Chapter IV (1)

One of the most troublesome questions with which the colonial
administrator had to deal was equity jurisprudence. In the early
years of the seventeenth century politics entered into the contest
for jurisdiction between the English court of chancery and the courts
of common law, beclouding the issues and retarding a settlement of
their respective spheres of action. Popular dislike pictured the
chancellorship as a great political office closely identified with
the Crown, and grudgingly admitted its importance in the complex
judicial system of England. On the other hand, the chancellor
too frequently subordinated the judicial functions of his office
to ministerial policy and permitted abuses in the organization
and administration of his court that impaired its usefulness and
checked the growth of its business. At this early period chancery
practice was concerned chiefly with questions connected with the
devolution and management of real property and property held in
trust, and many of the broader doctrines of equity were still in
process of growth. Lord Nottingham, the father of modern equity,
held the office of chancellor from 1673 to 1682, but was succeeded
by several chancellors of inferior capacity who added nothing to the
prestige of the court, while the masters and inferior officers were
chiefly distinguished for rapacity and extortion, not to speak of
incompetency and dishonesty, in the management of property committed
to their care.[353] Reform came, but too late to convince the more
democratic communities of the positive advantages of chancery
procedure, while the prevailing fanatical devotion to trial by jury
operated as a check upon any system that seemed to interfere with
that palladium of liberty.

It was manifestly impossible to administer complete justice according
to the English system without the assertion of equitable rights
and the enforcement of equitable remedies. Anything less would
have amounted to a denial of justice, and in so far as some few
equitable rights were concerned, this was vaguely recognized. But a
true appreciation of the necessity for the introduction of chancery
procedure was obscured by a common and popular error which confused
equity with so-called natural justice; an error for which chancery
literature was, perhaps, itself in a measure responsible, in basing
its claims to override the strict rules of the common law upon the
strength of an intrinsic ethical superiority.[354]

Another obstacle to the introduction of equity jurisprudence was
the primitive social conditions that prevailed in the sparsely
populated settlements. There was sufficient difficulty in the
conduct of an ordinary lawsuit in the local courts without adding
to the embarrassment of the magistracy by requiring them to solve
the mysteries of the unreformed chancery pleading and practice. The
colonial judge of the seventeenth and eighteenth centuries was in
knowledge and training about on a par with the English justice of the
peace and it would have been as preposterous to expect the former to
undertake the office of chancellor as to impose similar duties on the
English quarter sessions. When, in the eighteenth century, trained
lawyers began to make their influence felt in the colonies, disputes
and misunderstandings between the assemblies and the governors
prevented the creation of or retarded the growth of courts of
chancery, resulting in a conflict of principles and practice in the
several provinces far too intricate to be briefly described.[355]
The theory upheld by the crown lawyers, and put in practice in the
more tractable colonies, was that the governor, as custodian of the
great seal, was the proper person to act as chancellor, assisted if
necessary by the council. To this the more democratic communities
were opposed, as an undue extension of the prerogative, but they had
no substitute to offer except the direct exercise of equitable relief
by legislative resolution or the delegation of limited equity powers
to the ordinary courts, such as giving relief from the penal clauses
of bonds and mortgages. It did not seem difficult to the uninitiated
to inject into the law such equitable principles as would mitigate
the harshness of its stricter rules. The limited scope of such an
experiment and the deprivation involved, in the elimination of the
powerful preventive measures afforded by chancery process, became
apparent only when the commercial and industrial expansion of the
American commonwealths had brought about more complicated social
relations.

The reform of procedure in the more progressive jurisdictions, has
buried chancery and common law practice in a common tomb and if it
were safe to hazard an opinion upon the parentage of the modern
complaint, or statement, the inclination would be to favor the bill
in equity rather than the common law declaration. But it would
seem that before these momentous changes could well be brought
about, it was necessary that both systems should reach the limits
of their development, that there should be a thoroughly scientific
demonstration of the economic waste involved in a dual and highly
artificial procedure, before one more simple and rational could be
evolved. Conservative opinion hesitates to endorse these changes, and
the tendency, displayed in many jurisdictions, to overload procedure
with petty statutory details, that ought to be left to the rules
of court, shows an immature conception of the principles of law
reform. If this is true today, how poorly prepared was the eighteenth
century for experiments in jurisprudence, with a bar nourished on
technicalities and trained to state almost every legal right in
procedural terms.

Pennsylvania was one of the most persistent of the colonies in its
opposition to the introduction of a court of chancery, and its
courts were the most fertile in devising expedients to decrease the
inconveniences resulting from such opposition, and this, although in
the immediately adjoining colonies chancery had a fairly successful
development. In the early period, political conditions had much to
do with the failure of the only serious attempt to establish such a
court. After the Revolution, opposition to the extension of equity
jurisdiction long continued as a political tradition, in spite of the
changed attitude of the leaders of the bar.

