Court of the said Province, to determine Causes in a Course of Equity.
The Second Edition Corrected and Amended.

To his Excellency WILLIAM COSBY, Esq Captain, General, and Governour in Chief, of the Provinces ofNew-York, New-Jersie, and Territories thereon depending in America, Vice Admiral of the same, and Collonel in his Majesties Army, &c.

May it please Your Excellency;

IN Obedience to your Commands, by Fredrick Moris Esq deputy Secretary, to send you a Copy of what I read in the Supream Court, concerning its having a Jurisdiction to determine Causes in a Course of Equity, and, a second Message by him, to give it under my Hand,—I send you not only what I read, but what I said on that Head, as far as I can charge my Memory; what was said was spoken before a numerous Auditory, among which were the Grand Jury for the City and County of New-York, and several other Persons of Distinction. I have been told (but how truely I know not) that it has been represented to Your Excellency, that I would not suffer the King's Council to speak: If such an Account has been given you? 'tis not true. Not only the Kings Council, but every Body else that had an Inclination to speak on that Head, had free Liberty to say what they thought proper, and a Gentleman that practised at the Barr adressed himself to the Court as an Amicus Curioe, tho' he was then concern'd for his Client, to support the Jurisdiction of the Court in a Course of Equity, which at that Time was unknown to me. I choose this publick Method to prevent as much as I can any other Misrepresentation, and what I said is as follows, viz.

MY SON some Time since informed me, that in this Case of Van Dam's there was a Plea to the Jurisdiction of this Court, which I understood to be to its Jurisdiction of determining Matters in a Course of Equity; upon which I took some Pains to inquire a litle into the Matter: But upon hearing the [...] I find it to be very different from what I understood it to be. And tho' from the Term Plea made use of, it seems contradictory; because ex vi termini, a Plea [Page] in a Court supposes the Persons to whom it is submitted [...] to determine whether it be good or not, and should rather, I think, come by way of Exception than Plea; yet this being rather a Dispute about Words than Things; I am not for over ruling of it without hearing, because I think every Man that applies to this or any Court has a Right to plead what he thinks most pro [...]er for his own Defence▪ and also a Right to be heard, and offer Arguments in Maintenance of such Plea. As to the Point which has been spoken to, viz. Whether this Court has any Jurisdiction to determine in a Course of Equity? There will naturally arise several Questions, upon the well discussing of which, this Affair may be put in a tollerable clear Light. But before I state these Questions, we are to observe.

First, That in the Acts of Assembly establishing a Supream Court, and in the Ordinances afterwards made by the Governour and Council only, it is said There shall be held and kept at the City of New-York, a supream Court of Judicature: Which supream Court is hereby fully impowered to have Cognizance of all Pleas civil, criminal and mixt, as fully and amply, to all Intents and [...] whatsoever, as the Court of Kings-Bench, Common-Pleas and Exchequer within His Majesty's Kingdom of England have or ought to have. So that our supream Court by the Acts when in Force, or by the Ordinance afterwards, neither was nor is three Courts, viz. a Court of Kings-Bench, a Court of CommonPleas, and a Court of Exchequer, But one Court, stiled a Supream Court: Which one supream Court is by the said Ordinance impowered to have Cognizance of all Pleas, &c. as fully to all Intents, &c. as the three Courts there mentioned have in England.

Secondly, It will from thence follow, That whatever Judgments are given, Whether interlocutory or final, must be the Judgments of that one Court, and ought to be given when that one Court is sitting, or otherwise they cannot be said, either in Law or propriety of Speech, to be the Judgments of that Court.

Thirdly, Whether that Court is, or is not, rightly constituted; yet, the Judges in hearing, trying, and determining all Matters before them, are (by their Commission) to hear, try and determine according to the Laws, Statutes and Customs of England, and the Laws and Usages of the Provinc of New-York, not being repugnant thereto. So that the Judges (according to their Commissions) are to have no Regard to the Laws and Usages of the Province of New-York (whatever they be) if they happen to be repugnant to the Laws, Statutes and Customs of England, and therefore,

Fourthly, If it should be admitted, that the King has Powers and Prerogatives in America that he has not in England; and could act here contrary (or even repugnant) to the Laws, Statutes and Customs of England; yet, since he has been pleased to confine the Judges to determine according to the Laws, &c. of England, and those here that are not repugnant to them; and has not thought fit to make use of any such Powers and Prorogatives (if he has them?) or if he should, has not thought fit to make them the Rules and Measures for the Judges to determine by; they must (if they will not go beyond their Commissions) judge and determine as they are by them directed to do. These Things being premised, the Way seems to be pretty plain before us; and the Questions that naturally arise upon this Head are these,

First, The Supream Court being understood to be established by Ordinance of the Governour and Council, under the Seal of this Province, exclusive of the General Assembly, as are the Fees for the Practisers in it, the Question is, Whether according to the Laws, Statutes and Customs of England (according to which we must by our Commissions judge) the King can by his Letters Patent erect a Court of Equity and establish Fees?

[Page] Second. [...] He has given any power, or [...] intended to give any Power to His Governour and Council here to [...] Court of Equity, and establish Fees, exclusive of the General Assembly of this Province?

Third. Whether in Fact according to (the Laws of England, or) any Law, Letters Patent, or Ordinance now extant here, or that ever was since the Revolution, there was a Court of Exchequer erected or meant or intended to be erected (considered as a Court of Equity) in this Colony?

Fourth. Whether any less or other Authority than that of the whole Legislature can (according to the Laws, Statutes and Customs of England, by which we are to judge) erect a Court of Equity or establish Fees:

These are short and plain Questions; upon the Determination of them in a Court of Judicature, especially the Supream Court of this Province, the Freedom and Welfare of the Inhabitants of it and their Posterity are, and will be very much concerned.

