as leading to great consequences are not without illustrations that some might regard as fanciful in accounting for the disappearance of distinct chancery courts in the adjoining states of Pennsylvania and New York.

In Pennsylvania repeated efforts had been made by local legislation to unite chancery powers with those of the common law courts, always to be frustrated by the paramount authority of the British government, which naturally was jealous of its prerogative. Thus in 1684 a court consisting of five judges was constituted "to try all criminals, and titles of land, and to be a court of equity to decide all differences upon appeals from the county courts." But this did not receive approval of the Crown. In 1693 county courts had jurisdiction in equity in amounts up to £10 stg.

In 1701 in an act "for establishing courts of judicature in this province and counties annexed" we find a provision that the judges of the several courts of common pleas should have full power "to hear and decree all such matters and causes of equity as shall come before them in said courts; wherein the proceedings shall be by bill and answer, with such other pleadings as are necessary in chancery courts. and proper in these parts; with power also in said justices to force obedience to their decrees in equity as the case may require." By same act the Supreme Court could hear and determine appeals in equity causes, and make such decrees thereon as should be agreeable to equity and justice. This act of the assembly of Pennsylvania also was annulled by the Queen in Council in 1703. Another like act passed in 1710 met that fate in England in 1713. Two years after a further attempt was made to set up a supreme or provincial court of law and equity for this province, which was rejected in England in 1719.

the people early invested the Great and General Court with chancery powers and endeavored to extend that jurisdiction to county magistrates. After Andros and the colonial governors asserted like powers, public hostility arose, to which the later opposition as a state to chancery courts is attributed.2

As the reader may recall, the sweep of Democracy in New York abolished the office of chancellor and his court by the Constitution of 1846. The changes of public sentiment at that time might explain sufficiently this step. Public opinion then swung strongly against the power of all officials, and sought to fill judicial offices by frequent elections, instead of through appointment, and naturally was against retaining an office with the associations of chancellor.

A prominent man of later times, Henry L. Clinton, surveying the past from memories gathered in a wide legal acquaintance, does not hesitate to ascribe this overthrow of the court of chancery to the personal traits of Reuben H. Walworth, the last chancellor. And this was not on account of his decisions, but because of his inveterate habit of interrupting counsel in argument. In our old Court of Errors the chancellor presided. Walworth, when sitting as chancellor, was accustomed to ask many questions to assure himself that he had before him all the necessary parties. And as he presided in the Court of Errors he became still more talkative. Clinton, who must have referred to the closing years of Walworth's office, says: "It was almost impossible for counsel to deliver a continuous argument before him, so constant and persistent were his interruptions."" Clinton was himself a listener to the argument of Webster in Lawrence v. The

Mayor, in 1845, where an attempt was

made to induce the court to reconsider its view of the city's non-liability for build

ings demolished to stop the fire in 1835. Mr. Webster was retained to argue the point, closing a series of arguments that had lasted three or four days. At the end of the first hour, Clinton says the chancellor broke in with an interruption that seemed not to have much point. Mr. Webster paused, looked at the chancellor, and with a few calm and dignified sentences, froze him into silence, which was not broken during the rest of the argument.

Without accepting Clinton's estimate of such far reaching effect of Walworth's peculiarities, we cannot fail to mark how much the value and influence of judicial office depends on the manner and demeanor of its high occupant.

In setting forth this steady, uniform growth of chancery in New Jersey, I must not overlook Delaware, where since the Constitution of Delaware in 1792, equity powers have also been vested in a chancellor. But in the colonial time during the governorship of Patrick Gordon, such powers were vested in the Courts of Common Pleas. This legislation was presumably drawn by Andrew Hamilton, that eminent lawyer whose influence is felt in the provinces of Maryland, Pennsylvania and Delaware, and who then was speaker of the Delaware Assembly.

Equity powers given to such a court not by the governor's prerogative, but by local enactment, seems to be the only instance that escaped the annulling action of the Privy Council. This statute is not dated, but must have been before 1737 and perhaps before 1730.