While the territory on the Delaware was under the government of the
Duke of York it would seem to have been the intention to administer
equity, in the popular sense of that word, through the court of
assizes. Among the laws of April 2, 1664, was one that provided:--

“In regard it is almost impossible to provide Sufficient Lawes
in all Cases, or proper Punishments for all Crimes the Court of
Sessions shall not take further Cognizance of any Case or Crimes,
whereof there is not provition made in some Lawes but to remit the
case or Crime, with the due Examination and proof to the Next Court
of Assizes where matters of Equity shall be decided, or punishment
awarded according to the discretion of the Bench and not Contrary
to the known Laws of England.”[356]

This was amended at the court of assizes held in September, 1665, as
follows:--

“Where the Originall Point is matter of equity the proceedeings
shall bee by way of Bill and delivering in Answers upon Oath and
by the Examination of witnesses, in like manner as is used in the
Court of Chancery in England. And due regard must be had that the
Defendant have timely notice thereof, as is appointed at Common
Law; which is eight dayes warning before the Court shall sitt.”[357]

In the following February it was ordained that “matters of Equity
under five pounds may be tried in Town Courts and if under twenty
at Sessions.” This investing of the lower courts with equitable
powers was undoubtedly intended to lessen the hardship of seeking
relief in a distant court meeting but once a year, and its practical
application was probably limited to giving effect to the more obvious
equities of defendants. That such was the case, would appear from the
instructions of Governor Andros to the justices of the court at New
Castle dated August 14, 1677, in reply to a query on their part.

“As to penal Bonds or such like cases of Equity it is the custom
& practice of Courts here, to hear & judge thereof according to
Equity, w^{ch} you may also observe as Allowed by Law.”[358]

At the court for Deal, afterwards Sussex, County held Tune 13 and
14, 1682, Henry Stracher obtained a verdict against Peter Groundyk
in an “action of the case,” the nature of which is not disclosed,
whereupon--

“Peter Groundyk peticon the Court that he may have That was this
day Tryd betwene Henry Stracher Ant this peticoner to be Tryd in
Equiety, the next Court by bill and Answer as is use in the Court
of Chancrey in England which the Court would A perswaded him to A
dissisted in it; and rest himselfe satisfied in what was allready
done; but through his perswading the Court grant the peticoner
his request; provided that the proceeding be put in in due time
According to Law.”[359]

At the September court, however, nothing is recorded as to the
“Tryal in Equiety” which the justices seem to have been reluctant to
undertake.

There are also instances where the governor at New York assumed the
equitable power of granting relief against oppressive judgments at
law, of which the following order is an illustration:--

“By the Governo^r

Whereas Hendrick Jansen Van Bremen, of Swanyck or Paerden Hook,
near Newcastle in Delaware River, hath preferr’d a Petition unto me
setting forth, that having heretofore, in the Time of the Dutch,
received great Damage in his Corne, by M^r W^m Toms Horses, by
Reason of his insufficient Fence; It was Ordered, that M^r Toms
Land there, should be Sold in Vendue, which said Order being not
effected, The Petitioner since the Restoration of the English
Government, took the said Horses off his Land, and sent them to
M^r Tom at New Castle, desiring they might be kept from his Corne;
But the Petitioner still sustaining Damage, without Relief, he
acknowledges that in Passion, he rashly and unadvisedly, shot
one of the said Horses, with small shot, whereof he not long
after dyed; Whereupon M^r Tom Sued the Peticon^r in the Court of
Newcastle, from the which Appealing to the High Court, Judgment
past against the Peticon^r there for Six Hundred Guild^{rs} to
be paid by him to M^r Tom, for his Horse, besides One Hundred
Guild^{rs} Charges; But was neither call’d, nor heard there;
Wherefore I have thought fitt, & do hereby Order, that the said
Hendrick Jansen giving Security, by binding over his Person and
Estate, to make good his Complaint, That Execucon be Suspended; And
that all the Proceedings, Papers, Writings, Passages or Proofs,
both in Dutch and English Time, beforthwith Transmitted hither, for
a final Determinacon in Equity.

Given under my Hand in New Yorke this 25th day of May 1676.

