3rd. The Chief Justice instanced the manner of appointing the Lord High Chancellor of England as another argument against the Governor's right. That officer was expressly named by the king, had the great seal delivered to him and took an oath faithfully to discharge the duties of the position. The Governor had not been expressly called by the Sovereign to act as Chancellor, had received no special commission, had taken no oath of office, and no great seal had been delivered to him. True, he had received a seal, but it was only the public seal of the province, like a corporation seal, not a great seal like that given to the Chancellor, in England, used for many purposes entirely foreign to a Court of Equity. He then proceeded to state some historical facts, instancing the case of Sir Nicholas Bacon, Lord Keeper of the Great Seal, in Elizabeth's time, who had omitted to take a special grant to hear causes in the Court of Chancery. To remedy this defect, a commission was issued to him by the Queen, giving him full authority to hear causes in the Equity tribunal and making special provision that his act should have the same authority and be as effectual as though he had been Lord High Chancellor. Not satisfied with that, Sir Nicholas required an act of Parliament to be passed declaring that the Lord Keeper had the same jurisdiction as the Lord High Chancellor.

The Chief Justice also referred to some circumstances occurring in the history of the Island of Barbadoes, in the early part of the 17th century. The Governor and Council of that Island had been in the habit of hearing and determining causes as a Court of Equity. Complaints of their proceedings were made to the King's Council, in England, and on the 12th of October, 1720, that body declared that the Barbadoes authorities had exceeded the bounds of their jurisdiction; "that the proper jurisdiction of the Court held before the Governor and Council in Barbadoes, in matters cognizable in any of the Courts of Common Law in that Island, is only to correct the errors and griev ances arising in the proceedings of the lower courts, and not to proceed originally in causes, except upon petitions in matters of equity. The argument closed with the expression of a hope that an application would be made to the King for a Court of Chancery, "as it is evident that such a court is equally as necessary as a Court of Error or appeal in the Province."

Mr. Ogden's argument was much more elaborate. He treated the case under these heads:

1. What were the original powers and business of the Court of Chancery, in England?

2.

How is a Court of Equity to be erected by the laws of England? 3. What was the Constitution of New Jersey in its first state of a civilized government (i. e.) while under the government of the Proprietors, as to the erecting of Courts in the Province, before it was divided into East and West Jersey?

4. Whether a Court of Equity was erected in both or either of the Divisions of New Jersey? When and how was the same established and who was the Judge of that Court?

5.

Whether his Majesty's Commission appointing a Captain General and Commander in Chief of New Jersey, or his royal "Instructions," issued therewith to all Governors or either of them, do give the Governor a power to hold a Court of Equity, or show his royal intention to be that the Governor should hold or be the Judge of such Court; or, do they show the contrary?

6.

Whether the public and great seal of the Province being committed to the Governor does vest him with sufficient authority to hold a Court of Equity in New Jersey? Without a choice or nomination of him by the Crown for that purpose?

7. When was a Court of Equity first held in New Jersey, after the currender of the Proprietor's government to the Crown? How was it established and who have been the Judges thereof since it was erected under the king's government?

Is the Chancellor or other Judge of a Court of Equity, &c., to take an oath of that office before he acts therein? Hath the Governors taken the oath of that office, and who is to administer such oath?

These questions, or, at least, most of them seem pertinent to the discussion and a proper answer to them would settle the matter. Mr. Ogden insisted that a Court of Equity, in England, could not be created by grant or commission, but, was the creature of an Act of Parliament, or might exist by prescription. He did not touch the question whether the King could, or could not, commission a Chancellor.

Discussing the third head, he referred to the Grants and Concessions of Berkeley and Carteret, and insisted that the Legislature was the only power in the colony which could create a Court of Chancery, according to that document.

To the fourth question he answered that the Assembly, in pursuance of its authority under the Grants and Concessions, in 1682-3, created the Court of Common Right, which court was vested with the jurisdiction to hear, try and determine "all matters, causes and cases, Capital,

Criminal or Civil Causes of Equity and causes triable at Common Law, which Court shall be the Superior Court of this Province."

In considering his fifth head, Mr. Ogden argued that neither by the "Instructions" to Lord Cornbury, nor, in his "Commissions," was he appointed Chancellor, but that he was especially directed not to displace any of the Judges whom he might find in the provinces, nor was he to execute their duties, either by himself or by his Deputy; and the whole tenor of the " Instructions" and of the "Commissions" negatived the idea that he should act as Chancellor.

His argument on this branch of the case was very elaborate in its examination of the "Instructions."

The sixth head, which refers to the great seal of the Province received quite an extended discussion, but his argument on this part of the case is summed up in this quotation from the "Instructions" from which he made many extracts: "that you shall and may, use and keep, the public seal of our Province of Nova Caesarea or New Jersey, for sealing all things whatsoever that pass the Great Seal of our Province under your government;" and the inference he drew from it was that this could not by any possibility vest in the Provincial Governor the right to act as Chancellor, and that the seal could not be used for so solemn a purpose as to give credit and force to the Decrees and Judgments of a court.

