The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo - American Legal History: Volume Ii History of Particular Topics
• Part I.: Sources
• 22.: Heinrich Brunner, the Sources of English Law 1
• 23.: Frederick William Maitland, Materials For the History of English Law 1
• 24.: William Searle Holdsworth, the Year Books 1
• 25.: Van Vechten Veeder, the English Reports, 1537-1865 1
• Appendix A: Edward Jenks, List of Principal Sources of Mediaeval European Law 1
• Supplementary List of References 1
• Appendix B: Paul Samuel Reinsch, a Short Bibliography of American Colonial Law 1
• 26.: The Commissioners, an Historical Survey of Ancient English Statutes 1
• Part II.: The Courts, Their Organization and Jurisdiction
• 27.: Frederick Andrew Inderwick, the Common Law Courts As Established Under Edward I 1
• 28.: George Spence, the History of the Court of Chancery 1
• 29.: William Searle Holdsworth, the Ecclesiastical Courts and Their Jurisdiction 1
• 30.: Thomas Lambert Mears, the History of the Admiralty Jurisdiction 1
• Part III.: Procedure
• 31.: James Bradley Thayer, the Older Modes of Trial 1
• 32.: Sir Frederick Pollock, the King’s Peace In the Middle Ages 1
• 33.: Hubert Hall, the Methods of the Royal Courts of Justice In the Fifteenth Century 1
• 34.: Sir James Fitzjames Stephen, Criminal Procedure From the Thirteenth to the Eighteenth Century 1
• 35.: Edward Jenks, the Story of the Habeas Corpus 1
• 36.: Frederick William Maitland, the History of the Register of Original Writs 1
• 37.: Luke Owen Price, an Action At Law In the Reign of Edward III. 1
• 38.: William Searle Holdsworth, the Development of Written and Oral Pleading 1
• 39.: Charles Mcguffey Hepburn, the Historical Development of Code Pleading In America and England 1
• 40.: John Henry Wigmore, a General Survey of the History of the Rules of Evidence 1
• Part IV.: Equity
• 41.: Oliver Wendell Homes, Early English Equity 1
• 42.: Luke Owen Price, Common Law and Conscience In the Ancient Court of Chancery 1
• 43.: James Barr Ames, the Origin of Uses and Trusts 1
• 44.: Christopher Columbus Langdell, the Development of Equity Pleading From Canon Law Procedure 1
• 45.: Solon Dyke Wilson, Courts of Chancery In the American Colonies 1
• 46.: Sidney George Fisher, the Administration of Equity Through Common Law Forms In Pennsylvania. 1

45.

COURTS OF CHANCERY IN THE AMERICAN COLONIES1

By Solon Dyke Wilson2

PRIOR to the Revolution courts of chancery had existed in some shape or other in every one of the thirteen colonies. An attempt will be made to give in the following pages a brief history of this tribunal in the days of our forefathers. In order to govern the affairs of Massachusetts colony it was necessary that a charter of incorporation should be obtained from the crown, in addition to the right of domain derived from the Plymouth Company by purchase. Charles I. finally conferred one very liberal in its terms. The freemen were to yearly choose a Governor, Deputy Governor, and eighteen Assistants; the general court was to meet quarterly, when freemen were to be admitted, officers chosen, and laws and orders not repugnant to the laws of England enacted.

The first Court of Assistants, composed of the Governor, Deputy Governor, and Assistants, was held at Charlestown August 23, 1630, rules of proceedings in all civil actions were established, and subordinate powers instituted for punishing offenders; it was agreed that the court should sit every third Thursday at the Governor’s house.

The first General Court of the company was held at Boston in October this same year.

“Until 1639 this court seems to have exercised the whole power, both legislative and judicial, of the colony, and to have held jurisdiction in civil and criminal matters.” For fifty-five years it exercised an extensive chancery jurisdiction as well.1

At the May Term, 1654, relief was prayed because of a mistake made in drawing up a bill of sale, and it was ordered that a “firme” deed be made to the rightful party.2

At the October term, 1665, an administrator petitioned to be allowed to redeem from mortgage a tract of land belonging to an estate in process of settlement. His request was granted.3

At the same session, in the matter of a charitable trust, a committee was appointed to inquire into the affairs of an educational institution and to report.4 Ten years later an executor was ordered to specifically perform his testator’s contract.5

The same term it was ordered that the lands belonging to Edmund Patch (“who did runne away with a married woman”) be sequestrated and sold for the benefit of his family.6

At the June term, 1677, Clement Goss humbly begged this court to null an instrument which he was induced to sign by his wife, friends, and by a wile. The court so ordered.7

8 Margaret Thatcher petitioned in October, 1679, for relief, setting forth that she had paid the heirs of her deceased husband a large sum for their interest in his estate, which she feared would be detained from her, etc. The case was referred to the County Court for Suffolk, with power to compel a discovery.

Want of remedy at law is assigned in several cases as the ground of jurisdiction in equity.9

In May, 1685, it was enacted that: “Whereas it is found by experience that in many cases and controversies betwixt parties wherein there is matter of apparent equity, there hath been no way provided for relief against the rigour of the common law but by application to the general court, where, by reason of the weighty affairs of the country of more publick concernment, particular persons have been detained, to their no small trouble and charge, and also great expense occasioned to the publick by the long attendance of so many persons as that court consists of, to hear and determine personal causes brought before them; for ease and redress whereof it is ordered and enacted by this court, that the magistrates of each County Court1 within this jurisdiction being annually chosen by the freemen, be, and hereby are, authorized and empowered as a court of chancery, upon bill of complaint, or information exhibited to them, containing matters of apparent equity, to grant summons or process, as in other cases is usual, briefly specifying the matter of complaint, to require the defendant’s appearance at a day and place assigned by the court to make answer thereunto; and also to grant summons for witnesses in behalf of either party, to examine parties and witnesses by interrogations, upon oath, proper to the case, if the judges see cause to require it; and if any party, being legally summoned, shall refuse or neglect to make his appearance and answer, the case shall proceed to hearing and issue, as is provided in cases at common law; and upon a full hearing and consideration of what shall be pleaded and presented as evidence in any such case, the court to make their decree and determination according to the rule in equity. Secundum equum et bonum, and to grant execution thereon; provided, always, that either party, plaintiff or defendant, who shall find himself aggrieved at the determination of the said County Court shall have liberty to make his appeal to the magistrates of the next Court of Assistants, giving in security for prosecution and the reasons of his appeal to the officer of the said County Court, as the law provides in other cases; where the judges of the former court may have liberty to allege and show the grounds and reasons of their determination, but shall not vote nor judge in the said Court of Assistants; and the judgment or decree of the said Court of Assistants, shall be a full and final issue and determination of all such cases, without any after review or appeal; unless, upon application made by either party to the General Court, the said court shall see meet to order a second hearing of the case at the County Court, with liberty of appeal as aforesaid, or, in any arduous and difficult cases, to admit a hearing and determination by the general court; and that a suitable oath be drawn up and agreed upon, to be administered to those who shall be judges; and in all cases of this nature brought to the County Court, the party complaining, before his bill be filed and process granted, shall give sufficient security, to the clerk of the court, to defray the necessary charges and attendance of the court.”1

“It was the last judicial tribunal created by the Legislature under the first charter.”2

The people of Massachusetts had long been reviewed by the home government with a jealous eye, they were accused of “extending their jurisdiction beyond the bounds of their patent, of evading the prerogative by coining money, of not allowing appeals to the King from their courts, and of obstructing the execution of the navigation and trade laws;”3 finally a “quo warranto” was issued, judgment was obtained in England and the charter abrogated.