E. ANDROS.

To the Justices of the Peace of Newcastle in Deleware.”[360]

A petition for equitable relief preferred by Arnoldus la Grange to
Governor Andros in connection with the litigation concerning the
title to Tinicum Island will be found in the archives, but the action
taken thereon by the governor is not recorded.[361]

With the further history of equity in New York we are not directly
concerned. By an act passed soon after the separation from
Pennsylvania a court of chancery was authorized but the law seems to
have been disregarded.[362] Lord Bellomont, the governor, writing
to the lords of trade October 19, 1700, says: “There is a great
want of a court of chancery here, but nobody here understanding it
rightly I delay appointing one till the judge and attorney general’s
coming from England.”[363] The lords, in reply, directed him to
establish the court at once and in the following year the court was
proclaimed by ordinance of his successor, Lieutenant Governor Nanfan.
Nothing, however, of importance seems to have been done and it would
appear that some of the governors disliked the responsibility. Lord
Cornbury, who was also appointed royal governor of New Jersey, wrote
to the lords of trade on May 7, 1711:--

“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
matters, having never in my life been concerned in any one suit. So
I earnestly beg your lordship’s directions as to that Court.”[364]

The court was also a favorite object of attack by the popular party.
Governor Hunter on January 1, 1712, wrote:--

“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.”[365]

In spite of this and similar attacks the court maintained its
existence until reorganized after the Revolution and adoption of
the constitution of 1777, but the amount of business transacted was
comparatively small until the time of Chancellors Livingston and Kent.

In Pennsylvania and Delaware, as we have seen, Penn took over the
local courts very much as he found them, exercising a supervisory
jurisdiction through the provincial council. On the hearing of
appeals before the latter body equitable principles were applied
as is illustrated by the case of _Bellamy_ v. _Watson_, described
in the court below as “an action of Trasspase and ejectment” for
land on Prime Hook. The case was tried at Lewes on May 27, 1683,
before a jury who found a verdict for the defendant.[366] The
plaintiff appealed to the governor and council who heard the case
in July and were unanimously of the opinion that one Smith, under
whom the defendant claimed, had no title in law or equity. They
entered judgment for the plaintiff, he to pay the defendant for his
improvements, the value of which was to be fixed by appraisers,
and gave the defendant four months’ time in which to remove his
crops, stock and “other moveable concernes.”[367] A year later it is
recorded that the difference between Watson and Bellamy was amicably
settled by mutual conveyances, “and thus they agreed & shaked
hands.”[368] In another case that came before the council, that body
seems to have been in doubt whether they ought to proceed in law or
equity, but the nature of the business is not given.[369]

By the Act of May 10, 1684, passed at New Castle, it was provided
that the “Quarter Sessions be as well a court of Equity as Law,
Concerning any Judgment given in Cases by Law capable of Triall in
the respective County Sessions and Courts,”[370] and by another
chapter of the same act a provincial court was constituted, the
judges of which were given cognizance of appeals and all causes
both in law and equity not determinable by the county courts. This
enactment seems to have caused some misgivings for in 1685 the
council “Ordered that a bill be drawn up That y^e Word Equity be
left out in ye Law off County Courts.”[371] The conception of equity
then entertained is illustrated by the following case taken from the
minutes of the court of common pleas of Chester County, where the
court sitting in equity, modified its own judgment previously entered
at law.

“Josua Hastings v. Francis Yarnall. The Declaration was read--the
answer was read. Judgment for plaintiff 25 shillings with costs of
suit. Upon which the defendant makes his appeal to the next court
of equity for this county.

1686 at a court of equity } Commissioners present, John
held at Chester ye 5th day } Bluston, Samuel Lewis, John
of the 1st week of ye 10th } Simcocke, Robert Wade, Geo.
month, 1686 } Maris, Robert Pile, Bartholomew
} Coppoche, Robert Eyre Clech.

Francis Yarnall of this county preferred a bill to this court
wherein he required a remedy against ye verdickt of Jury and
Judgment of court obtained against him by Joshua Hastings of ye
same county, at the last court of Common Pleas held for this
county, at Chester, the 3rd and 4th days of this present weeke.
Upon which it was decreed that Francis Yarnall should pay 10
shillings and bear half the charges of that court.”[372]

Such proceedings gave offense to the people, as unduly interfering
with the verdicts of juries, and in 1687 the assembly asked for a
conference with the council upon certain questions, among them “how
far y^e County Quarter Sessions may be Judges of Equity as well as
Law and if after a judgment in Law whether the same Court hath power
to Resolve itselfe into a Court of Equity, and Either Mitigate,
alter, or Revers y^e said Judgment.”[373] The council answered
evasively that the law made at New Castle “doth supply and answer all
occasions of appeal, and is a plainer rule to proceed by.”[374]

By the Act of May 10, 1690, it was provided that the county courts
“shall be Courts of equitie for the hearing and determining all
matters and causes cognizable in the said Court, under the value of
ten pounds,” and that the provincial court should have the hearing
and determining of all appeals from the county courts both in law and
equity.[375] This statute was substantially reënacted in 1693 during
the administration of Governor Fletcher of New York.[376] During all
this time there were frequent petitions to the council, for relief
against judgments of the courts, several of which were relegated to
the county or provincial courts for a hearing in equity.[377]