As to the first Question, I believe I might safely challenge any Man, to shew any Law or Custom of England, or Book Case of allow'd Authority, whereby the King can solely by His Letters Patent (without being authorized by Act of Parliament) erect a Court of Equity or establish Fees. The whole Current of all the Law Cases, where that Matter is any way treated of being to the contrary: And whenever the Question, Whether the King by His Letters Patent could erect a Court of Equity, came into Debate (as it has very often) it has as often been determined by the Judges, That he could not: And that all such Letters Patent were void.

Tho' citing Authorities would seem needless on this Head, because, every Man that has been at the Pains to read any Thing of the Law upon this Subject knows what I say to be true; I shall however cite several for this Purpose, as

‘4th Institute 97. In the Reign of Henry VIII. the Masters of Requests thought (as they intended) to strengthen their Jurisdiction by Commission to heat and determine Causes in Equity: But, those Commissions not being warranted by Law (for no Court of Equity can be raised by Commission) soon vanished; for that it had neither Act of Parliament not Prescription Time out of Mind to establish it.’

‘4th Inst. 87. In the Case of Perrot, 26 and 27 of Eliz. it was resolved by Wray Chief Justice, and the Court of Kings Bench, That the Queen could not raise a Court of Equity by Letters Patents,—and that there could be no Court of Equity but by Act of Parliament, or by Prescription Time out of Mind of Man: but the Queen might grant Power Tenere Placita or Conusance de Plea: For all must judge according to one ordinary Rule of the common Law.’

‘4th Inst. 163. My Lord Coke speaking of Commissions, says, That Commissions are like the Kings Writts, such are to be allowed which have Warrant of Law, and continual Allowance in Courts of Justice: For all Commissions of new Invention are against Law, until they have Allowance by Act of Parliament. And he defines a Commission to be a Delegation by Warrant of an Act of Parliament or others. And adds, Sapientis Judicis est cogitare, tantum sibi esse permiss [...]m, quantum commissium & creditum. And that it is a good Rule for all Commissioners to hold the like, and ever to keep themselves within their Commission.’

‘4th Inst. 248. My Lord Coke says, Note, a Court of Equity may be had by Prescription, but cannot be raised by [...] as has been said.’

‘4th Inst. 242. A Commission without an Act of Parliament cannot raise a Court of Equity, as has been often said before.’

[Page] ‘4th Inst. 245. The Commission to the President and Council of the North, in which were two Clauses, to determine secundum Legem & Consuetudinent [...] Discretiones vestras audiendum & [...] [...] Debate in the 6th James, and there clearly resolved those Clauses were against Law. Vid, lib, in Margine.’

‘4th Inst. 213. Hil. the 11th of James in Chancery, resolved by the Lord Chancellor and Judges (among other Things) That the King cannot make any Commission to hear and determine any Matter of Equity, but Matters of Equity ought to be determined in the Court of Chancery, whose Jurisdiction therein have had continual Allowance. This Case above of the Earl of Derby is reported in 12 Coke 114. And tho' it is often said by my Lord Coke, That no Court of Equity could be but by Act of Parliament or Prescription Time out Mind beyond the Memory of Man;’ yet the having a Court of Equity, even by Prescription, is made a Doubt of. See Hobarts Reports 63. and 2d Rolls Reports 109. Martin and Marshal. And God [...]olt, who reports the same Case fol. 26 [...] tl. 360. sayeth, It was holden by the whole Court of Kings Bench, Mich. 13th of James, That no Man can hold a Court of Equity, viz. a Court of Chancery, by Prescription: And the Reason assigned for it is, because, every Prescription is against common Right, and a Chancery Court is founded upon common Right, and is by the common Law. And Hobart 63. in the same Case reasoning upon that Point, seems to think the Word [Prescription] when used with respect to the High Court of Chancery misapplyed: ‘For (says the Book) tho' it be true that the Court of Chancery has always been, and so in effect stands by a Prescription, yet that is not well reasoned; for, in pleading any Thing done in Chancery, you do not begin your Plea with a Prescription, as in the Inferior pretended Courts, but you plead a Thing done in the Court of Chancery as you do all Things in the Court of Common Pleas or Kings Bench: The Reason whereof is, that they are fundamental Courts, as ancient as the Kingdon it self and known to the Laws; for, says he, all Kingdoms in their Constitutions are with the Power of Justice, both according to Law and Equity, both which being in the King as Sovereign, were after settled in several Courts, as the Light being first made by God, was afterwards settled in the Sun and Moon. But (as he very remarkably adds) that Part of Equity being opposite to regular Law, and in a Manner an arbitrary Disposition, is still administred by the King himself and his Chancellor in his Name ab initio, as a special Trust committed to the King, and not by him committed to any other.’ This seems to give a Reason (if the Opinion of that great Lawyer be true) why a Court of Equity cannot be raised by Grant, Commission or Letters Patent. And what is said in 1st Lilly 370, appears by all the Books to be be an unquestionable Truth, viz. A Court that holds Plea by Virtue of Letters Patent, ought to proceed according to the Course of the Common Law; for no Patent ought to be granted against the Course of the Common Law. And the People of England have been always so apprehensive of drawing Things from the Common Law to what they call ad ali [...]d examen in a Court of Equity, that in the Case of the King against Standish, 1st Levins, 241, 242. on a Premunire, it remain'd a Doubt for about two Years, whether the Chancery was within the Statute, and it doth not appear that any Determination was made; but that upon the Opinion of Hale Chief Justice, That the Case was not within the Statute, nothing further was done in it. If it was a Doubt with respect to the high Court of Chancery in England▪ whether a Premunire lay, will it be a Doubt with respect to any pretended Court of Equity here, not coaeval with the Government, and not established by Act of the Legislature? Thus much with respect to the first Part of of the first Question, with Regard to a Court of Equity; now with relation to the second Part about Fees.