In New York, we note that the courts, even with trials by jury, were subjected to the oversight of a chancery power vested in the governor with the members of his Assizes. The Court of Assize, besides the governor, was made up from three of his

(4) This may have been for the reason that Delaware was not recognized as a separate Province by the British Government. (Dickerson, Am. Colonial Government, p. 236. Cleveland, 1912.)

council, the mayor of New York, the high sheriff, four justices of the peace of the West Riding and two justices of the North Riding, constituting a somewhat unwieldly court of twelve. This court remained from 1665 to 1683. It thus started almost immediately after the Dutch capitulation of 1664.

After Richard Smith, the patentee of Smithtown, Long Island, had lost two verdicts in his boundary dispute with the town of Huntington, he appealed to Governor Lovelace by petition on September 6, 1671, in which he set forth:

"That, whereas, the town of Huntington claimeth the sole propriety of all the land between Cow harbour and the Nesagunk River, with all the benefits thereof by virtue of two verdicts lately passed as they say. Your petitioner humbly conceives this to be an over rigorous construction and intablished law and therefore humbly reconsistent with righteousness and the esquests your Honor to grant him the liberty. of appeal to the Court of Assizes."5

Huntington answered denying any fraud. or foul practice. The council granted leave to appeal followed by rehearing, and declared that it would give such further determination as would "be consonant to law and good conscience." After many delays. Smith gained the suit in 1674, and later clinched this title by a confirmatory grant from Governor Andros in 1677. Thus, under the form of an appeal, the governor with his Assize really exercised chancery powers of a bill of review.

The governors in New York had acted as chancellors under the authority of the patent to the Duke of York before 1683, when the legislature provided for chancery powers in the governor and council. In 1691 the assembly assumed to limit this court to a term of only seven years. But after 1698 the Crown asserted its prerogative, and continued the chancery power by ordinance or executive order, resisting all limitations by local legislation. This as

sumption naturally called forth popular hostility. In most English provinces such prerogative was exercised without opposition."

In 1727 the New York assembly resolved that the erection of a court of chancery in that colony without the consent of the General Assembly was unwarrantable and illegal, a manifest oppression and grievance to the people and of pernicious consequences to their liberties and properties. To correct its so-called abuses, they reduced the fees of its officers, from which, as Smith's History declares, in 1756 "the wheels of the chancery rusted on their axles, and its practice was condemned by all gentlemen of eminence in the profession."

Governor Montgomerie added to his popularity by declining to sit as chancellor until enjoined to do so by orders from England. He never rendered a single decree, and signed not more than three orders, and these, both as to matter and form, were first settled by the counsel concerned. In 1730, under Governor Montgomerie, a committee of the council provided for a reduction of chancery fees, moderating the same, so that they be made more conformable to the circumstances of

(6) "It appears to have been the usage throughout all English colonies in Americain the West Indies, as well as on the Continent -that every English Governor of every Province or island was, by virtue of his commission, Chancellor of the Province of which he was Governor, and personally discharged the duties of that office, sometimes solely, and sometimes with the assistance and presence of his council, according to the directions of his commission or some special act of the Province for that purpose. In Barbadoes, Antigua, Montserrat and South Carolina, the council sat as judges with the Governor in the court of chancery. In Jamaica the Governor sat alone as chancellor. In Maryland also, prior to the Revolution, the Governor sat alone as chancellor, from whose decision an appeal lay to the Governor and Council (by Act of the Assembly) sitting as a court of appeals." (Bozeman, History of Maryland, Vol. II, pp. 131, 132.)

In Maryland this was by an act of March, 1638-9, Archives of Maryland, Vol. I, p. 49.

In North Carolina, the Governor sat with four members of his Council. Later the number from the Council was made five. (Raper, No. Carolina, A Study in Eng. Colonial Government, pp. 75, 151, N. Y., 1904.)

the province. This was the measure that its introducer declared: "If it succeeds it will tear off the ruffles from the lawyer's wrists"-an expression that recalls the old-time lace ruffles of the late Benjamin Harris Brewster, the courtly attor ney-general in Arthur's cabinet!