The relief given under the name of equity would seem to have been
similar to the discretionary powers of the courts now exercised on
rules to open judgments, or in controlling verdicts on motions for
new trials, and there is no trace of formal chancery proceedings.
Nevertheless the popular dislike of any interference with verdicts
is voiced in a further complaint of the assembly, in 1694, stating
that the judges had too great liberty to destroy or make void the
verdicts of juries and praying that they might be instructed not to
decree anything in equity to the prejudice of judgments before given
in law.[378] Even more vigorous would have been their remonstrance if
there had been an attempt to introduce real chancery pleading, but
this was foreign to the spirit of Penn’s legislation, which permitted
“all persons to freely appear in their own way and personally plead
their own cases themselves, or if unable, by their friends.”[379]

The prolonged controversy between the assembly, the governors and
the home government over the court laws that took place in the early
years of the eighteenth century has been sufficiently discussed
and will be referred to here only in so far as it affected equity
jurisdiction. The Act of October 28, 1701,[380] believed to have been
drafted by David Lloyd, contained this provision:--

“That the said justices in the respective county courts shall
have full power, and are hereby empowered and authorized to hear
and decree all such matters and causes of equity as shall come
before them in the 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 for the
said justices to force obedience to their decrees in equity, by
imprisonment or sequestration of lands, as the case may require.”

An appeal was given to the provincial court, which was empowered to
revoke, alter and confirm decrees according to equity and justice.

This act, which was repealed by the queen in council on February 7,
1705, because the lords commissioners for trade conceived that so far
from expediting the determination of lawsuits it would impede the
same,[381] attempted to introduce a more elaborate procedure without
actually committing the courts to the English practice, and, like all
half measures, would have led to confusion and litigation. One can
imagine the unlearned judges of the county courts deciding how much
chancery pleading was “proper in these parts.” There is no trace of
any proceedings had under its authority; in fact Chief Justice Guest
in 1703 made a complaint to the council--

“That notwithstanding y^e Laws of this Govmt had erected Courts of
Equity & y^e Justices, have a power also in their Commission for
y^e same: Yet that to y^e great oppression of y^e People, there
have been no such courts as yet held in pursuance of y^e present
Law, the Rules of y^e said Court not having yet recev^d so full a
sanction as tis thought may be requisite.”[382]

It was ordered that the rules should be produced at the next session
of the council, but nothing further appears to have been done until
September, 1704, when Guest moved that the rules agreed on by the
county court should be enforced in all the courts.[383] Finally in
the following April the rules prepared by “certain persons skilled in
the law” were laid before the council and approved,[384] but not long
afterwards the governor was notified of the repeal of the act.

The controversy that followed between the governor and council on
the one side and the speaker and assembly on the other was the first
real crisis in the history of equity in Pennsylvania. Lasting as
it did for three sessions of the legislature we can gather some
information as to the respective plans submitted for the organization
of the courts, although the text of the bills has not come down to
us. Chancery was the chief bone of contention. Governor Evans wished
to act as chancellor assisted by the council, in accordance with the
practice recently established in the crown colonies, and it would
seem that the assembly was at first inclined to yield this point
“provided that the court meddle not with matters wherein sufficient
remedy may be had in any other court”[385] whether by the rules of
the common law or the laws of the province. But the country members
were afraid that too much of the business of the courts would be
drawn to Philadelphia, and after some fruitless discussion the house
was dismissed and the matter postponed until the meeting of the new
assembly. This assembly was even more completely dominated by David
Lloyd, the speaker, than its predecessor and replied to the bill of
the governor, drawn up by the “practitioners of the law,” with a
“long and tedious bill”[386] of its own which appears to have been
a modified form of David Lloyd’s act of 1701 that had been rejected
by the Crown. The governor at once objected to the administration
of equity by county justices who had previously decided the same
question at law, to which the assembly replied that the council
should devote their attention to public affairs and leave private
causes to the justices--

“That the Court of Equity as proposed by the Bill, gives no Colour
of authority for the same persons to Judge twice of the same cause,
for that matters of Equity being originally begun there, and a
Clause particularly obliging them not to intermeddle with matters
of Law in the said Courts of Equity, and our Bill being warranted
in that point by an act of Parlia^{mt} which gives the Judges of
the Common Law Power to determine matters of Equity in the same
Sessions throughout the Dominion of Wales, We find no cause to
Recede from what we have already proposed.”[387]

To this the council quickly replied that it was wiser to follow the
practice of the “others of the Queen’s colonies” than to draw from
the court of the “Marches of Wales, which for its inconveniency, ’tis
said has been abrogated by act of Parliament.”[388]

This aroused the ire of the Welsh Speaker and back came the hot
reply that whoever had advised that any part of the law which
established courts in Wales was abrogated gave pernicious counsel to
the governor. Only that portion of the ordinance of Wales which gave
the president and council chancery powers had been suppressed, but
the settlement of chancery in the respective counties of Wales, the
foundation of the assembly’s bill had “had constant allowance since
the time of King Henry ye 8th.”[389]