[Page] It seems to be a Point agreed on for Law, That the Erecting any Office [...] cannot be done without common Assent by Act of Parliament: [...] the King can lay one Penny upon the Subject without his Consent, he may lay what Sum he thinks proper. That such Fees are a Tallage, not to be done without Parliament, for this see 2d Inst. 533. All new Offices with new Fees, or old Offices with new Fees, is a Tallage upon the Subject, and cannot be done (says the Book) without common Assent by Act of Parliament. See Chutes Case, 12 Coke 116, 117, 118.

Hardres, 353. If the King had granted an Office with a Fee, it had been Void, because the King cannot charge his Subject. And I take the Maxim to be true derivativa Potestas, &c. Neither can a Court establish Fees, the Judge may think them reasonable, but that is not binding, 1 Salk. 333. Giffords Case. And indeed one would think after the Arguments in the famous Case of Ship-Money and the Consequents that did attend it, it would seem a superfluous Task at this Time of Day to prove that a Governour and his Council cannot Tax the Subject without the Assent of the Assembly here. By what hath been said, I think the Answer to the first Question may be fairly given, viz. That by the Laws and Customs of England, the King cannot by His Letters Patent erect a Court of Equity or establish Fees, and consequently, That His Governour and Council here cannot do it.

The answering this Question goes a great Way to the answering the second, viz. Whether according to the Laws, Statutes and Customs of England, the King has given any Power, or ( by any Thing that doth appear ) meant or intended to give any Power, to His Governour and Countil here, to erect a Court of Equity and establish Fees, exclusive of the General Assembly of this Province.

That such a Power has been claimed by the Governours, and always readily assented to by the Council, and put in Execution, is omnius notum. And it being as clear as the Sun at Noon Day, that the King himself cannot by His Letters Patent (I still say according to the Laws of England) erect such a Court and establish Fees without Parliament; it necessarily follows that He cannot give such a Power to another: And therefore all the Powers given by the King's Letters Patent or Instructions (if Instructions can give any) or both, for the Purpose of erecting Courts and establishing Fees, altho' they should be conceived in Words seemingly exclusive of the Assembly, (as they are not) yet they are not to be taken in that Sense, because that Sense is contrary to Law: But, the Powers given must be construed to be put in Execution in such Manner as they lawfully may be put in Execution, and that must be understood to be the Kings Meaning and Intention, which is the Meaning and Intention of the Law, according to the Maxim, eadem presumitur Mens Regis qu [...] est Juris, & qu [...] esse debet, presertim in dubie [...] Hob. 154.

And it is very plain from the Instructions that have been constantly given to the Governours for many Years past, that the King never meant or intended that His Governour and Council, exclusive of the Assembly, should establish Courts, as appears by the Instruction to Mr. Montgomery, viz. You shall not erect any Court or Office of Judicature not before erected or established, nor dissolve any Court or Office already erected or established, without our special Order. By this Instruction the Governours have fancied that the sole Power of erecting Courts was given to them; but the latter Part of the Instruction shews in what Manner the King meant His Governours should or should not erect or disolve Courts, for it goes on in these Words, viz. But in Regard We have been informed, That there is great Want of a particular Court for determining of small Causes, You are to recommend it to the Assembly of Our said Province, that a Law be passed ( if not already done ) for the constituting such a Court or Courts [Page]for the Ease of our Subjects there. As plain as it is by this Instruction that the King never intended, that His Governours should erect this Court for Tryal [...] small [...], [...] should apply to the Assembly of the Province for a Law [...] be made for that Purpose, yet it is as plain from the [...] Ordinances extant from the recalling of Col. Fletcher to this Time, that these Courts for the Tryal of small Causes, tho' formerly erected by Act of the Legislature, were erected by the Governour for the Time being (not regarding this Instruction) by the supposed [...]entitude of their own gubernatorial Authority. So that upon the whole the Answer to this second Question may be clearly given, viz. That the Governour, neither with nor without the Council, has any Power given him, or by any Thing that appears, meant or intended to be given him by the King, exclusive of the Assembly, to erect a Court of Equity, or indeed any Court, of general Jurisdiction or establish Fees.

I come now to the third Question, viz. Whether (in Fact) according to (the Laws of England, or) any Law of this Province, or any Letters Patent, or Ordinance now extant here, or that ever was since the Revolution, there has been a Court of Exchequer erected, or meant and intended to be erected ( considered as a Court of Equity ) in this Province.

Before I entered upon these Questions, I laid it down as a Thing taken proconfesso, That by the Establishment of the Supream Court (whether this Establishment was by Act of Assembly or by Ordinance of the Governour and Council) there was but one Supream Court (or one Court, and not three Courts) established; which one Court was to have Cognizance of all Pleas civil, criminal and mixt, as fully to all Intents and Purposes whatsoever as the Court of Kings-Bench, Common-Pleas and Exchequer within His Majesty's Kingdom of England have or ought to have. And notwithstanding the large and extensive Signification of these Words [have or ought to have, to all Intents and Purposes] made Use of by the Makers of the Acts and Ordinances, I have very much Reason to believe (having been very well acquainted with every Man of them that had or pretended to have any Knowledge of the Law) that very few (if any) of them had a sufficient Knowledge of the Court of Exchequer in England, or the Methods of Proceeding, in it, and that no more was meant and intended by them than to give the Supream Court here a Cognizance of all Matters, intended by them to be cognizable in this Court here, as fully to all Intents and Purposes, as each of the three Courts mentioned had in England, or ought to have had of Maeters cognizable by them there, or as fully as any one Court of Law could have here and no farther.