Without further dwelling on the local contest over the New York chancery, I must hasten to the Revolution, and the bench and bar of that era. The Eastern states, and even New York, at the Revolution, had a strong popular distrust of the legal profession. The early colonists, so largely agricultural, had little use for lawyers. Nevertheless, young distinguished lawyers in New York were brought into politics, and in the cases both of John Jay and of Robert Livingston, into diplomacy.

We think of Hamilton chiefly as a statesman, the first Secretary of the Treasury, and his service in bringing about the adop tion of the Federal Constitution. The law reports and the testimony of his contemporaries show him to have been a thorough lawyer. Yet his preparation for the bar was by only four months' reading!

With brilliant exceptions, New York had few lawyers well equipped. In New Hamp shire, three justices of the Superior Court were laymen. Governor Washburn, of Massachusetts, author of the treatises on Real Property and Easements, has stated his disbelief that in the colonial period there was a single well-trained lawyer in Massachusetts.

Association with the British crown prerogatives also tended to leave a prejudice, especially in New England, against the court of chancery. Then, too, the form of a bill in chancery in its supplicatory ap proach to the court was opposed to Puritan ideas. This is noticeable during the period of Cromwell's Interregnum. Even Lord Campbell, the prejudiced historian, was reluctant to admit that the common law bench was never better filled than under the Great Protector, as was assured

by the character of Lord Hale as Chief Justice.

Lord Whitelock, one of the commissioners of the great seal in 1649, in assuming his duties after the King's death, is reported as saying of chancery jurisdiction, in which he had experience as an equity lawyer and judge:

"That equity down to this time had not acquired any systematic form, and was not yet based upon principle. The judges of the common law have certain rules to guide them. A keeper of the seal has nothing but bis conscience to direct him, and that is often deceitful. The proceedings in chancery are secundum arbitrium boni viri, and this arbitrium differs as much in different men as doth their complexion or the length of their foot."

This expression at once recalls the famous dictum in Selden's Table Talk, which, however, was not published till thirty years later. Selden and Whitelock were intimate friends.. Selden's epithet suggests the disrespect he felt for the chancery rulings when he says: "Equity is a roguish thing; for law we have a measure-know what to trust to; equity is according to him that is chancellor, and as that is larger or narrower, so is equity. It is all one as if they should make the standard of the measure we call a foot; what an uncertain measure this would be. One chancellor has a long foot, another a short foot, a third an indifferent foot; it is the same thing in the chancellor's conscience."s

One of the early resolves of the Little Parliament, called the Barebones Parliament, in 1653, was that the High Court of Chancery in England should be forthwith taken away. And we have Carlyle's commendation for such a bill for abolishing the court of chancery:

"Finding grievances greater than could be borne, finding for one thing twenty-three thousand causes of five to thirty years' continuance, lying undetermined in chan

cery, it seemed to the Little Parliament that some court ought to be contrived that would actually determine these and the like causes-and that on the whole Chancery would be better for abolition. Vote to that effect stands registered on the Common Journals, but still for near two hundred years now only expects fulfillment. So far as one can discover in the huge twilight of Dry-as-dust, it was mainly by this attack on the lawyers and attempt to abolish chancery that the Little Parliament perished." He adds: "There was immense carousing in the Temple when this Parliament ended."

Although the court of chancery was not abolished, its delays and burdensome expenses weighed heavily on the people. Lord Campbell quotes a contemporary pamphlet, apparently also known to Carlyle, which said:

"The chancery is a great grievance, one of the greatest in the nation. It is confidently affirmed by knowing gentlemen of worth that there are depending in that court 23,000 causes; that some have been depending five, some ten, some twenty, some thirty years and more; there have been spent in causes many hundreds, nay thousands of pounds, to the undoing of many families. What is ordered one day is contradicted the next, so as in some cases, there have been 500 orders!"10

At frequent parliaments measures for amendment of the chancery were introduced, but few were passed. Perhaps the British crown wisely refused its assent to popular chancery courts in this country because at that time the system of chancery or equity law was little developed. White and Tudor's Leading Cases have sixty-nine decisions, covering what are still our central and controlling doctrines. Out of these only eight were rendered before the year 1700. And only thirty-four, less than half, were decided before the year 1750. Before our Independence, the reports of the Eng: lish chancery are few; some anonymous,