After this the President or Governor and Council exercised chancery jurisdiction.4

December 19, 1686, Sir Edmund Andross arrived in Boston and the people were called upon to face the evils which attended with scarcely an exception, the sojourn of every royal Governor, that the history of this time refers to. He came as the Governor of the whole of New England, and at this time Plymouth colony, which continued weakly, became united to Massachusetts.5 Whatever the Governor’s faults may have been, indolence was not one of them, for he immediately set about ordering the affairs of the Province with but little regard for the rights or feelings of those he came to govern. March 30, 1687, an act was passed for the establishment of courts of judicature and public justice. A court of chancery was created, with the amplest powers, “to be holden by the Governor, or by such person as he should appoint chancellor, to be assisted by five or more of the Council, and this court was to sit from time to time as the Governor might appoint;” from this court appeals lay to the King in council, if the matter in controversy exceeded £300.1

His power was but of short duration, however, for on the accession of William and Mary, the good people of Boston arose in their might, and with “force and arms” sent their Governor a prisoner back to England.

A new charter was conferred upon the colonists in 1691; it was less liberal in its terms than the old one. The Governor, Deputy Governor, and Secretary were to be appointed by the Crown, and they in turn appointed the judiciary. The Governor could summon, dissolve, and prorogue, the Deputies when he chose. Under the new charter the General Court met for the first time, June 28, 1692. “An act was passed which provided for a High Court of Chancery” to be kept by the Governor, or such other person as he should appoint chancellor, to be assisted by eight or more of the Council. From their decisions appeals lay to the King in council, and full equity powers were delegated to the court. By the same act “chancery powers were extended to all the courts of the Province so far as to chancer the penalties of bonds when in suits before them.”2 The following year the constitution of the court was so far modified as to be held in Boston by three commissioners appointed by the Governor and Council, assisted by five masters in chancery. The court had the power of appointing its own register, and other necessary officers, and legal process was to be issued under the Province seal and to bear the teste of the three commissioners. The court held four terms in each year, but was to be always open to suitors.

The law did not, however, meet the approbation of the King, and no court appears to have been constituted under it. And in the act of 1699, re-establishing the courts of the Province, no provision is made for such a tribunal. By subsequent acts, limited chancery powers were delegated to the common law courts, such as chancering the penalties of bonds, granting conditional judgments in suits upon mortgages, and decreeing redemption of mortgaged estates upon the tender or performance of conditions within three years after entry made for the purposes of foreclosure. These were, substantially, all the provisions which related to the exercise of chancery powers by the courts under the Province charter. In 1701 Attorney-General Northey, in an opinion to Queen Anne, held that the General Court had no right to establish such a tribunal.1

The opinion of a great lawyer as to chancery jurisdiction in Massachusetts Bay, quoted by Governor Pownall whose term of office intervened between 1757-61, is as follows:—

“There is no court of chancery in the charter governments of New England, nor any court vested with power to determine cases in equity save only, that the justices of the inferior court and the justices of the superior court respectively have power to give relief, on mortgages, bonds, and other penalties contained in deeds. In all other chancery and equitable matters, both the crown and the subject are without redress. This introduced a practice of petitioning the legislative courts for relief, and prompted these courts to interpose their authority. These petitions became numerous—in order to give the greater dispatch to such business, the legislative courts transacted the same by orders or resolves, without the solemnity of passing acts for such purposes, and have further extended this power by resolves and orders beyond what a court of chancery ever attempted to decree, even to the suspending of public laws, which orders and resolves are not sent home for the royal assent.”

“The jurisdiction mentioned by Governor Pownall was conferred by provincial statute.”1

“Governor Bernard, in his answer on the 5th September, 1763, to the queries proposed by the Lords commissioners of trade and plantations said, it might have been made a question whether the Governor of this Province has not the power of chancellor delivered to him with the great seal as well as other royal Governors, but it is impracticable to set up such a claim now after a non-usage of seventy years, and after several Governors have in effect disclaimed it, by consenting to bills for establishing a court of chancery, which have been disallowed at home. A Court of Chancery is very much wanted here, many causes of consequence frequently happening in which no redress is to be had for want of a court of equity.”2 And so things continued until the breaking out of the war, when every thought save that of emancipation from the thraldom of the mother country was banished from every heart. Portsmouth and Dover, New Hampshire, were settled in 1623; and, although, it is said “that Exeter, a few years later (1638) formed a combination, chose rulers, and enacted laws in a public assembly,” and Portsmouth and Dover did something of the kind as well,3 it is certain no regular courts existed until the colony was united to Massachusetts in 1641.4

For the next thirty-eight years the laws of the latter colony prevailed largely in this. In 1679 this colony was made a royal Province with a President and Council, they constituted a court of record for administration of justice according to laws of England. So far as circumstances would permit, reserving a right of appeal to the King in council, for actions involving more than £50; they were among other things to issue writs within three months under the Province seal for calling an Assembly. “All laws were to be approved by the President and Council and then to remain in force till the King’s pleasure should be known, for which purpose they should be sent to England by the first ships.”1

“There can be no doubt that equity, as a great branch of the law of their native country, was brought over by the colonists and has always existed as a part of the common law in the broadest sense in New Hampshire.” . . . “Under the first royal Governor, Robert Mason was appointed chancellor of the Province, and among the early records are to be found bills in equity which were heard and decided before him.”2

In 1683 judgment was rendered against one Martin who had been treasurer during the previous administration, for moneys collected by him in his official capacity as treasurer; he petitioned Mason, as chancellor, setting forth that they had been disposed of according to the order of the late President and Council, and prayed that he be not obliged to bear the entire burden. A decree was issued ordering the surviving members of the Council, and the heirs of deceased members to each pay his respective proportion of the amount.3

In 1692 by “An act to provide courts of judicature,” it was decided 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 that the Governor and council shall constitute the said court.”4

“A new organization of the courts was made by the legislative Assembly in 1699;”5 but so far as chancery jurisdiction went, no material change was probably made, for an excellent authority has said: “It is not known that this law (referring to the enactment of 1692 in reference to a Court of Chancery) was ever repealed, and it is supposed that the Governor and Council, who composed the Court of Appeals, continued to exercise chancery powers till the Revolution.”6