The governor rejoined that “if there were any mistake in a matter
that is so foreign to us as the Courts of Wales, it might have been
hinted to the Gov^r in another language than calling it pernicious
council,” and again urged that the court of chancery be settled as
in other parts of the queen’s dominions.[390] The assembly remained
firm and were in a fair way to win this point, but the discussion
of other features of the bill became so acrimonious that finally
the house adjourned without passing any court law and the governor
established the courts by an ordinance which, incidentally, conferred
equity powers upon the county courts of common pleas and the supreme
provincial court.[391] The assembly vigorously protested that the
ordinance was illegal but no compromise could be effected and the
courts continued to sit by authority of the ordinance during the
remainder of Evans’s administration.

So far as equity was concerned, the anti-proprietary party had
achieved a distinct success and it is not a little curious that
this was, at least in part, due to the fact that their leader, a
Welsh lawyer, could cite the courts of his native principality as a
precedent for what he offered for adoption in Pennsylvania. Although
the subject is inadequately treated by text writers it would seem
that David Lloyd’s assertions were correct; that the court of the
lord president and the council in the principality of Wales and the
Marches had jurisdiction in cases of equity by force of the king’s
commission and instructions;[392] that this court was abolished in
1689,[393] and that equity jurisdiction was exercised thereafter by
the court of great sessions, the principal law court of Wales, which
was not visited by the English judges of assize.[394] The procedure
on the equity side of this court was by bill, answer and demurrer
in accordance with ordinary chancery practice, although somewhat
more dilatory than in the high court of chancery, owing to the long
intervals between circuit and circuit.[395] The jurisdiction of this
court was, however, not exclusive either at law or in equity.[396]

It is unfortunate that the early records of our courts have not been
preserved in such a condition as to afford much information regarding
the extent that equity was administered under this system, if at all.
In 1710 an “act for establishing courts of judicature” was passed,
which conferred appellate equity jurisdiction on the supreme court,
and original equity jurisdiction on the county courts of common pleas
with a proviso that--

“When matters of fact shall happen to arise upon their examination,
or hearing of the matters and causes to be heard and determined in
the said court, then and in every such case, they shall order the
matter of fact to issue and trial at the court of common pleas, for
the proper county, where the fact ariseth, before they proceed to
sentence or decree in the said court of equity.”[397]

This clause was largely responsible for the repeal of the act by the
queen in council, Lord Raymond, the solicitor general, having given
an opinion that it would “make proceedings in equity insufferably
dilatory and multiply trials at law in the plain cases to no manner
of purpose.”[398] Upon notification of the repeal Governor Gookin
revived the courts by an ordinance drafted by Robert Assheton which
contained the substance of the repealed act in a more concise
form.[399] When the assembly took into consideration the reenactment
of the court laws it was decided that separate laws should be passed
for each of the courts and further resolved “that all matters of
Equity, shall begin originally in the Provincial Court with Power
to grant Injunctions and to have general jurisdiction over the
Province.”[400] What brought about this change of opinion on the part
of David Lloyd, who was again speaker and principal draftsman of the
acts passed in accordance with the resolution on May 28, 1715,[401]
must be left to conjecture. Experience had perhaps taught him by this
time that the county courts were incapable of administering formal
equity. At any rate the county courts of common pleas ceased to
exercise chancery powers and the perpetuation of the Welsh system was
left to depend on the supreme provincial court, which received the
following chancery powers:--

“Section III. And be it further enacted by the authority aforesaid,
That the said judges of the supreme court are hereby also
authorized and enabled to hold plea in equity, by bill, appeal,
petition or suit, to be brought or exhibited in the said court by,
for or against any person or persons whatsoever, for any discovery,
or other matters relievable in equity; and thereupon to issue out
process of subpœna or _distringas_, and all other usual process
for compelling the parties defendants in such suits to appear, put
in their answers and make their defenses to such bills, appeals,
petitions (or) suits; and for the parties to proceed therein and
thereupon according to such rules or orders, and in such manner and
form as the courts of chancery and exchequer in Great Britain have
used to proceed by.

“And upon issues joined in any of the said causes or suits in
equity, the said court is to cause witnesses to be examined
if desired, on either side, by commissions to be awarded for
that purpose, or by sworn or attested examiners; and after the
publication of the depositions of the witnesses, to proceed to the
hearing of the said causes, and upon proofs and evidences therein
or thereupon, or upon bill and answer, where no witnesses shall be
examined, or proofs made, to make such orders and decrees either
for the r(elief of) the plaintiffs or for the directing any issue
or issues at law to be (tried) for the information of the court,
or for the dismissing of the said plaintiff’s bills or otherwise,
as the said court shall see just and reasonable, and as is or hath
been used in the said courts of chancery or exchequer in Great
Britain.