If the Words of the Act or Ordinances establishing this Court, are so to be understood as to erect an Exchequer Court, distinct from the other two; they are equally to be understood to erect three distinct Courts, viz, a Court of Kings Bench, a Court of Common-Pleas, and a Court of Exchequer, each of them with the same Powers and Jurisdictions, under the same numerical Judges, as fully to all Intents and Purposes whatsoever here, as each of these mentioned Courts have in England, under different Judges there; which is absurd and impossible, and the Powers there given incompatible in the same Persons considered as Judges of three such distinct Courts: For, as Judges of the Common Pleas, they cannot be Judges of the Kings Bench. If they are Judges of the Kings Bench, their Power immediately determines as Judges of the Common Pleas. So that these two Courts cannot coexist under the same numerical Judges, for this see Cases in Point, Dyer 159. a pl. 34. Cro. Cha. Mich. 4th Cha. 9. Coke 118. Dyer was one of the Judges of the Court of Common Pleas, and whilst he was so, was made one of the Judges of the Court of Kings-Bench. And the Question was, Whether the Force and Effect [Page]of the first Letters Patent of the Justice of the common Bench were not gone and [...]ased by this new Patent? And agreed, that it was, for Reasons there given.

He takes Notice of a Man's having two several Authorities; and that a [...] common Pleas has been chief Baron of the Exchequer: But says [...] Cases vary from the Kings Bench. Afterwards in the Time of King Charles the First, when a like Thing happened to Sir George Coke, all the Judges agreed with the Opinion given in Dyer: One of the Reasons given, why the former Commission was determined and the Powers incompatible, was, That it was impertinent for a Man to reverse his own Judgment, as he would in case of Error brought in Banco Regis. And in all cases of Error, none of the Judges who gave the Judgment (notwithstanding a supposed Instance to the contrary) are, by the Laws and Practice of England, to have any Voice in the affirming or reversing of it. By the Statute of the 31st of Edward III. Chap. 12. the Lord Chancellor and Treasurer, with such Justices as they think fit, are to reverse Errors in the Exchequer, and the Barons of the Exchequer are to be called before them to give the Reasons of their Judgment. This is in the Law Court of Exchequer, where the Barons are Judges: For in the Equity Part the Lord Treasurer is one of the Judges himself. By the Stat. of 27 Eliz. Chap. 8th. If any Errors by the Court of Kings Bench, they are to be reform'd by the Judges of the common Pleas and Barons of the Exchequer. And, Writs of Error lye in the Kings Bench, for any Error in the common Pleas.

This I think makes it plain beyond the Power of Contradiction, That there cannot be three Courts here, one of them with all the Powers of the Kings Bench, a second with all the Powers of the common Pleas, and a third with all the Powers of the Exchequer in England, coexisting under the same Judges, and consequently not one Court invested with three such distinct Powers here, as fully to all Intents and Purposes as each of the three mentioned have there: For each of the three Courts there under different Judges have Powers to some Intents and Purposes, which this Court, whether considered as three Courts, or one Court under the same Judges, cannot have: Therefore this Court must be understood to be but one Court, vested with all the Powers given or intended to be given it here, as full to all Intents and Purposes as the Courts mentioned are vested with the Powers in them; but was never intended to give the Supream Court here the several Powers and Jurisdictions of those three Courts as fully to every Intent and Purpose as each of the mentioned Courts have them in England, which no one Court of Law can have, especially in this Country.

The Courts of Kings Bench, common Pleas, and Exchequer in England are three distinct Courts, under three distinct Setts of Judges: And that of the Exchequer in England, whether proceeding in a course of Law, by the common Law, or of Equity, by Virtue of the Statute of the 33d of Henry VIII. Ch. 9th. before which Statute it is said, That Court had no Jurisdiction in Equity, yet in both cases it is a Court instituted for the sole Profit and Benefit of the King, and the Disposition and Management of the Kings Revenues are intirely under the Direction of that Court, but never was in any case under the Direction of ours: Therefore, if our Supream Court here has Jurisdiction to all Intents and purposes whatsoever, as the Court of Exchequer has in England or ought to have, and if the Words are to be taken in a different Sense from what I have explained them to mean, we ought to be very certain in what Sense these Words [Court of Exchequer] are to be taken, whether in that large and general Sense, in which they are understood in England to mean the Seven distinct Courts mentioned in the 4th Inst. 119. or in a more restrictive Sense, to mean some one or more of these Courts. And as I take it, that Sense is to be put upon those Words which the Makers of the Acts and [Page] Ordinances establishing this Court did intend should be put upon them; and what that Sense was, is best and with most Certainty to be found out from the Words of the Acts and from the Practice of this Court, immediately upon its Establishment, and from that Time to this. And first with respect to that [...] which these Word cannot be taken.

Whether the Court of Exchequer be considered as united with the Supream Court as one Branch of it under the same Judges? or, as a distinct Court under the same Judges; it cannot be t [...]t called in England, The Court of Exchequer Chamber, for all the Judges for Matter in Law: Because with us there are no Judges to consult; unless we take in all the Judges of what are called The Courts of common Pleas in the Counties, which some People would be very merry with. Nor can it be a Court of Exchequer Chamber for Errors in the court merry with. Nor a Court of Exchequer Chamber for Errors in the Kings Bench: Because in all cases of Error in our Supream Court (in any of its supposed Forms) they are to be reform'd by the Governour and Council, and always have been so. These are three of the seven restrictive Senses, and we are sure it can [...] be taken in none of these.

There remains other four, viz, a Court of Pleas, a Court of Accounts, a Court of Receipts, and a Court of Equity in the Exchequer Chamber.

With Respect to the Court of Accounts and Receipts, two of the four mentioned, it is plain from the constant Practice of having a Receiver General by Letters Patent, and accounting with an Auditor or his Deputy; from the constant Practice of disposing of all the Kings Revenue here by Warrants drawn by the Governour in Council. From the Instructions or Orders constantly given to the Governour of this Province, ‘not to permit any Clause whatsoever to be inserted in any Law for the levying of Money, or the Value of Money, whereby the same shall not be made lyable to be accounted for unto his Majesty in Great-Britain, and to the Commissioners of his Treasury, or high Treasurer for the Time being. And, That upon Pain of His Majesty's highest Displeasure, fair Books of Accounts be kept of all Receipts and Payments, and the Truth thereof attested upon Oath, and transmitted half-yearly, or oftner, to the Commissioners of the Treasury, or high Treasurer for the Time being.’ I say from all this it is very plain, that our Supream Court is neither the Court of Accounts, nor the Court of Receipts, nor ever had or every was intended to have any Thing to do any manner of Ways with the Disposition of the Kings Revenue; either as fully to all Intents and Purposes as the Kings Court of Exchequer in England had, or to any Intent and Purpose whatsoever.