Roger Williams obtained a grant of land from the Indians and founded Providence, Rhode Island, in 1636. It was immediately ordained by the inhabitants, in town meeting, that “we do promise to subject ourselves in active or passive obedience to all such orders or agreements as shall be made for public good for the body, in an orderly way, by the major assent of the present inhabitants, masters of families, incorporated together into a town fellowship, and such others as they shall admit unto them only in civil things.”1

Eight years after a charter was granted the Providence Plantation, which now consisted of four towns, Providence, Portsmouth, Newport, and Warwick, giving the people full power and authority to rule themselves, “and such others as shall hereafter inhabit within any part of the said tract of land, by such a form of civil government, as by voluntary consent of all, or the greater part of them, they shall find most suitable to their estate and condition, and for that end to make and ordain such civil laws and constitutions, and to inflict such punishment upon transgressors; and for execution thereof so to place and displace officers of justice as they or the greatest part of them shall, by free consent, agree unto. Provided, nevertheless, that the said laws, constitution, and punishments for the civil government of the said plantations be conformable to the laws of England, so far as the nature and constitution of the place will admit.”2

The first Colonial Assembly met at Portsmouth in May, 1647. A few laws, general in their terms, were passed at this session. Through misrepresentation and fraud William Coddington, in April, 1651, was appointed Governor of Connecticut and Rhode Island for life. This operated to dissolve the charter government. The island towns submitted to Coddington, while those on the main-land continued to carry things on under the old laws. Williams went to England to obtain, if possible, a new charter; permission was finally given for the colony to act under the old charter until the contentions arising out of Coddington’s appointment could be settled. In a short time, however, his commission was revoked and the fears of the people were dispelled.

The charter subsequently granted by Charles II. empowered the erection of a government to consist of Governor and Council, and House of Assembly, and the enactment of any laws not repugnant to those of England. The early years of this colony were full of faction and turbulence, and although a quo warranto was issued against this charter, no hearing ever took place, and it remained in force until the constitution. There is no doubt that equitable rights were acted upon by the General Assembly, for this tribunal took cognizance of all matters which could not be brought within the narrow jurisdiction of the inferior courts.1

The earliest allusion we find to a Court of Chancery in the history of this colony is in the records of an assembly held in October, 1705. It is as follows: “Whereas, it hath been represented to this Assembly, the great benefit that it might be, to have a Court of Chancery erected and settled in this her Majesty’s colony; but this Assembly, having considered the rules and methods for the way and proceedings in such a court, with the rules and constitutions thereof being of great weight and concernment, and requires mature consideration for orderly settling thereof, which we conceive cannot at present at this Assembly be settled. Therefore, be it enacted by the honorable, the Governor, with the House of Magistrates and Representatives convened in general assembly, and it is hereby enacted by the authority of the same, That the General Assembly at all times convened in general assembly, shall be a Court of Chancery as formerly it hath been, until such time as a more proper Court of Chancery may be conveniently erected and settled.”2 Six years afterward the Assembly made an enactment which reads as follows: “Whereupon, notwithstanding a former act of this colony which hath constituted and empowered the Assembly to be a Court of Chancery, we judge that they had no power or authority to make any such law, by reason we cannot find any precedent that the legislators or Parliament of Great Britain, after they had passed an act or law, took upon themselves the executive power or authority of constituting themselves a Court of Chancery, or any other court of judicature. Yet, notwithstanding, considering the power and authority of the General Assembly of this colony granted them, by, and in our royal charter, do we find that their power and authority is very large and copious as legislative, to make laws and constitute courts of judicature for the trial and decision of all matters and cases happening within this colony or government, as they shall judge proper, according to the constitution thereof, so as they be not repugnant, but as near as may be agreeable to the laws of England. Therefore, be it enacted by this present Assembly, and the authority thereof, and it is hereby enacted, that the act or law of this colony, which constitutes, authorizes, and empowers, the Assembly to be a Court of Chancery, shall be, and is hereby repealed, made null and void, and of none effect; and that no appeal from the Court of Tryals for the future, be granted, allowed, or brought before the Assembly of this Colony; . . . and also, that the Assembly of this Colony, according to, and by virtue of their power and authority afore recited, shall erect, set up, and establish, a regular Court of Chancery, within the government according to the methods and precedents of Great Britain, any act or acts, law or laws, in this government to the contrary hereof in anywise notwithstanding.” It was provided furthermore, however, that the Assembly would sit as a Court of Appeals, from decisions rendered in a proper court of Chancery, if appeal was made by way of petition.1 We have been unable to find any farther allusion to Courts of Chancery in this Colony for full thirty years. In 1741 a court, composed of five judges, was organized, with equity jurisdiction of matters that had previously been adjudicated by the General Assembly, and to also hear and determine appeals in personal actions from judgments of the superior court.2 Three years later it was enacted that “Whereas, it is found by experience that the trials of causes by the said Court of Equity is inconvenient and a great grievance to the inhabitants of this colony,” etc., etc., and the act of 1741 was repealed.1

Connecticut was first settled by emigrants from Massachusetts at Hartford, Weathersfield, and Windsor in 1635.

Three years later New Haven was founded by emigrants from London.

In accordance with the constitution adopted by the freemen of the three towns just referred to, in January, 1639, they again assembled at Hartford in April the same year. A Governor was appointed, and six prominent citizens chosen as magistrates; . . . representatives were elected, the first Assembly convened, and several laws passed.

For a year, New Haven had no constitution beyond a simple “covenant;” but increasing numbers made it necessary that laws should be enacted, so on the 4th of June, 1639, the freemen of the Colony convened in a large barn for that purpose. The proceedings opened with a sermon. “Upon full debate, with due and serious consideration it was agreed, concluded, and settled, as a fundamental law not to be disputed or questioned hereafter that the judicial laws of God as they were delivered by Moses and expounded in other parts of Scripture, so far as they are a fence to the moral law, and neither typical nor ceremonial, nor had reference to Canaan, shall be accounted of moral and binding equity and force, and as God shall help, shall be a constant direction for all proceedings here, and a general rule in all courts of justice how to judge betwixt party and party, and how to punish offenders, till the same may be branched out into particulars hereafter.”2

In due time laws more definite in their terms were found necessary, so early in 1642 still others were enacted.

“The texts of Scripture on which they were based were added to each law. . . . Up to this time (1643) the magistrates had possessed exclusive jurisdiction in hearing trials and in enforcing penalties, but now trials by jury were instituted.”3

A court called the Court of Magistrates composed of “all the magistrates for the whole jurisdiction” was also erected this year. It had jurisdiction of “weighty and capital cases,” and of all “appeals from subordinate plantation courts.”1 The various laws of the Colony were, by order of the General Court revised and digested, and from 1650 to 1686 remained the laws of the Province. They are known at the present day as the “Blue Laws” of Connecticut.2 In 1660 a Connecticut colony sent an agent to England to obtain, if possible, a charter. In this he was finally successful. It was very liberal, conferring upon the inhabitants the right to govern themselves as they thought fit, and to enact any laws not repugnant to the laws of England. This charter covered much territory belonging to other colonies, in this case a part of Massachusetts, Rhode Island, the New Netherlands, and the whole of New Haven which, finally against its will, but principally by reason of its weakness, was, in 1664, absorbed by Connecticut.

