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erty, sell the same, and reinvest the proceeds THE EARLY ADMINISTRATION OF for the benefit of the life tenant and the re

EQUITY IN THIS COUNTRY.* . mainderman, where it appears that unless equity interferes the property will be lost to both life tenant and remainderman.”

For both as a province, and afterwards

as a state, New Jersey has had the exSTATE CANNOT PROHIBIT ACTIONS ON

perience of a continuing recognized sepaJUDGMENTS RECOVERED IN SISTER

ration between the courts of law and equity. STATE.--Illinois has sought, for some reason The ordinance of Governor William Frankconsistent with a strange policy of exclusion, i lin in 1770 accurately records: "That to bar actions in Illinois for damages occa there has always been a court of chansioned by death occurring in another State, in

cery held in the Province of New Jersey." consequence of wrongful conduct. The Illi

Certainly since 1695 the only difference and nois courts attempted to apply this statute to

fluctuations have been of administration; suits on judgments for death by wrongful act obtained in other States, but the Supreme

that is, whether the office of chancellor Court has held recently that no State law can

could be performed by the governor alone, prohibit the enforcement of judgments of the or if he should act with the assistance of courts of another State. Kenny v. Supreme his council. Lodge, 40 Sup. Ct. 371. The Supreme Court | In 1695 the New Jersey general assemof Illinois held that, as by the terms of the

bly enacted that the judges of the Court statute, the original action could not have 1 of Common Right should not be judges been brought there, the Illinois courts had

of the High Court of Chancery, whose no jurisdiction of a suit upon the judgment. (258 Ill. 188.) They relied on Anglo-Ameri

chancery powers ceased before 1698. Becan Provision Co. y. Davis Provision Co., 191tween 1698 and 1705 chancery powers were U. S. 373, 24 Sup. Ct. 92 and Wisconsin v. Peli only in the governor and council. Hence, can Ins. Co., 127 U. S. 265, 8 Sup. Ct. 1370. In I am justified in saying that in New Jeranswer to this contention the Supreme Court sey a court of chancery has been separately says:

maintained in an unbroken succession for "In Fauntleroy V. Lum (210 U. S. 230, 28 two hundred and twenty years. Sup. Ct. 641) it was held that the courts of The plight of their colonial neighbors Mississippi were bound to enforce a judg. ment rendered in Missouri upon a cause of

marks a great contrast. And this is the more action arising in Mississippi and illegal and curious, since in the beginning, the provvoid there. The policy of Mississippi was

inces of New York and New Jersey were more actively contravened in that case than the policy of Illinois is in this. Therefore, the under the single administration of the same fact that here the original cause of action

governor. Both were early molded and could not have been maintained in Illinois is not an answer to a suit upon the judgment directed by the genius of Lord Cornbury, (see Christmas v. Russell, 5 Wall. 290; Con

to whom we in New York owe so much. verse v. Hamilton, 224 U. S. 243, 32 Sup. Ct. 415). But this being true, it is plain

The early hostility to chancery and the that a State cannot escape its constitutional jealousy it encountered in colonial times obligations by the simple device of denying jurisdiction in such cases to courts otherwise

left a deep and lasting impression on the competent. The assumption that it could not states after the revolution, or the source do so was the basis of the decision in Inter

of that feeling may come out of simpler national Text Book Co. v. Pigg (217 U. S. 91, 111, 112, 30 Sup. Ct. 481, and the same prin. things. Those who like to set small events ciple was foreshadowed in General Oil Co. v. Crain (209 U. S. 211, 216, 220, 228, 28 Sup.

*This article is a revision of an address by Ct. 475) and in Fauntleroy v. Lum (210 U. S.

Justice Putnam of the Supreme Court of New 230, 235, 236, 28 Sup. Ct. 641). Whether the

York, before the New Jersey Bar Association, Illinois statute should be construed as the

June 15, 1918. It is delightfully discursive and Mississippi act was construed in Fauntleroy

at the same time filled with much valuable v. Lum was for the Supreme Court of the

information.-Editor. State to decide, but read as that court read it,

(1) The Provincial Courts of New Jersey, by it attempted to achieve a result that the Con

Richard S. Field, p. 113. (Coll. N. J. Hist. Soc., stitution of the United States forbade.”