We are got over five of the restrictive Senses in which we are sure the Words [Court of Exchequer] cannot be taken. There are but two left, viz. A Court of Pleas, (i. e.) a Court of Law, and a Court of Equity. But how it comes to be a Court of Equity, and a distinct Court from the Supream Court? Or, if not a distinct Court, it will be very difficult if not impossible to account, how the Supream Court came to have a Jurisdiction in a Course of Equity? since at none of the Times of the establishing of the Supream Court, whether by Acts of Assembly or by Ordinance, it was ever understood by the Makers of the Acts, or afterwards by the Makers of the Ordinances, or by any Body else, to be a Court of Equity. An Account of the several Times of the establishing this Court, and the Method by which it was done will set this Matter in a clear Light.

The first Assembly that I can find any Account of in this Province, began the 7th Day of October, 1683, and ended the 3d of November following. At this Time there was existing a Court, known by the Name of The general Court of Assizes, which was held annually: How this Court was established I do not know; but I am inclined to believe it was established by the Governour [Page] and Council, at the Time of the first setling of the Government, or very near that Time.

It appears by an Act of the General Assembly of this Province, past in the year 16 [...]4, by which this Court of Assises was disolv'd, that it was a Court of Equity, as well as Law: For it is provided by the said Act, That all Actions, Suites or Complaints now depending in the said Court of Assises, either by Bill, Plaint, Declaration, Appeal, Review, by Petition to the Governour and Council, or any other Ways or Means whatsoever, shall be ended, determined or finished by the high Court of Chancery. If this was a Court of Law as well as Equity, it was the only Court of a mixt Jurisdiction that I could learn ever existed in this Province.

In the first Assembly held in the Year 1683, an Act was pass'd, entituled, An Act to settle Courts of Justice; by which Act there was established a Court for Tryal of small Causes of 40 Shillings, and under. Another, for Tryal of Causes civil and criminal arising in each County, stiled, a Court of Sessions. A third called a Court of Oyer and Terminer, and general Goal Delvery. Which third Court is what we now call the Supream Court, tho' at that Time it was not known by that Name, and was established by the following Words, viz. ‘And that there may be no Defect of Justice, but that all and every the Inhabitants of this Province may have and enjoy all proper Ways and Means to recover and have their just Rights with the same, according to Law, Be it further enacted by the Authority aforesaid, That annually and every Year there shall be within the said Province, and in each respective County within this Province, within the same, a Court of Oyer and Terminer and general Goal delivery, which said Court shall have Power and Jurisdiction to hear, try and determine all Matters, Causes and Cases, capital, criminal or civil, and Causes tryable at common Law: In and to which Court all and every Person and Persons, whatsoever, shall or may, if they see meet, remove any Action or Suit, the Debts or Damages laid in such Action or Suit being five Pounds or upwards, or shall or may by Warrant, Writ of Error or Certiorary, remove out of any inferiour Court any Judgment, Information or Indictment there had or depending, and may correct Errors in Judgment, or reverse the same, if there be any just Cause for it. The Members of which Court shall be a Judge assisted with four Justices of the Peace of the County, who shall be commissionated for that Purpose. Then the Times and Places of Sitting of this Court is appointed, both at New-York and the several Counties of this Province. After this is a providing Clause in these Words, viz. Provided allways, And be it further enacted by the Authority aforesaid, That no Persons Right or Property shall be by this Court determined excepting where Matters of Fact are either acknowledged by the Parties, or Judgment be acknowledged or passes by the Defendants Default, for want of Plea or Answer, unless the Fact be found by the Verdict of twelve Men of the Neighbourhood, AS IT OUGHT OF RIGHT TO BE DONE BY THE LAW.’

After the setling this Court of Law, in which there is not the least Appearance or Colour of its having any Jurisdiction in a Course of Equity: The Act proceeds to Settle a Court of Equity, which it doth by the following Words, viz. ‘Be it further enacted by the Authority aforesaid, That there shall be a Court of Chancery within this Province, which said Court shall have Power to hear and determine MATTERS OF EQUITY, and shall be esteemed and accounted the supream Court of this Province. And be it further enacted, That the Governour and Council be the said Court of Chancery, and hold and keep the said Court. And the Governour may depute and nominate in his Stead a Chancellour, and be assisted with such other Persons as shall by him be thought fit and convenient, together with all necessary Clerks, and other Clerks as to the said Courts are needfull.’

[Page] This was an Act of the whole Legislature in this Province, the only legal Authority that could or can settle and establish Courts of general Jurisdiction (as I believe) in any Government, at least in any Government according to the Laws and Customs of England. This was a perpetual Act, by which there were Courts of Law, and a Court of Chancery for Tryals of Matters in Equity erected.

From the above Act, and the Paragraph quoted from the Act made in the Year 1684, dissolving the Court of Assises, it will appear clearly, without any Room for Doubt; first, that before this Act made in the Year 1683, and in all Probability, from the first Settlement of the Government till that Time, there was a Provision made for Administring Justice to the People in a Course of Equity as well as Law. Secondly, That by the Act in the Year 1683, [...] Provision was made for the same Purpose, and a Court of Chancery erect for Tryals of Matters in Equity. Thirdly, That the Court of Oyer and [...]miner neither had, nor was, by the Makers of the Law, intended to have, any Jurisdiction in a Couse of Equity. Fourthly, That after the Dissolution of the Court of Assises, the Court of Chancery, and no other, had the sole Jurisdiction in a Course of Equity, and was erected for that Purpose.