Although we do not find any reference to the exercise of chancery jurisdiction by the courts of these colonies till 1686, when Andross assumed the government of New England, there is no doubt that their general courts acted when occasion required as courts of equity. In March, 1686, was enacted a law erecting a Court of Chancery for this colony “to be holden by the Governor, or such person as he shall appoint to be Chancellor, assisted by five or more of the Council, who in this court have the same power and authority as masters in chancery in England have or ought to have; which court shall sit at such times and places as the Governor shall from time to time appoint, provided always that any person may appeal from any sentence or decree made or given in this court, unto his Majesty in council when the matter in difference shall exceed the real value and sum of £300, sterling, as in case of appeal from the Governor and Council is provided.”3

The General Assembly at Hartford, in May, 1724, appointed and empowered eight gentlemen “to hear and determine all matters of errour and equity that shall be brought by petition to the present General Assembly, and to cause their judgments to be executed effectually; any law, usage, or custom to the contrary notwithstanding.”1

In 1676 Sir Edmund Andross granted an injunction to stay execution on a judgment at law at the court of New Castle upon security being given, “and all proceedings, writing, and proofs to be transmitted to New York for final determination in equity.”2

The above must have been one of the few isolated cases, for we find twenty-four years later the Earl of Bellomont, the Governor, writing the Lords of Trade in these words: “There is a great want of a Court of Chancery here, but nobody here understands it rightly. I delay appointing one till the judge and attorney-general’s coming from England.”3 In 1701, he again wrote, as follows: “I am extremely importuned to erect a Court of Chancery, many people being liked to be ruined for want of one.”4 In February the same year the Lords of Trade directed him to erect such a tribunal.5 In a letter from Lieutenant-Governor Naufau (the Governor having died), dated January 9, 1701, it was said, that the Court of Chancery was to be holden the first Thursday in August thereafter, and so monthly.6 Nothing more of importance is to be found bearing upon the subject until the administration of Governor Hunter, which began in 1711. May 7th, that year, he wrote the Lords of Trade, setting forth the necessity of a Court of Chancery, and begging their directions. They replied June 9th, that under his commission he was empowered to establish such courts as he thought fit.7 January 1, 1712, Hunter wrote as follows: “The country here, in general, groaned for a Court of Chancery which had been discontinued for some time before my arrival in these parts.” . . . “I gave a public notification of that court being opened, and the House of Representatives, in their angry mood, resolved that the erecting of such a court without their consent was against law,” etc.1 The Governor claimed the sole right of acting as chancellor, by reason of having custody of the seal. The people, suspicious of the intentions of the home government, were solicitous lest their rights should not in some way be encroached upon. The fees of this court were exorbitant, causes were delayed, and great abuses arose in many directions, particularly in the manner of the collection of quitrents.2

“The administration of Governor Burnett, which began September 20, 1720, gradually became unpopular owing principally to decrees which he made in chancery contrary to law.” . . . “The Assembly became disaffected to him.” It resolved that the erecting or exercising a Court of Chancery in the Province without the consent of the Assembly was contrary to the laws of England, and subversive of the rights of the subjects.

It was also resolved that it would at its next session pass a law declaring all the decrees and proceedings of said court illegal, null, and void; and that it would take into consideration whether such a court be necessary or not, and in whom the jurisdiction ought to be vested. Mr. Burnett no sooner heard of their resolutions than he called the members before him and dissolved the Assembly.3

Governor Montgomery died July 1, 1731. The government devolved upon Rip Van Dam, the President of the Council. “He was opposed to Courts of Chancery, and refused to take the oath of chancellor notwithstanding instructions from the home government to do so, as no other court could enforce the collection of quit-rents, it will be seen that the people had good cause to side with him. Although Colonel William Cosby was immediately appointed Montgomery’s successor, he did not arrive in this country for thirteen months. Van Dam had received the salary during the time he was in the chair.” Cosby brought with him the King’s order for an equal division of the salary, emoluments, and perquisites; Van Dam was willing to divide the salary, but not the emoluments and perquisites. He knew that Cosby, while in England, had received large amounts for pretended services. This the Governor refused to divide, although Van Dam demanded it, and refused to refund any portion of his salary unless he did so.1 Cosby brought suit against Van Dam before the justices of the Supreme Court as Barons of the Exchequer; he would not proceed at the common law, for he had good reason to expect a plea in set-off, as well as a verdict of a jury; neither could he proceed in a Court of Chancery, for, according to the doctrine of the court party, he was chancellor and would thus sit in judgment on his own case. He felt very safe in bringing suit in the Exchequer, as a majority of the judges were his personal friends.

Van Dam began suit at common law against the Governor. His lawyers took exception to the jurisdiction of the Court of Exchequer, this plea was overruled, Chief Justice Morris dissenting.2 The people took up the cause of Van Dam, forming one party, while another was made up of the provincial officials and a few others. The press took up the matter, finally leading to the famous trial of Zenger, the proprietor of Zenger’s Journal, for libel, his sheet being the principal organ of the popular party. Cosby subsequently dropped his proceedings against Van Dam, he never recovered anything from him.3 In 1734 it was resolved by the House of Assembly that two well known lawyers, Messrs. Murray and Smith be heard in relation to the organization of courts of justice as numberless petitions had been presented deploring the condition of the judiciary. The former maintained in his address that no court of equity could be erected in any of the Colonies by act of the Crown. And the latter that it was of original jurisdiction, and that the Colony was entitled to the same as an essential branch of English liberty.1

Again in 1735, the Assembly resolved that the Court of Chancery, under the exercise of a Governor without consent of the General Assembly, “is contrary to law, unwarrantable, and of dangerous consequence to the liberties and properties of the people.”2 In 1756 Governor Hardy acted as chancellor.3

Although the animosity of the people with regard to this tribunal did not decrease during the remainder of New York’s provincial history, the court continued to sit in a desultory way, but transacted very little business.

Charles II. granted to his brother, the Duke of York, March 12, 1663-4, an immense territory in North America.4 The same year a portion of this domain, comprising within its bounds the whole of the present State of New Jersey, was conveyed to Lords Berkely and Cartaret.5 They became rulers as well as owners of the country.6

The first constitution of the Province was signed by the proprietors February 10, 1664, and continued in force until 1676.

The government was to consist of a Governor and Council appointed by the proprietors and an Assembly chosen by the people. They were empowered to enact such laws as they saw fit, so long as they did not conflict with those of England, or the interests of the Lords Proprietors.