Vol. III.)

as leading to great consequences are not the people early invested the Great and without illustrations that some might re- General Court with chancery powers and gard as fanciful in accounting for the dis- endeavored to extend that jurisdiction to appearance of distinct chancery courts in county magistrates. After Andros and the the adjoining states of Pennsylvania and colonial governors asserted like powers, New York.

public hostility arose, to which the later In Pennsylvania repeated efforts had

opposition as a state to chancery courts iş been made by local legislation to unite

attributed.? chancery powers with those of the com As the reader may recall, the sweep of mon law courts, always to be frustrated Democracy in New York abolished the ofby the paramount authority of the British fice of chancellor and his court by the Congovernment, which naturally was jealous stitution of 1846. The changes of public of its prerogative. Thus in 1684 a court sentiment at that time might explain sufficonsisting of five judges was constituted ciently this step. Public opinion then "to try all criminals, and titles of land, swung strongly against the power of all and to be a court of equity to decide all officials, and sought to fill judicial offices differences upon appeals from the county by frequent elections, instead of through courts." But this did not receive approval appointment, and naturally was against reof the Crown. In 1693 county courts had taining an office with the associations of jurisdiction in equity in amounts up to , chancellor. £10 stg.

A prominent man of later times, Henry In 1701 in an act "for establishing courts | L. Clinton, surveying the past from memof judicature in this province and counties ories gathered in a wide legal acquaintance, annexed" we find a provision that the does not hesitate to ascribe this overthrow judges of the several courts of common of the court of chancery to the personal pleas should have full power “to hear and traits of Reuben H. Walworth, the last decree all such matters and causes of chancellor. And this was not on account equity as shall come before them in said of his decisions, but because of his invetercourts; wherein the proceedings shall be ate habit of interrupting counsel in arguby bill and answer, with such other plead

ment. In our old Court of Errors the chanings as are necessary in chancery courts

cellor presided. Walworth, when sitting and proper in these parts; with power also as chancellor, was accustomed to ask many in said justices to force obedience to their questions to assure himself that he had decrees in equity as the case may require.” | before him all the necessary parties. And By same act the Supreme Court could hear

as he presided in the Court of Errors he and determine appeals in equity causes, and

became still more talkative. Clinton, who make such decrees thereon as should be must have referred to the closing years of agreeable to equity and justice. This act |

Walworth's office, says: “It was almost of the assembly of Pennsylvania also was

impossible for counsel to deliver a conannulled by the Queen in Council in 1703. tinuous argument before him, so constant Another like act passed in 1710 met that

and persistent were his interruptions." fate in England in 1713. Two years after

Clinton was himself a listener to the ara further attempt was made to set up a su

gument of Webster in Lawrence v. The preme or provincial court of law and equity

Mayor, in 1845, where an attempt was for this province, which was rejected in

made to induce the court to reconsider its England in 1719.

view of the city's non-liability for buildA like situation occurred in Massachu

(2) Washburn, Jud. Hist. of Mass., p. 167. setts. Under the proprietary government 1 (3) Extraordinary Cases, p. 14 (N. Y, 1896)..

ings demolished to stop the fire in 1835. council, the mayor of New York, the high Mr. Webster was retained to argue the sheriff, four justices of the peace of the point, closing a series of arguments that West Riding and two justices of the had lasted three or four days. At the end | North Riding, constituting a somewhat unof the first hour, Clinton says the chan- wieldly court of twelve. This court recellor broke in with an interruption that mained from 1665 to 1683. It thus started seemed not to have much point. Mr. Web- almost immediately after the Dutch capster paused, looked at the chancellor, and itulation of 1664. with a few calm and dignified sentences, After Richard Smith, the patentee of froze him into silence, which was not bro Smithtown, Long Island, had lost two verken during the rest of the argument. dicts in his boundary dispute with the town

Without accepting Clinton's estimate of of Huntington, he appealed to Governor such far reaching effect of Walworth's pe- | Lovelace by petition on September 6, 1671, culiarities, we cannot fail to mark how in which he set forth: much the value and influence of judicial

“That, whereas, the town of Huntington

claimeth the sole propriety of all the land office depends on the manner and demeanor

between Cow harbour and the Nesagunk of its high occupant.