In answer to the seventh head, he gave the history of the Court in New Jersey and, beginning with Lord Cornbury, showed that all the Governors of New Jersey, except Ingoldsby, from Cornbury down to the time of Belcher, had taken the oath of office as Chancellor and had held courts of Equity; and that on several occasions, the Council expressed the opinion that the Governor was vested with the authority. of Chancellor.

The eighth question, Mr. Ogden answered in the affirmative, stating that, in his opinion, it needed no argument; that it was already settled by statute, and that any person exercising the office of Chancellor must take an oath such as is prescribed by law.

After presenting his opinion, Mr. Ogden made a further argument, giving other reasons for his decision, in which he referred to the ques tion whether the court had not been created by prescription, and whether the colonists, being Englishmen and subjects of Great Britain, were not entitled to all the courts of the mother country. As to prescription, his argument was that that principle could not apply, be

cause there was record proof of the fact that the Governors of New Jersey had acted as Chancellors, the principle of prescription only ap plying where there is no proof by record or otherwise than through the mere memory of man. In this connection he cited the records to which he referred. He admitted that the colonists, being Englishmen, were entitled to a Court of Chancery, but insisted that that fact gave no authority to the Governor to act as Chancellor.

Mr. Stockton's opinion, which was the first one read, Mr. Ogden's being the last, was exceedingly able and considered the question under two heads:

1st.

Whether a Court of Equity does exist in this Province? 2nd. Whether the Governor is Judge of it?

These were very pointed and direct questions and struck at the heart of the controversy. In answering the first, he insisted that the Court did exist, and for several reasons:

1st, because the Court with others owed its existence not to any act of Parliament, but to the Common Law and when British subjects came to this western country, they brought their courts with them and all that was necessary to give them life here, was for the king to commission officers for them; that the king himself could not, in the exercise of his royal prerogative, take away from any of his subjects the right to the enjoyment of these tribunals.

2nd, because many writs which have been issued continually in the province, and to which the subject has an indubitable right, cannot issue from any other source than from the Court of Chancery. Certain writs, said Mr. Stockton, are Original Writs, king's writs, granted to the subject as a matter of right, which can only issue out of the Court of Chancery and are tested in the king's name. These writs have issued in the colony and therefore there must have been a Court of Equity. This Court could not be confined simply to the issuing of writs; if it could exercise that jurisdiction, then it was open for the performance of every other act which could be done by the Court of Equity in England.

3rd. The law and practice of every other court of Westminster had been adopted in New Jersey, and a relief might be needed from the severity of the judgments of these other courts and that relief could only be obtained in the Court of Chancery;, it must exist here, right alongside of the courts whose strictness of rules requires a tribunal whose province it is to do equity for its suitors.

"To say the con

trary, would be to say that there was a right without any remedy, which is against a principle of law as well as the Common sense of mankind."

4th.

Because such court has actually exercised jurisdiction here from time immemorial, and therefore might exist solely from prescription. Mr. Stockton's argument upon this point was based upon certain historical facts relative to the Court, into the consideration of which he did not fully enter, citing, however, one upon which he seems to have particularly relied, and that was this: In the year 1698 the Legislature of New Jersey, in an act then passed, recognized the existence of a Court of Chancery. He did not state directly the words of the act; if he had done so, perhaps he could have strengthened his argument. The statute to which he referred is undoubtedly that entitled "An act declaring what are the rights and privileges of his Majesty's subjects, inhabiting within this Province of East and West Jersey." That act declares: "That the General Assembly of this Province shall constitute all Courts within the same, with their Limits, Powers and Jurisdictions, except the present High Court of Chancery." The same act again refers to this Court in this manner: "Judges of the Court of Common Right for the time being shall not be Judges of the High Court of Chancery."

These historical facts, Mr Stockton insisted were sufficient, to every legal intent, to found a prescription and then, he claimed, in that connection, that "There is no man living, it is presumed, who can point out a time since the Government of this colony began and show that then no Court of Chancery did exist here."

But, if a Court of Chancery had existed and still existed in the province, the main question: Was the Governor its Judge? still remained to be answered. Mr. Stockton, answering this, argued in the affirmative, that he was Chancellor from analogy. The king, before a court was created for the purpose, was vested with full power to hear appeals from inferior courts and moderate their severity. The Governor was in place of the sovereign, in the new colony, represented him, and must be invested with the same equitable jurisdiction. But the main reason given by the learned jurist for deciding that the Governor was Judge, was this: He was the keeper of the great seal of the province. In arguing this part of his opinion, Mr. Stockton met several objections which were made to the insistment that the Governor took the authority to exercise the office of Chancellor from the fact of his