The Courts stood upon this Establishment from the Year 1683, till the Year 1691, and by an Assembly which began the 9th of April, in that Year, an Act was passed, entituled, An Act for Establishing Courts of Judicature, for the Ease and Benefit of each respective City Town and County within this Province. By which Act the supream Court of this Province was established upon the Foot it now stands and has stood since that Time with Respect to its Jurisdiction, and [...] Clause by which it was established is conceived in these Words, viz.

‘And that their Majesties Subjects inhabiting within this Province may [...] all the good, proper and just Ways and Means for the Securing and [...] their just Rights and Demands within the same: Be it further [...] and it is hereby enacted and ordained by the Authority aforesaid, That [...] shall be held and kept a supream Court of Judicature, which shall be [...] and constantly kept at the City of New-York, and not else where, at the several and respective Times hereafter mentioned. And that there be five Justices at least appointed and commissionated to hold the same Court, two whereof, together with one chief Justice, to be a Quorum. Which supream Court is hereby impowered and authorised to have Cognisance of all Pleas, civil criminal and mixed, as fully and amply, to all Intents and Purposes whatsoever, as the Courts of Kings Bench, common Pleas, and Exchequer within their Majesties Kingdom of England, have, or ought to have. In [...] to which supream Court, all and every Person and Persons whatsoever, shall or may, if they shall so see meet, commence or remove any Action or Suit, being upwards of Twenty Pounds, and not otherwise: Or shall or may by Warrant, Writ of Error, or Certiorari, remove out of any of the respective Courts of Mayor and Aldermen, Sessions, and common Pleas, any Judgment, Information, or Indictment there had and depending, and may correct Errors in Judgment, or reverse the same, if there be just Cause. Provided allways, That the Judgments removed shall be upwards of the Value of Twenty Pounds.’

‘And then the Act proceeds to appoint the Times of sitting, and that the Judges shall take the Oaths, &c. And then farther enacts, That all and every of the Justices and Judges of the several Courts before mentioned, be and are hereby sufficiently impowered to make, order and establish all such Rules and Orders, for the more orderly practising and proceeding in their said Courts, as fully and amply to all Intents and Purposes whatsoever, as all or any of the several Courts of the Kings Bench, common Pleas and Exechequer in England legally do.’

[Page] This Clause, in the Opinion of some, vests the Court with Jurisdiction in a course of Equity: For (say they) how can they make Rules as fully to [...] Intents and Purposes whatsoever, as the Exchequer in England can, unless the Court be vested with a Power to determine in a Course of Equity.

But whoever reads this Clause, may observe, that whatever Power is given by it, is equally given to the Justices or Judgees of the several Courts established by that Act; and if it can be construed to give any one of them a Jurisdiction in a Course of Equity, it equally gives it every one of them: And therefore can [...] no more, than that the Judges in these several Courts have a Power given them to make Rules and Orders in their several Courts here, for the more orderly practising and proceeding in them, as fully to all Intents, within the Limits of their several Jurisdictions here, as the Judges of the Kings Bench, common Pleas and Exchequer in England can do, in the Courts of which they are Judges there.

After this comes the same providing Clause with the Act that was made in the Year 1683, viz. ‘Provided allways, and be it further enacted by the Authority aforesaid, That no Persons Right or Property shall be by any of the aforesaid Courts determined, exept where Matters of Fact are either acknowledged, or passeth by the Defendants Fault for want of Plea or Answer, unless the Fact be formed by the Verdict of twelve Men of the Neighbourhood, AS IT OUGHT OF RIGHT TO BE DONE BY THE LAW.’—This shews that the Makers of this Act never meant or intended to give the supream Court hereby established, or any other of the aforesaid Courts, any Jurisdiction in a Course of Equity, but established another Court for that very Purpose by the following Words, viz. ‘Be it further enacted, &c. That there shall be a Court of Chancery within this Province, which said Court shall have power to hear and determine all Matters of Equity, and shall be esteemed and accounted the high Court of Chancery of this Province. And enacted by, &c. That the Governour and Council be the said high Court of Chancery, and hold and keep the said Court, and that the Governour may depute, nominate and appoint in his Stead a Chancellor, and be assisted with such other Persons of the Council as shall by him be thought convenient, together with all necessary Officers, Clerks and Registers as to the said high Court of Chancery are needful.’

It appears by the above Clause, that the Makers of it conceiv'd there was a Necessity of having a Court to determine Matters of Equity, and that they had not made a Provision for it by any of the Courts they had by that Act before established, and therefore establish a Court with Powers to hear and determine all Matters of Equity; which shews that the then Legislature intended to vest the Power of hearing and determing all Matters of Equity (above the vallue of 40 Shillings) solely in that Court which they call the high Court of Chancery, and in no other Court whatsoever, Expressio unius beingin this Act in this case Exclusio alterlue.

This Act was temporary, being for two Years, and in October 1692, about six Months before the Expiration of it, another was made with the same Title, and nearly the same Words, and as to the Chancery exactly the same: But as by the former Act the Supream Court was to sit once in six Months, and no oftener, at the City of New-York, so by this Act it was appointed to sit annually in each of the several Counties in the Province, and one of the Justices of the Court was to go the Circuits, and hold the supream Court, which by that Act was to be vagrant. And it was enacted, That out of the Office of the Supream Court at New-York, all Process shall issue out, under the Test of the chief Justice of the said Court, and to which Office all Returns shall be made.

[Page] This Act was also temporary, and to continue two Years after the Expiration of the former Act, and no longer.

The above Act expired by its own Limitation, and by an Act in the 7th of King William was reviv'd and continued for two Years after the Publication, and by an Act of Assembly passed in the Year 1697, farther continued for one Year longer, and after that expired by its own Limitation some Time in March or April, 1698. And since that Time no Act of Assembly has been made concerning that or any other Court, that I know of.