At the first meeting of the legislative body (1668), all the principal towns in the Province were represented.7

At the second session dissensions arose because the Council insisted on sitting alone, rather than with the Assembly, where they could easily be out-voted. One thing led to another until finally all kindly feelings between the proprietors and people were obliterated, and after a number of years of confusion and discontent Berkely, disgusted, sold out to Fenwick and Byllenge, two Quakers. They mortgaged their interest and the mortgagees arranged with Cartaret to divide the Province into East and West New Jersey. The latter was given a very liberal form of government by its possessors. In 1682 Cartaret’s heirs sold their share (East New Jersey) to Penn and others; there were twenty-four proprietors in all. They were not allowed to govern it in peace, however, for soon they were obliged to surrender the government of the Colony to the Crown, retaining only the title to the soil. Shortly after, West New Jersey succumbed in like manner, and was obliged to accept the same terms. Fifteen years after, the colonies were reunited. In a letter from Lord Cornbury to the Lords of Trade, dated early in August, 1703, he said, after informing them of his having entered upon his duties as Governor of New Jersey: . . . “The first thing we proceeded upon, was to settle some courts, and in order to it, I asked the gentlemen of the Council what courts they had under their proprietary government; they said that their courts were never very regularly settled, but such as they were, it was under this regulation: first, they had a court for determining all causes under forty shillings, and that was by any one justice, and if either of the parties did not like the judgment of that justice he was at liberty to have a trial by jury, paying the charges of the first suit.” . . . “The next court they had was a quarterly court, where the justices of the peace determined all causes under £10, and they had a court which they called the Court of Common Right, where all causes both criminal and civil, were heard and determined, and to this court there lay an appeal from the quarterly courts.”

“This Court of Common Right consisted of the Governor and Council, and if any man thought himself aggrieved by the sentence of the Court of Common Right, then he might appeal to the Governor in Council. This was appealing from to the same persons, this being the account they gave me.”1

The Court of Common Right had, of course, jurisdiction in chancery.

In another letter by the same nobleman to the Lords Commissioners, dated May 7, 1711, he said, among other things: “In both plantations I have been pelted with petitions for a Court of Chancery; and I have been made acquainted with some cases which very much require such a court, there being no relief at common law, I had ordered the Committee of both Councils to form a scheme for such a court, but to no purpose; the trust of the seals they say constitute a chancellor, and unless the Governor can part with the seals there can be no chancellor but himself. I have already more business than I can attend to, besides I am very ignorant in law matters, having never in my life been concerned in any one suit. So, I earnestly beg your lordships’ directions as to that court.”1 In the reply to this letter he was informed that under his commission he was empowered to erect, with the advice and consent of the Council, “such and so many courts of judicature and public justice as he and they shall think fit.”2 And we find it recorded one year later that “there is no Court of Chancery in the Province.”3

In 1676 the government of New York extended over the territory subsequently granted to William Penn, and as Governor Andross issued in that year an injunction to stay an execution,4 we can well say that at that early day, chancery jurisdiction was exercised when occasion required in the Province, to which we shall now give our attention. Until 1684 the Council, when called upon, no doubt exercised equitable jurisdiction.5 A bill was passed by the Assembly at Philadelphia, January 26th that year, erecting a Provincial Court, to consist of five judges, to go two circuits yearly.6

The next month it was enacted that “every court of justice shall be a court of equity as well as of law and that there should be ‘a Provincial Court of quarter sessions’ ” . . . “to try all criminals and titles to lands, and to be a court of equity, and to decide all differences upon appeals from the County Courts.”7

Penn commissioned the judges of this court six months afterward.

In 1686 the Council appointed judges for the next Provincial Court, making them judges of equity as well as of law.1 It is evident that the people had not a very clear conception of the extent of the equitable powers of these courts, for in the following year the Assembly desired the Council to explain “how far the County Quarter Sessions may be judges of equity as well as law; and if after adjudgment at law, whether the same court hath power to resolve itself into a court of equity, and to mitigate, alter, or reverse the judgment.”2 The Council answered that the law erecting the court “doth supply and answer all occasions of appeal, and is a plain rule to proceed by,” which answer could not have shed much light on the subject inquired about. An act was passed in 1690 providing, among other things, that the “County Courts shall be Courts of Equity, for the hearing and determining all causes cognizable in said court involving less than £10 sterling.”3

In 1701 was passed an act “for establishing courts of judicature in this Province and counties annexed,” the judges of the Common Pleas were given full power “to hear and decree all such matters and causes of equity as should come before them, wherein the proceeding shall be by bill and answer, with such other pleadings as are necessary in Chancery Courts and proper in these parts, with power also to the said justices to force obedience to their decrees in equity by imprisonment or sequestration of lands as the case may require.”4

Two years after it was complained that, to the great oppression of the people, no courts of equity had been held in pursuance of this law. This same year, however, it was repealed by the Queen in council, and no other act providing for a Court of Equity was passed until 1710, when in an act for “establishing courts of judicature, it was provided that there shall be a Court of Equity held by the judges of the respective County Courts of Common Pleas, four times a year and at the respective places, and near the said times the said Courts of Common Pleas are held, in every county of this Province observing as near as may be the rules and practice of the High Court of Chancery in Breat Britain.”1 It was provided in this act that no cause should be determined in equity when there was a remedy at common law or by the laws of the Province, and that when matters of fact should arise on the hearing of any cause, the court should first bring them to issue and trial before the Common Pleas, before proceeding to decree in equity.

This statute was abolished within three years on the ground that it would tend to make proceedings in equity very dilatory, and unnecessarily increase the business of the common law courts.

In 1715 an act was passed “for erecting a supreme or provincial court of law and equity in this Province,” but this act was repealed in 1719. “The colonists had by the terms of their charter five years within which to transmit their laws for approval. And their custom was to enact laws and act under them as long as they decently could, and then send them to England well knowing that they would be repealed;” then they would make new laws as near like them as they dared which in time were sent to the old country, and annulled and so on.2 That is why so long time elapsed between the organization and abolishment of the various courts having chancery jurisdiction that we have referred to.

Governor Keith entered upon his duties in 1717. June 8th, 1720, was read before the Council a resolution of the House of Representatives which ran as follows:—

“Resolved, That considering the present circumstances of this Province, this House is of opinion, that for the present the Governor be desired to open and hold a Court of Equity for this Province, with the assistance of such of his Council as he shall think fit, except such as have heard the same cause in any inferior court.”

August 6th, 1720, it was resolved at a Council held at Philadelphia that the Governor might “safely comply with the desire of the representatives of the freemen of the Province,” . . . “and that the holding of such a Court of Chancery in the manner aforesaid, may be of great service to the inhabitants of this colony, and appears agreeable to the practice which has been approved of in the neighboring governments.”