River, with all the benefits thereof by virIn setting forth this steady, uniform tue of two verdicts lately passed as they growth of chancery in New Jersey, I must say. Your petitioner humbly conceives this not overlook Delaware, where since the

to be an over rigorous construction and in

consistent with righteousness and the esConstitution of Delaware in 1792, equity

tablished law and therefore humbly repowers have also been vested in a chan

quests your Honor to grant him the liberty cellor. But in the colonial time during the of appeal to the Court of Assizes.”'S governorship of Patrick Gordon, such pow- Huntington answered denying any fraud ers were vested in the Courts of Common or foul practice. The council granted leave Pleas. This legislation was presumably to appeal followed by rehearing, and dedrawn by Andrew Hamilton, that eminent clared that it would give such further delawyer whose influence is felt in the prov- | termination as would "be consonant to law inces of Maryland, Pennsylvania and Dela- and good conscience.” After many delays ware, and who then was speaker of the Smith gained the suit in 1674, and later Delaware Assembly.

clinched this title by a confirmatory grant Equity powers given to such a court not from Governor Andros in 1677. Thus, unby the governor's prerogative, but by local der the form of an appeal, the governor enactment, seems to be the only instance with his Assize really exercised chancery that escaped the annulling action of the powers of a bill of review. Privy Council. This statute is not dated, The governors in New York had acted but must have been before 1737 and per as chancellors under the authority of the haps before 1730.

patent to the Duke of York before 1683, In New York, we note that the courts, when the legislature provided for chancery even with trials by jury, were subjected powers in the governor and council. In to the oversight of a chancery power vested 1691 the assembly assumed to limit this in the governor with the members of his court to a term of only seven years. But Assizes. The Court of Assize, besides the after 1698 the Crown asserted its prerogagovernor, was made up from three of his tive, and continued the chancery power by sumption naturally called forth popular hos- the province. This was the measure that tility. In most English provinces such pre- its introducer declared: "If it succeeds rogative was exercised without opposition. it will tear off the ruffles from the law

ordinance or executive order, resisting all (4) This may have been for the reason that limitations by local legislation. This asDelaware was not recognized as a separate Province by the British Government. (Dickerson, Am. Colonial Government, p. 236. Cleveland, (5) Executive Council Minutes, N. Y., Vol. II,


p. 434.

In 1727 the New York assembly resolved | yer's wrists”-an expression that recalls that the erection of a court of chancery the old-time lace ruffles of the late Benin that colony without the consent of the jamin Harris Brewster, the courtly attorGeneral Assembly was unwarrantable and ney-general in Arthur's cabinet! illegal, a manifest oppression and grievance Without further dwelling on the local to the people and of pernicious conse ¡ contest over the New York chancery, I quences to their liberties and properties.

must hasten to the Revolution, and the To correct its so-called abuses, they re bench and bar of that era. The Easter duced the fees of its officers, from which, states, and even New York, at the Revoas Smith's History declares, in 1756 "the lution, had a strong popular distrust of wheels of the chancery rusted on their the legal profession. The early colonists, axles, and its practice was condemned by | so largely agricultural, had little use for all gentlemen of eminence in the profes lawyers. Nevertheless, young distinguished sion.”

lawyers in New York were brought into Governor Montgomerie added to his pop politics, and in the cases both of John Jay ularity by declining to sit as chancellor and of Robert Livingston, into diplomacy. until enjoined to do so by orders from

We think of Hamilton chiefly as a statesEngland. He never rendered a single de

man, the first Secretary of the Treasury, cree, and signed not more than three or

and his service in bringing about the adop ders, and these, both as to matter and

tion of the Federal Constitution. The law form, were first settled by the counsel con

reports and the testimony of his contempocerned. In 1730, under Governor Mont

raries show him to have been a thorough gomerie, a committee of the council pro

lawyer. Yet his preparation for the bar vided for a reduction of chancery fees, mod

was by only four months' reading! erating the same, so that they be made

With brilliant exceptions, New York had more conformable to the circumstances of

few lawyers well equipped. In New Hamp(6) "It appears to have been the usage

shire, three justices of the Superior Court throughout all English colonies in America were laymen. Governor Washburn, of in the West Indies, as well as on the Continent --that every English Governor of every Province

Massachusetts, author of the treatises on or island was, by virtue of his commission, Real Property and Easements, has stated Chancellor of the Province of which he was

his disbelief that in the colonial period Governor, and personally discharged the duties of that office, sometimes solely, and sometimes there was a single well-trained lawyer in with the assistance and presence of his council,