So that our Courts, both of Equity and Law, stood upon the Foundation of Acts of the Legislature from October 1683, till some Time in March or April 1698, being between fourteen and fifteen Years: And as no Words contained in any of the Acts before mentioned can (even by the most strain'd Construction) be interpreted to give the supream Court any Jurisdiction to determine Causes in a Course of Equity. So the constant Practice during all that Time of determining Matters of Equity in the high Court of Chancery only, and Matters of Law (and not Equity) in the supream Court, shews that neither the Legislature nor any the Practisers ever understood the supream Court to have any Jurisdiction to determine Matters in a Course of Equity.

Whether the Court of Oyer and Terminer and Court of Chancery established by the perpetual Acts of Assembly in the Year 1683, or the supream Court and Court of Chancery established, continued, or new modelled, or differently named, by the temporary Acts above mentioned, did expire with the Expiration of these temporary Acts, or did return to the Condition they were put in by the Act made in the Year 1683, or the supream Court did continue upon the Foot of it its own Adjournments entitled to the Name and Increase of Jurisdiction (if any such it had) given unto it by the said Acts, or whether it was of new established by the Ordinance of his Excellency the Earl of Bellomont and Council of the 15th of May, 1699, and has its Authority solely from the said Ordinance, and the Ordinances of the Governours and Councils made since that Time, are Questions that may admit of some Debate. This seems to be certain, that the noble Lord above mentioned from a Clause in His Majesty's Letters Patents giving him full Power and Authority, with the Advice and Consent of his Majesty's Council for this Province, ‘to erect, constitute and establish such and so many Courts of Judicature and publick Justice within the said Province and Territories depending thereon, as his said Excellency and Council shall think fit and necessary for the hearing and determing of all Causes as well criminal as civil, according to Law and Equity, and for awarding Execution thereupon, with all reasonable and necessary Powers, Authorities, Fees and Previledges belonging to them,’ would understand, that this Power was given to him and the Council, and to be put in Execution by them exclusive of the Assembly; and both he and the succeeding Governours conceived that the Assemblies had nothing to do to intermedle in the erecting Courts or establishing Fees, every such Attempt by them being deemed a flying in the Face of his Majesty's Prerogative, and accordingly that noble Lord and his Council, by Virtue of a Power which they conceived to be solely in themselves, exclusive of the Assembly, made an Ordinance, for the establishing Courts of Judicature, with the same Title and pretty nigh in the same Words of the Acts made in the Years 1691, and 1692, excepting that Part relating to the Chancery, about which nothing was mentioned in that Ordinance. But how exorbitant, illegal and groundless such a Pretence was I have already sh [...]wn and need not repeat. So that as I take it, the Courts neither were nor could be established by that or any other Ordinance, made by him or any of his Successors, but stood solely upon the Acts of Assembly that first established them, and upon their own Adjournments and vested with such [Page] Power and only such as was by the said Act or Acts given them, and did not fall or discontinue by the Expiration of any of the temporary Acts: For according to the Opinion of the Judges in a Case referr'd to them by the privy Council in the Time of King Charles II. relating to a perpetual and temperary Act of Assembly made in the Island of Jamaica, Raymond 397. th [...]se temperary Acts did at most but suspend the perpetual Act, during the Time of their Continuance, and after their Expiration were as if they never had been made.

If this perpetual Law was in Force and resum'd its Vigour upon the Expiration of the temporary Acts above mentioned (as it did if the Opinion of the Judges above referr'd to be Law) then I would ask, 1. whether the Ordinance of the Governour and Council establishing a Court of Chancery and [...] the Power of judging solely in the Governour, when the Act of Assembly had placed it joyntly in the Governour and Council, or the Ordinance for the establishing Courts of Justice, either in the same or a different manner, was not in that Governour and Council a taking upon themselves not only a Power to dispence with the Laws, but a Legislative Power to controle, abrogate and repeal an Act of Assembly, and set up an Ordinance of Governour and Council in its Stead. And 2. Whether this was Governing according to established and known Laws not repugnant but as near as may be agreeable to the Laws of England? The Answer is easy.

Whether this Ordinance or any other, did, or did not, establish the Courts, is not very material to the Matter now in Question, which is not, whether there is or is not a Court established? or how established? but whether this Court, which is confessed to have existed now nigh this 50 Years, has a Jurisdiction to determine Causes in a Course of Equity. That it had not any such Jurisdiction, by its first or any other of its Establishments, by any Acts of the Legislature, nor was intended to have it, nor excercised any such at any Time during the Continuance of these Acts, I think has been clearly and unanswerably proved; and it is a Matter of Fact incontestably true, That from the Time of its first Establishment, till the bringing of these Suits, this Court never exercised or was possesseed of any such Jurisdiction, or ever pretended to it: And if the Governours and Councils who made these Ordinances had, at the Time of making of them, intended or understood that by these Ordinances, a Court of Fquity, either joyn'd with, or distinct from the supream Court, was erected: It is not to be imagined, that they did not know what they intended, and that the Practisers and People of this Province should not in all that Time have made any Application to this same Court in a Course of Equity, but constantly have made their Application to the Court of Chancery, as the only Court of Equity during all that Time existing; and that in the Hands of a Governour, in whose Hands no Body was fond of having of it, and most People thought was lodged there contrary to Law.

This makes it clear, that in fact there never was, nor never was intended to be erected, any Court of Exchequer ( considered as a Court of Equity ) in this Province, by any Act of Assembly, Letters Patent or Ordinance, that now are, or ever were extant since the Revolution, and therefore no such Court existing.

The 4th Question is, whether any less or other Authority than that of the whole Legistature can (according to the Laws and Customs of England) erect so Court of Equity or establish Fees?