The Governor, while regretting his want of experience in judicial affairs expressed a willingness to act in the capacity of chancellor, provided he received due assistance from his Council. “It was finally agreed that no decree should be made but by the Governor as chancellor, with the assistance of two or more of his six oldest counselors who might also be employed as masters in chancery.1 August 10, 1720, appeared the Governor’s proclamation; it recited that2 Courts of Chancery or Equity, though absolutely necessary in the administration of justice—for mitigating in many cases, the rigor of the laws whose judgments are tied down to fixed and unalterable rules, and for opening a way to the right and equity of a cause, for which the law cannot in all cases make sufficient provision, have, notwithstanding, been too seldom regularly held in this Province in such manner as the aggrieved subjects might obtain the relief which by such courts ought to be granted,” declared that the Governor with the assistance of the Council “proposed to hold a Court of Chancery or equity on the 25th of that month, from which date the said court will be and remain always open for the relief of the subject to hear and determine all such matters arising within this Province aforesaid as are cognizable before any Court of Chancery according to the laws and constitutions of that part of Great Britain called England.” The thanks of the student are due William Henry Rawle, Esq., of Philadelphia, for causing a search to be made for records shedding light upon the subject, among the archives of that State, for it resulted in the finding of the registrar’s book of Governor Keith’s Court of Chancery, and he is also under great obligations to the Law Academy, of Philadelphia, for printing the same as an appendix to the very able essay upon “Equity in Pennsylvania,” delivered by Mr. Rawle before that body February 11, 1868. One can here find a complete record of the doings of that tribunal.

Keith was superseded by Patrick Gordon in 1726. “Certain rules for the better regulation of this court and the speedier dispatch of business” were drawn up at this time.1 But for some years its business had been falling off. A spirit of discontent had begun to manifest itself, at the over-reachings of the provincial officials, for naturally enough the people were averse to being held amenable to courts of extensive jurisdiction composed entirely of persons in the proprietaries’ interest. While they did not object to the Court of Chancery as a tribunal, they did hold that the Assembly alone had the power to establish it.

The House of Representatives resolved, January 22d, 1735-6, “That whereas sundry petitions from a considerable number of the inhabitants of the respective counties of Philadelphia, Bucks, and Chester have been presented to this House and read, complaining that the holding a Court of Chancery as it is now used in this Province is contrary to our charter of privileges and may be attended with divers inconveniences; that, therefore, a message be sent to the Governor requesting him that he will be pleased to inform this house how the said Court of Chancery is constituted.” This resolution was laid before the Governor and Council the next day; the Governor ordered that transcripts of the enactments of the 8th of June and the 6th of August be sent down to the House for their information. The Council got up a vindication of the court to which the representatives replied, saying among other things, that no mere vote could erect a court of equity (referring to the resolutions of June 8th, 1720), and that it could be done only by act of Assembly.2 The Governor continued to act as chancellor for a few months, when he died. No successor has ever attempted to exercise chancery powers.

Delaware was incorporated into the domain of the Duke of York in 1663, and was governed by the laws of New York until 1682, when it passed into the hands of Penn and became subject to the laws of the Province of Pennsylvania.

The charter of this colony provided that all laws should be enacted by the proprietary “by and with the advice, consent, and approbation of the freemen of the Province, or of their delegates and deputies,” so long as they did not interfere with the fundamental rights of the people and were consistent with the common law of England. As in all the provinces the General Assembly consisted of two branches, the Upper House, composed of the Council, elected by the proprietary, and the Lower House of Delegates elected by the people. The former was a marked aristocratic body.1 “Under the proprietary government the chancellor of the Province was sometimes constituted by a formal commission from the Lord Proprietor,” but most usually, as it would seem, by a delivery of the great seals by the Lord Proprietor in person only, or in the presence of the Council. The Governor for the time being was, in several instances, by the same commission, also constituted chancellor and keeper of the great seal of the Province.2

“The first provincial Governor, by his commission bearing date on the 15th of April, 1637, was constituted Governor, Lieutenant-General, Chief Captain and Commander, as well by sea as by land, and also Chancellor, Chief Justice, and Chief Magistrate within the Province.”3

It was enacted in 1639 that all matters and causes whatsoever determinable in the High Court of Chancery in England shall, or may be finally heard and determined within the province by and before the chancellor of this province and Council of State for the time being. The Court of Chancery hereby erected, to have the same form of proceedings as the Court of Chancery in England. When acting as chancellor the Governor had authority to call in the assistance of the Council for their advice “upon all occasions as he shall see cause.”4 In Maryland, prior to the Revolution, the Governor sat alone as chancellor, from whose decision, by act of Assembly, an appeal lay to the Governor and Council sitting as a Court of Appeals. Defeated suitors could also appeal from the highest Colonial Court of Appeals to the King in council. In a case in the Maryland Court of Chancery, upon a petition by the defendant praying an appeal to the King, the prayer was, on the 1st of March, 1738, rejected. “The said prayer being” (as it was said) “contrary to his Majesty’s instructions, to grant an appeal to his Majesty from any other court, but from the Court of Appeals, which is the supreme court of this province, to which court he may appeal, and from thence to his Majesty, if he think fit.”1 “But, although for some time after the settlement of the country, the Governor could do no act as chancellor, but as a court, sitting with his assistants,” it is said in a petition in the case of Nicholas Painter and wife against Samuel Lane in chancery, addressed to the Lord Proprietor in June, 1681, “that the Court of Chancery is, and ought to be always, open as to the proceedings therein; but your lordship having not yet empowered your chancellor as chief justice of your said court to answer petitions or make orders touching the proceedings, as is used in England, without a full court of four at least, your petitioners are therefore necessitated to apply themselves to your lordship, and to humbly pray that your lordship would please to order that the defendant may put in his answer by a certain day,” etc., “which was accordingly ordered by the Lord Proprietor himself.”2

“But it appears that William Holland was, by a commission from the Lord Proprietor, under his great seal at arms, bearing date on the 27th of February, 1719, attested by his Governor, constituted chancellor of the province, with full power to do, perform, hear, and determine all such matters and things as to the office of chancellor of right belonged or appertained. After which the chancellor of Maryland always sat as sole judge, without assistants; and his court was thenceforward, in all respects, as accessible for all persons as the Chancery Court of England.”

“During the short time that the government of the Province was taken immediately into the hands of the King, it does not appear how the chancellor was appointed, although it seems to have been most usual to constitute the same person, both Governor and chancellor, as in the case of John Hart, who was both. Yet it was not always done, for it appears that different persons were sometimes appointed to fill each office; but however that might have been, it is certain that the two offices were always considered as being entirely separate and distinct in their nature.”1

“It appears that Robert Eden, the last provincial Governor of Maryland, . . . was commissioned, with the approbation of the King by the Proprietor, which commission he produced to the Provincial Council, who thereupon administered to him the oaths appointed to be taken by the Governor. Immediately after which his predecessor, Horatio Sharpe, delivered to him the great seal of the Province, whereupon the oath of chancellor was administered to him, by the members of the Council then present; all of which was entered of record in the book of the Council proceedings.”2

“Before the Revolution the Lord Proprietor was the owner, in his individual and private capacity, of all the land and territory in the province. He sold or gave it away at pleasure. Not long after the settlement of the Province was commenced, a land office was established, through which any person might obtain a title for any vacant land on complying with the established conditions and regulations. As the settlement extended and the sales of land were multiplied, numerous controversies arose as to the formality and correctness of the incipient and original titles thus obtained from the proprietary.”