Massachusetts. according to the directions of his commission or some special act of the Province for that pur Association with the British crown prepose. In Barbadoes, Antigua, Montserrat and South Carolina, the council sat as judges with

rogatives also tended to leave a prejudice, the Governor in the court of chancery. In Ja

especially in New England, against the maica the Governor sat alone as chancellor. In Maryland also, prior to the Revolution, the court of chancery. Then, too, the form Governor sat alone as chancellor, from whose of a bill in chancery in its supplicatory apdecision an appeal lay to the Governor and Council (by Act of the Assembly) sitting as a proach to the court was opposed to Puricourt of appeals." (Bozeman, History of Mary

tan ideas. This is noticeable during the land, Vol. II, pp. 131, 132.)

period of Cromwell's Interregnum. Even In Maryland this was by an act of March, 1638-9, Archives of Maryland, Vol. I, p. 49. Lord Campbell, the prejudiced historian,

In North Carolina, the Governor sat with four members of his Council. Later the number from

was reluctant to admit that the common the Council was made five. (Raper, No. Caro law bench was never better filled than unlina, A Study in Eng. Colonial Government, pp. 75, 151, N. Y., 1904.)

der the Great Protector, as was assured

by the character of Lord Hale as Chief Jus- cery, it seemed to the Little Parliament tice.

that some court ought to be contrived that

would actually determine these and the like Lord Whitelock, one of the commission

causes—and that on the whole Chancery ers of the great seal in 1649, in assuming would be better for abolition. Vote to that his duties after the King's death, is re effect stands registered on the Common ported as saying of chancery jurisdiction,

Journals, but still for near two hundred

years now only expects fulfillment. So far in which he had experience as an equity

as one can discover in the huge twilight of lawyer and judge:

Dry-as-dust, it was mainly by this attack "That equity down to this time had not on the lawyers and attempt to abolish chanacquired any systematic form, and was not

cery that the Little Parliament perished.” yet based upon principle. The judges of

He adds: “There was immense carousing the common law have certain rules to guide

in the Temple when this Parliament them. A keeper of the seal has nothing but

ended.'' his conscience to direct him, and that is often deceitful. The proceedings in chan

Although the court of chancery was not secundum arbitrium boni viri, and abolished, its delays and burdensome exthis arbitrium differs as much in different penses weighed heavily on the people. Lord men as doth their complexion or the length

Campbell quotes a contemporary pamphof their foot."?

let, apparently also known to Carlyle, which This expression at once recalls the fa- | said: mous dictum in Selden's Table Talk, which, however, was not published till thirty years “The chancery is a great grievance, one later. Selden and Whitelock were intimate

of the greatest in the nation. It is con

fidently affirmed by knowing gentlemen of friends.. Selden's epithet suggests the dis

worth that there are depending in that court respect he felt for the chancery rulings

23,000 causes; that some have been dewhen he says: “Equity is a roguish thing ; | pending five, some ten, some twenty, some for law we have a measure—know what to thirty years and more; there have been trust to; equity is according to him that

spent in causes many hundreds, nay thouis chancellor, and as that is larger or nar

sands of pounds, to the undoing of many

families. What is ordered one day is rower, so is equity. It is all one as if they

contradicted the next, so as in some cases, should make the standard of the measure there have been 500 orders !”10 we call a foot; what an uncertain meas

At frequent parliaments measures for ure this would be. One chancellor has a

amendment of the chancery were introlong foot, another a short foot, a third an

duced, but few were passed. Perhaps the indifferent foot; it is the same thing in

British crown wisely refused its assent to the chancellor's conscience.”

popular chancery courts in this country One of the early resolves of the Little

because at that time the system of chancery Parliament, called the Barebones Parlia

or equity law was little developed. White ment, in 1653, was that the High Court of

and Tudor's Leading Cases have sixty-nine Chancery in England should be forthwith

decisions, covering what are still our centaken away. And we have Carlyle's com

tral and controlling doctrines. Out of these mendation for such a bill for abolishing

only eight were rendered before the year the court of chancery:

1700. And only thirty-four, less than half, "Finding grievances greater than could | were decided before the year 1750. Before be borne, finding for one thing twenty-three our Independence, the reports of the Eng: thousand causes of five to thirty years' lish chancery are few. Some anonymous. continuance, lying undetermined in chan


(8) 1728).

3 Camp. Lives L. C., p. 344.

(9) Life and Letters of Cromwell, Vol. II, Table Talk. Selden's Works, p. 2028 (ed. | P. 42

(10) Camp. Lives of L. C., Vol. III, p. 391.

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