“And the said court shall award such process for the enforcing
the parties, in the said suits, to yield obedience to such orders
or decrees as shall be made in the said causes, and in case of
non-performance thereof, or disobedience thereto, the said court
shall award all such process of contempt against the persons
and estates of him or them that shall be in contempt or refuse
obedience to any of the said orders or decrees, and make and
execute like process, orders and proceedings thereupon, as are and
hath been used in like cases in or by the said courts of chancery
or exchequer in Great Britain; and that the prothonotary of the
supreme court shall be register of the said court of equity.”

Unfortunately, the Act of 1715 received scant consideration from the
lords commissioners of trade and was repealed by the king in council
on July 21, 1719.[402]

The notification of the repeal of this law was received at a time
when good feeling prevailed in the province. David Lloyd had been
appointed chief justice and had ceased to be a disturbing factor,
Andrew Hamilton, the bar leader of his time, was attorney general,
while Sir William Keith, the governor, was at the height of his
popularity. On May 3, 1720, the governor addressed a message to the
assembly in which he stated that, having consulted gentlemen learned
in the law, he was satisfied “that no representative body, in any of
his Majesty’s colonies, is invested with the power to erect such a
court, or that the office of chancellor can be lawfully executed by
any person whatsoever, except him, who, by virtue of the great seal
of England, may be understood to act as the King’s representative
in the place.” On the following day the message was considered by
the assembly and it was 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.”[403]

At a meeting of the council on August 6, 1720, the governor brought
the matter to the attention of the members who resolved:--

“That it is the Opinion of this Board, that by virtue of the
Powers granted by the Royal Charter to the late Proprietor, his
Heirs and Assigns, and to his and their Lieutents. or Deputies,
being regularly appointed, the present Governour William Keith,
Esqr., safely may comply with the Desire of the Representatives of
the ffreemen of this Province, signified to him by an unanimous
Resolution of their House, dated at Philadelphia the 4th day of
May last, 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 neighbouring Governments.

“But the Governour speaking to his own want of Experience in
Judicial Affairs, and representing to the Board the great Addition
of Attendance and Fatigue in the public Business which would be
thereby laid upon him, He was pleased to add nevertheless, that
considering the many marks the House of Representatives and this
Board had shewn of their Confidence in him in this as well as
divers other respects, He should not decline to serve the Publick
in that Station, but insisted on this, that as no Court of Chancery
could by the method proposed be held without him, So that He, on
the other hand, should not fail of having a due assistance from the
Council on their parts; And it was thereupon, at the Governours
desire, established and declared.

“That as often as the Governour is to sit in Chancery and hold a
Court, All the members of Council in or near Philadelphia, shall
be summoned to attend the Governour as his assistants upon that
Bench, and that there shall not any Decree be pronounced or made in
Chancery but by the Governour as Chancellor, with the assent and
concurrence of any two or more of the Six eldest of the Council
for the time being, And that those Six eldest Counsellors or
assistants, or any of them, may be employed by the Governour as
Masters in Chancery, as often as Occasion shall require.

“And that the Inhabitants may have due notice of the said Court,
it is ordered that A Proclamation be issued certifying all his
Majestys Liege People of this Province, that for the more equal
Distribution of Justice and the Conveniency of the Subject, a
Court of Equity or Chancery will be opened by the Governour, at the
Court House in Philadelphia, upon the 25th day of this instant,
August, in order to hear and judge of all such matters within this
province, as are regularly cognizable before any Court of Chancery,
according to the Laws and Constitutions of that part of Great
Britain called England, and that the said Court will be always
open for the Relief of the Subject; Whereof his Majestys Judges of
the Supreme Court, and the Justices of the inferiour Courts, and
all others whom it may concern are to take Notice, and to govern
themselves accordingly.”[404]

Four days later the following proclamation was made:--

“COURT OF CHANCERY.

“By William Keith Esqr. Govern^r Of the Province of Pensivania
& Counties of New Castle, Kent & Sussex, upon Delaware. A.
Proclamation.