“For the purpose of determining these controversies, a judge of the land office was appointed about the year 1680, and the chancellor of the Province was charged with the determination of those matters, either as judge or as assistant of the judge of the land office.”3

For years after the settlement of Virginia, all causes were adjudicated by the Governor and Council sitting as a General Court, so called because it attended to all kinds of business from all parts of the colony. This court sat originally twice a year at Jamestown, and subsequently every three months. It was never commissioned, but grew up out of the necessities of the people.1

This was the case up to the time of the sitting of the first House of Burgesses in July, 1619. Causes had grown so numerous, however, that it was now necessary to erect courts of inferior jurisdiction. So it was enacted that there should be monthly courts to have jurisdiction of all suits where the amount in controversy did not exceed the value of one hundred pounds of tobacco.2 This court consisted of eight or ten gentlemen receiving their commissions from the Governor.3

The jurisdiction of these courts was enlarged from time to time, and in March, 1642, it was enacted that they should be called county courts.4

In November, 1645, it was enacted that on account of the great distance of many settlements from Jamestown that the county courts should have jurisdiction of all causes in law and equity.5 Two years later (November, 1647,) a law was passed allowing appeals to the Assembly in all cases where the sum involved exceeded £10 or sixteen hundred pounds of tobacco, to settle new points of law, or when it appeared to the Assembly that the judgment of the inferior court was questionable.6

There was no material change in the jurisdiction of the various inferior courts of this colony as regards chancery matters for the next hundred years, so far as can be ascertained from existing records. There is no doubt, however, that the General Court exercised an extensive chancery jurisdiction, both original and appellate, especially during the last fifty years of Virginia’s colonial existence, for we find that a law was passed in March, 1745, appointing the first five days of every session, for hearing and determining suits and appeals in Chancery.7

Rules in chancery were enacted in October, 1748.8 Between 1650 and 1660 emigrants began to remove from Virginia and settle in the northeastern portion of what was then the Province of Carolina, now North Carolina.1

In 1663 Sir William Berkely, Governor of Virginia, visited the Province and appointed Wm. Drummond Governor.2 In 1665, the first Assembly sat at Albemarle. . . . There was at this time no town in the settlements, and for many years the Legislatures convened in private houses.3

In 1667 Drummond was succeeded by one Stevens who brought with him liberal instructions from the lords proprietors. He was to act by and with the advice and consent of a council of twelve, one-half his appointees, the others elected by the Lower House of Assembly. The earliest recorded legislation was effected in 1669. In 1670 the cumbrous constitution drawn up by Shaftesbury and John Locke was promulgated, and the people were expected to unanimously indorse the most impracticable scheme of government ever proposed in our entire colonial history. It is scarcely necessary to say, that although many years elapsed before it was formally set aside, its effect was directly opposite to that which had been fondly hoped. Its provisions were opposed at every turn, for they were drawn up without any regard for the actual needs of the inhabitants of this very sparsely settled Province. For sixty-one years longer the proprietary government continued, but with little satisfaction to Governors or governed. The people were poor, the revenues small and uncertain, and it was but natural that the settlers on lonely plantations should object to paying tribute to nobles wealthy and powerful in the old country. Despairing of acquiring riches, all the owners save Cartaret finally sold out to the Crown in 1731, when the Province was divided into two portions, namely North and South Carolina.

In the early days of this colony the Court of Chancery “was composed of the Governors and deputies of the lords proprietors, ex officio.”4 There still exist the records of a few cases that were “decided on principles recognized in the English Courts of Chancery,”1 thus showing that no one was denied relief even in the remotest period of the colonial history.2 It was enacted in 1715 that every member of the Council be “required to swear that as a judge in a court at chancery he will do what is just and right between those who might come before him as suitors in that court.” It was also provided that “if the Governor should be a party to any suit before that court, any four members of the court might hear and decide the cause without the presence of the Governor.”3

During the first four years (from 1670 to 1674) of the history of South Carolina the Governor and Council sat as a court weekly; cognizance was taken of complaints and petitions, and causes of almost every nature were heard and decided.4 In 1674 the first Assembly met. The Upper and Lower Houses took the name of the Parliament, as in the northern portion of the Colony the Governor and Council exercised, from the first, chancery jurisdiction.5

In the year 1719 the people remonstrated with the proprietors against retaining Nicholas Trott (their willing tool), who was not only sole judge of the Courts of Common Pleas, and King’s Bench, but also of the Court of Vice Admiralty, and at the same time, as a member of the Council, one of the judges of the Court of Chancery. He was, however, too useful a man to be displaced, and so the remonstrances of the people were disregarded.6

In 1721 was passed “an act for establishing a Court of Chancery empowering the Governor of the Province for the time being and the majority of the honorable members of his majesty’s Council from time to time subsisting, to hold a Court of Chancery, and to have, exercise, and use the same jurisdiction, power, and authority in granting and issuing forth all original and remedial writs and other process whatsoever, and in hearing, adjudicating, and determining all causes and suits in equity in as full and ample manner as any chancellor or court or courts of chancery can, may, or ought to do.”1

It does not appear from the records that there were any assistant judges prior to 1736. A single chief justice had presided over the courts in Charlestown, which were then, and for thirty-three years after, the only ones held in the Province.2

It is evident that there arose some question as to courts with equity powers in this colony, for we find that Rider and Strange, as attorney and solicitor generals, gave their opinion, in 1738, that the Colonial Assembly could establish, if they saw fit, a Court of Exchequer.3

The Governor and Council exercised chancery jurisdiction as well after the Colony became a royal Province as before and so continued to act down to the Revolution.4

The first charter of Georgia constituted twenty-one persons, a body corporate by the name and style of “The Trustees for establishing the Colony of Georgia in America.” They were empowered to make constitutions, laws, and ordinances for the government of their Province,5 and it was further provided that at the expiration of twenty-one years, that the form of government that should then be thought best should be adopted, in which all officers, civil and military, should be nominated and appointed by the King.6 Before embarking, officers for the new town were appointed, namely, three bailiffs, a recorder, two constables, two tithing men and eight conservators of the peace.7 They also organized a court of judicature, in which might be heard “all manner of crimes, offenses, pleas, processes, plaints, actions, matters, causes, and things whatever arising or happening within the Province of Georgia.” It was called the Town Court, and was opened July 7, 1733.8

“This court was supreme, blending in one tribunal the several powers usually lodged in common pleas, chancery, probate, nisi prius, sheriffs, coroners, and exchequer, and all committed to men unlearned in the principles of law and unversed in the usages of courts.” There were no lawyers in the Province for years; every suitor tried his own case. As settlements increased, new town courts were organized, but they gave but little satisfaction. Their officers seem to have been guilty of all sorts of misdeeds, “making false imprisonments, wrongfully discharging grand juries, threatening petit juries, blasphemy, irreverence, drunkenness, obstructing the course of law, and other equally grave and heinous offenses.” In 1752 the Province was surrendered to the Crown and passed under the control of the “Board of Trade and Plantations.” The royal Governor “had the same powers as the Lord High Chancellor of England.”1 The Council was appointed by the King, who also filled all vacancies. “They also had a judicial character, and in this aspect sat with the Governor in the Court of Chancery.”2

The writer has done his best with the material at his command. While he has had no difficulty in obtaining information, so far as some of the colonies were concerned, he has been able to find but little on turning his attention to others, notably the southernmost. He is aware that no adequate history of this court can be written without consulting the original archives of each colony; yet he feels that the facts contained in this paper will be of some interest to those who are at all curious as to the early judicial history of our country.