By the Answer to the first Question, and the Authorities there eited, it doth appear, That according to the Laws, Statutes and Customs of England, (the only Rules by which we are to judge) no less or other Authority than that of the whole Legislature can erect a Court of Equity, or establish Fees. And therefore upon the whole it seems plain to me, that we neither have, or ever had, or ever were intentended to have, any Jurisdiction in a Course of [Page] Equity; nor can such a Jurisdiction by any Letters Patent or Ordinance, not founded on an Act of the Legislature, be given. And as I take it the giving of a new Jurisdiction in Equity by Letters Patent to an old Court, that never had such Jurisdiction before, or Erecting a new Court of Equity by Letters Patent or Ordinance of the Governour and Council, without Assent of the Legislature, are equally unlawful, and not a sufficient Warrant to justify this Court to proceed in a Course of Equity. And therefore by the Grace of God, I, as chief Justice of this Province, shall not pay any Obedience to them in that Point.

THis, Sir, is the Copy of the Paper I read in Court, and the Substance of what I said besides on that Head, as far as I can charge my Memory: I have no Reason to expect that either this or any Thing else I can say, will be at all gratefull or have any weight with your Excellency, after the Answer I receiv'd to a Message I did my self the Honour to send to you concerning an Ordinance you were about making for Establishing a Court of Equity, in the supream Court, as being in my Opinion, contrary to Law, and which I desired might be delayed till I could be heard on that Head: I thought my self within the Duty of my Office, in sending this Message, and I hope, do not flatter my self in thinking, I shall be justified in it by your Superiors as well as mine: The answer your Excellency was pleased to send by Mr. Joseph Warrel, was, that I need not give my selfe any Trouble about that Affair: That you would neither recieve a Visit or any Message from me: That you could neither rely upon my Integrity nor depend upon my Judgment or Opinion: That you thought me a Person not at all fit to be trusted with any Concernes relating to the King. that ever since your Comming to the Government, I had treated you both as to your own Person and as the King's Representative, with Slight, Rudenesse, and Impertinence: That you did not desire to see or heare any farther of or from me. I am heartily sorry, Sir, for your own sake as well as that of the Publick, that the King's Representative should be mov'd to so great a degree of Warmth as appears by this Answer which I think could proceed from no other Reason but my giving my Opinion in a Court of which I was a Judge on a Point of Law that came before me, and, in which I might be innocently enough mistaken (tho' I think I am not) for Judges are no more infallible, than their Superiors are impeccable: But if Judges are to be intimidated so as not to dare to give any Opinion but what is pleasing to a Governour, and agreable to his private Views the People of this Province, who are verry much concern'd both with Respect to their Lives and Fortunes in the Freedom and Independency of those who are to Judge of them, may possibly not think themselves so secure in either of them as the Laws and his Majestie intends they should be. I never had the Houour to be above Six times in your Company in my Life; One of these Times was when I delivered the Publick Seales of the Province of New-Jersie to you on your comming to that Government; another on one of the publick Dayes to drink the Kings Health; a third at your Desire to wait on my Lord Augustus Fitz-Roy with the Body of the Law, to tell him we were glad to see him at New-York: and Except the first Time, never was above a quarter of an Hour together in your Company at any one Time; and all the words that Ever I spoke to you except at that first Time may be containd in a Quarto Side of Paper. I might possibly have been impertinent, for old Men are too often so; but, as to treating you with Rudeness and disrespect either in your Publick or private Capacity, it is what I cannot accuse my self of doing, or intending to do, at any of the Times I was with You. If a Bow awkwardly made, or any Thing of that Kind, or some Defect in the Ceremonial of[Page]addressing you, has occasioned that Remark, I beg it may be attributed to the Want of a Court and polite Education, or to any Thing else rather than the Want of Respect to his Majesty's Representative.

As to my Integrity, I have given You no Occasion to call it in Question. I have been in this Office allmost Twenty Years, my Hands were never foul'd with a Bribe; nor am I conscious to my self, that Power or Poverty hath been able to induce me to be partial in the Favour of either of them. And as I have no Reason to expect any Favour from you, so I am neither afraid nor ashamed to stand the Test of the strictest Inquiry you can make, concerning my Conduct. I have served the Publick faithfully and honestly, according to the best of my Knowledge; and dare and do appeale to them for my Justification: And am

SIR,

Your Excellency's most humble Servant LEWIS MORRIS.

§

§

NEW-YORK, Printed and sold by John Peter Zenger, in Smith Street, 1733.

Information about this book

Title statement

The opinion and argument of the chief justice of the province of New-York concerning the jurisdiction of the Supream Court of the said province, to determine causes in a course of equity.

Morris, Lewis, 1671-1746.

Publication

Publisher

Text Creation Partnership,

Place of publication

Ann Arbor, MI :

Date

2005-03.

ID [DLPS]

N03076

ID [TCP]

N03076

ID [STC]

Evans 3701

ID [NOTIS]

APY0184

ID [IMAGE-SET]

3701

ID [EVANS-CITATION]

99027224

Availability

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal. The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission.

Series

Early American Imprints, 1639-1800 ; no. 3701.

Notes

(Evans-TCP ; no. N03076)

Transcribed from: (Readex Archive of Americana ; Early American Imprints, series I ; image set 3701)

Images scanned from Readex microprint and microform: (Early American imprints. First series ; no. 3701)

Source

— The opinion and argument of the chief justice of the province of New-York concerning the jurisdiction of the Supream Court of the said province, to determine causes in a course of equity., Morris, Lewis, 1671-1746., Van Dam, Rip, ca. 1660-1749., New York (State). Governor (1732-1736 : Cosby).. The second edition corrected and amended..

Extent

15, [1] p. ; 29 cm. (fol.)

Printed and sold by John Peter Zenger, in Smith Street,,. New-York, :: 1733.. (Addressed to Gov. William Cosby, concerning the case of Rip Van Dam.) (Caption title.) (Signed: Your Excellency's most humble servant Lewis Morris.) (Imprint from colophon.)

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