“Whereas Complaint has been made, That Courts of Chancery or Equity
are absolutely necessary in the Administration of Justice, for
mitigating in many cases the Rigour of ye Laws, whose Judgments
are tied down to fixed and unalterable Rules, and for Opening away
to the Right and Equity Of a Cause for which the Law cannot in
all cases make a Sufficient Provision. Have notwithstanding been
but toe seldom regularly held in this Province, in such a manner
as ye aggrieved Subject might obtain the Reliefe which by such
Courts ought to be Granted. And Where as, the Representatives of
ye Freemen of this Province taking ye same into Consideration, did
at their last meeting in Assembly request me that I would with ye
assistance of ye Council, Open and hold such a Court of Equity for
this Province, To ye end therefore that his Majesties good Subjects
may no longer Labour under these inconveniences which are now
Complained Of, I have thought fitt, by and with the advice of the
Council, hereby to Publish and Declare, That with their assistance
I Purpose (God willing) to open and hold a Court of Chancery or
Equity, for this Province of Pensilvania, at ye Court House of
Philadelphia, on Thursday the Twenty fifth day of this instant
August, From which Date the Said Court will be and remain Always
Open for the Reliefe of ye Subject, to hear and Determine all such
matters arrising within the Province afores^d, as are regularly
Cognizable before any Court of Chancery, According to ye Laws and
Constitution of that part of Great Britain called England. And
his Majesties Judges of his Supream Court, as well as ye Justices
of the Inferior Courts, and all others whom it may Concern,
are required to take Notice hereof, and to govern themselves
Accordingly. Given at Philadelphia, ye tenth day of August, in the
Seventh year of the Reign of our Sovereign Lord George King of
Great Britain, France & Ireland, Defender of the Faith &c. Annoq.
Domini 1720.

“God Save the King.

“W. Keith.”[405]

A few days later the assembly took into consideration the governor’s
proclamation and on the twenty-eighth of August extended to him their
thanks for his message and requested that he should choose as his
assistants those who had not heard the cases before in the inferior
courts, to which the governor readily assented and in this auspicious
manner was established the first and only separate court of
chancery in Pennsylvania. When the common law courts were once more
established by the Act of May 22, 1722,[406] no equity jurisdiction
was conferred upon either the supreme or county courts.

On the twenty-fifth of August, 1720, Sir William Keith qualified as
chancellor and appointed Charles Brockden registrar. James Logan and
five other members of the council were named as masters and from time
to time thereafter other appointments both of masters and examiners
were made. The proceedings of the court, long buried in oblivion,
are not referred to in the reported cases, and the only allusion to
them by an early historian is a statement by Proud that John Kinsey,
afterwards chief justice, was compelled by Sir William to take off
his hat when addressing the court, an act which brought upon the
governor a remonstrance by the quarterly meeting of Friends.[407]
Thanks to the perseverance of William Henry Rawle, Esq., a portion of
the records of the court were found in a folio volume that had lain
neglected for many years among the unpublished archives of the state
department and which proved to be the registrar’s book. A critical
examination of the cases contained in the register will be found in
Mr. Rawle’s admirable address on Equity in Pennsylvania, delivered
before the Law Academy of Philadelphia in 1868.[408] Among the cases
in which the court of chancery exercised jurisdiction were bills for
account and for partition; to subject land to the payment of debts
and legacies; to stay waste; to restrain proceedings at law; to take
the testimony of witnesses in foreign parts; to settle differences
between partners; petitions for writs _de lunatico inquirendo_, and
for writs _ne exeat provincia_.[409] The frequent use of the last
named writ is interesting. Confined in its original application
to cases involving the safety of the realm, its use had, in time,
extended to private causes as a means of procuring equitable bail.
The departure of a litigant out of the jurisdiction of the court
without security for his appearance was a serious matter indeed in
days when communication between Europe and America was slow and
difficult.

The case of _Cole_ v. _Wathell_[410] is curious, as an application
to chancery in an admiralty cause. The complainants, part owners of
a ship, filed a petition setting forth that the defendant, also a
part owner, had refused to join with them in fitting out and loading
the vessel for a proposed voyage, that she was about to sail for the
Barbadoes and there being no person in this government acting as
judge of vice-admiralty, they were obliged to apply to the governor,
as chancellor, for equitable relief and praying that, “according to
the custom and usage in such cases,” the chancellor would appoint
appraisers, to value the defendant’s interest, they being willing to
account to him for the appraised value. The defendant was given time
to dispose of his interest or join in fitting out the ship, but he
left town without leaving any notice of what he had done or intended
to do, whereupon an order was made appointing three appraisers, who
filed a return valuing the defendant’s interest at “two hundred
and forty pounds current money of Pennsylvania.” In _Blad_ v.
_Bamfield_,[411] Lord Nottingham said: “I took this occasion to show
that, the court of chancery hath always had an admiral jurisdiction,
not only _per viam appellationis_, but _per viam evocationis_ too,
and may send for any cause out of the admiralty to determine it
here.” On several other occasions the lord chancellor asserted and
enforced this concurrent jurisdiction, which extended at least to
cases of depredations on the sea, and has long been deemed obsolete,
so that it is quite possible, although by no means certain, that a
knowledge of these seventeenth century precedents may have induced
the complainants in _Cole_ v. _Wathell_ to seek relief in chancery.