[1 ]This essay was first printed in the American Law Review, vol. XVIII, pp. 226-255 (1884).

[2 ]Legal adviser to the land department of the Chicago and Northwestern R. Co. Admitted to the New Hampshire (Exeter) Bar, 1877, to the Illinois (Chicago) Bar, 1881.

Other Publications: Sundry articles in legal periodicals.

[1 ]Washburne’s Jud. His. of Mass. 26.

[2 ]Maverick v. Phillips, 4 Mass. Col. Records, pt. 1, p. 187.

[3 ]Hues v. Rogers, 4 ibid., pt. 11, p. 292.

[4 ]Case of Roxbury Free School, 4 Ibid., pt. 11, p. 434.

[5 ]Sloan v. Bosworth, 5 Ibid. 36.

[6 ]Patch v. Patch, 5 Ibid. 39.

[7 ]Goss v. Callecot, 5 Ibid. 150, 247, 273.

[8 ]Thatcher v. Thatcher, 5 Ibid. 245.

[9 ]Sears v. How., 5 Ibid. 379; Dedham v. Natick Indians, 4 Ibid. 49.

[1 ]Each County Court consisted of one assistant, or magistrate, residing in the county, or of one specially appointed by the General Court, aided by commissioners, nominated by the freemen, and appointed by the General Court.

[1 ]Charters and General Laws of Colony and Province of Mass. Bay, 93-94.

[2 ]Washburn, 35.

[3 ]Belknap’s History of New Hampshire, 185.

[4 ]Quincy’s Mass. Rep. 1761-1772, p. 538.

[5 ]It was early enacted in Plymouth, “that the Bench shall have power to determine such matters of equity as cannot be relieved at common law; as the forfeiture of an obligation, breach of covenants without great damage, or the like matters of apparent equity.” The General Laws and Liberties of New Plymouth Colony, 260.

[1 ]Washburn, 98.

[2 ]Washburn, 166-7.

[1 ]2 Chalmer’s Opinions, 182-3.

[1 ]Quincy, 538-9.

[2 ]Quincy, 539.

[3 ]New Hampshire Law, its Source, etc., by Farmer, 202.

[4 ]Sanborn’s History of New Hampshire, 81.

[1 ]Belknap, 140.

[2 ]Wells v. Pierce, 27 N. H. 512.

[3 ]1 Belknap, 162-3.

[4 ]Wells v. Pierce, 27 N. H. 512.

[5 ]Sanborn, 81.

[6 ]Judge Bell in Wells v. Pierce, 27 N. H. 512.

[1 ]1 R. I. Col. Records, 14.

[2 ]Charter.

[1 ]III. Col. Rec., 550-551.

[2 ]III. Ibid. 550-551.

[1 ]IV. Ibid. 136-137.

[2 ]V. Ibid. 23.

[1 ]V. Ibid. 76.

[2 ]New Haven Colonial Records, vol. 1, p. 191.

[3 ]Blue Laws of Conn. (Smucker) 22.

[1 ]New Haven Colonial Records, 113-114.

[2 ]Smucker, 33.

[3 ]Colonial Records of Conn. 3-413.

[1 ]Connecticut Colonial Records, 6 vol., pp. 444-5.

[2 ]Chancery in Pennsylvania (Rawle), 4.

[3 ]Docs. Relating to the Colonial History of New York, 721.

[4 ]Ibid. 834.

[5 ]Ibid. 844.

[6 ]V. Ibid. 882.

[7 ]Ibid. 252.

[1 ]Ibid. 298.

[2 ]Mag. Am. His’y, March, 1879.

[3 ]Macauley, 446.

[1 ]Lamb’s History of New York City, 536-7-8.

[2 ]II. Smith’s History of New York, 5.

[3 ]II. Lamb, 54.

[1 ]II. Smith, 13.

[2 ]Ibid. 24.

[3 ]Ibid. 227.

[4 ]New Jersey Archives, 3.

[5 ]Ibid. 8-9-10.

[6 ]Mulford’s History, 131.

[7 ]Ibid. 147.

[1 ]III. New Jersey Archives, 4.

[1 ]IV. Ibid. 70.

[2 ]Ibid. 114.

[3 ]Ibid. 168.

[4 ]Rawle’s Equity in Pa. 4.

[5 ]Ibid. 8.

[6 ]1 Col. Record, 98.

[7 ]Ibid. 102.

[1 ]Ibid. 142.

[2 ]Ibid. 159.

[3 ]Laws of 1690, ch. 7, sect. 197.

[4 ]II. Col. Rec. 23, etc.; Brightly, 29-30.

[1 ]Bradford’s Laws, 120.

[2 ]Rawle, 18.

[1 ]III. Col. Rec. 100.

[2 ]Ibid. 106.

[1 ]Ibid. 281.

[2 ]Ibid. 687.

[1 ]15 American Jurist, 253.

[2 ]1 Bland, 624.

[3 ]1 Bozman, 291.

[4 ]II. Bozman, 132.

[1 ]1 Bland, 609.

[2 ]1 Bland, 624-625.

[1 ]1 Bland, 625.

[2 ]1 Bland, 625.

[3 ]Ibid. 648-649.

[1 ]Campbell’s History of Virginia, 353.

[2 ]Henning, 125.

[3 ]Campbell, 352.

[4 ]Henning, 273.

[5 ]Henning, 303.

[6 ]Henning, 59.

[7 ]Henning, 320.

[8 ]Henning, 501.

[1 ]Lodge, 133.

[2 ]Wheeler’s History of North Carolina, 30.

[3 ]Moore’s History of North Carolina, 1-16.

[4 ]II. Hawk’s History of North Carolina, 203.

[1 ]Ibid. 203.

[2 ]Durant v. Hawkins, Ibid. 133.

[3 ]Ibid. 204.

[4 ]Rivers’ Hist. of South Carolina, 959.

[5 ]Ramsay Hist. of South Carolina, 128; Il. Bozman’s Maryland, 132.

[6 ]Ibid. 156.

[1 ]Brevard’s Digest, preface.

[2 ]II. Ramsay, 154.

[3 ]Chalmer’s Opinions, 70.

[4 ]II. Ramsay, 156.

[5 ]Stevens’ Hist. of Georgia, 63-64.

[6 ]Ibid. 65.

[7 ]Ibid. 217.

[8 ]Ibid. 218.

[1 ]Ibid. 387.

[2 ]Ibid. 388.