From the minutes in the register it would appear that the cases did
not proceed with much rapidity, in fact many of them were before the
court for several years, delayed by all sorts of dilatory motions.
In a partition case[412] one of the defendants was particularly
obstinate. Having refused to appear in response to a subpœna and
_alias_ subpœna, he was attached and remained in jail from June,
1733, to November, 1734, when counsel for complainants moved that the
bill be taken _pro confesso_ against him. He was then set at liberty
and ordered to prepare an answer within a month, which he declined to
do, whereupon the court proceeded to a hearing and entered a decree
for partition and mutual conveyances. This he declined to obey and
in the archives will be found the proof of service of notice on him,
with his answer that “he had been informed that there was a decree
against him but that he did not care.”[413] A writ of partition then
issued, the nature of which is not explained.

The counsel practicing most frequently in the court were Andrew
Hamilton, Joseph Growdon, John Kinsey and Peter Evans. Of the cases
recorded only two were decided by Sir William Keith, who was removed
by the proprietors from the office of governor in 1726 after a
quarrel with Logan. His successor, Patrick Gordon, upon being applied
to by the parties to proceed with several cases before the court,
hesitated to act until he had consulted with the council as to his
authority. The matter was debated and the governor assured that he
might legally assume the duties of the office, whereupon he took the
oath as chancellor.[414] It was further proposed that rules should
be drawn up for the better regulation of the court and the speedier
dispatch of business, and David Lloyd, the chief justice, and Andrew
Hamilton were named for that purpose.

So far as can be discovered the practice in the court followed that
of England. Suit was commenced by bill; a _subpœna ad respondendum_
then issued; an answer or demurrer was filed by the respondents;
testimony was taken before examiners, or the matter referred to one
of the masters; injunctions were issued and decrees enforced by
attachment. On the whole, considering the number of years the court
was in existence, the amount of business brought before it was small.
Undoubtedly the tedious and technical character of the proceedings,
their expense and the fact that the sittings of the court were
dependent upon the convenience of the governor, tended to discourage
litigants from seeking legal redress through such a channel.

In 1736 the silent dislike with which the court was regarded
changed into open hostility. Perhaps the contagion, if it may be so
described, spread from New York, where, in 1735, the general assembly
had resolved that the court of chancery held by the governor without
their consent was “contrary to law, unwarrantable, and of dangerous
consequence to the liberties and properties of the people.”[415]
Petitions were presented, signed by inhabitants of Philadelphia,
Bucks and Chester counties, complaining to the assembly that the
holding of a court of chancery before the governor and council was
contrary to a clause in Penn’s charter of privileges which provided--

“That no person or persons shall or may, at any time hereafter,
be obliged to answer any Complaint, matter or thing Whatsoever
Relating to Property before the Govern^r and Council, or in any
other place but in the ordinary Courts of Justice, unless appeals
thereunto shall be hereafter by Law appointed.”[416]

Even before the meeting of the assembly the subject had been taken
up by the press and a spirited controversy had been carried on by
contributors to the _Mercury_ and the _Gazette_.[417] The assembly
sent a message to the governor requesting information as to how
the court of chancery was constituted,[418] and on March 27, 1736,
resolved, “That the court of chancery as it is at present established
is contrary to the charter of privileges granted to the freemen of
this province.”[419] It was then resolved that the justices of the
county courts be given power to determine all suits in equity under
one hundred pounds, that a supreme court of equity should also be
established, to which appeals might be taken from the inferior courts
and which should also have original jurisdiction in all matters of
equity “_prima instantia_” when the value of the claim exceeded
one hundred pounds. The judges of this court were to consist of
three persons, to be commissioned by the governor out of any six
that should be nominated by the house. A bill was framed to this
effect.[420]

The charge that he was violating the charter angered Governor
Gordon and it was ordered that a vindication of the proceedings of
the governor and council be prepared and published. Accordingly a
voluminous report was drawn up by James Logan, giving a history of
the establishment of the court, which, he said, was erected at the
request of the assembly upon the best legal advice that could be
procured, “particularly that of our then Attorney General, Andrew
Hamilton, Esq., who was esteemed and allowed to be as able in that
Profession as any on the Continent of America,”--a fling at Hamilton,
who as speaker of the assembly was now leading the opposition to the
court. The report went on to argue that the word “property” as used
in the charter had reference to the proprietary grants and that a
court of chancery was an “ordinary court of justice.” It concluded--

“The Assembly however may be assured, that none of the Council
are fond, or in the least desirous, of the Employment, and if the
Governor shews any Inclination the Court should be continued on
the same Foot, we are perswaded it can be from no other Inducement
than his Desire to preserve Decency and Order, and some Resemblance
between this Government and all the other British Ones in
America.”[421]

The assembly replied that they intended no offense to the governor
or his council and were surprised at their resentment; that a vote
of the house was not sufficient to raise a court nor was the opinion
of one or more lawyers, who were left to answer for themselves, or
the silence of subsequent assemblies of any consideration in the
case; that they were sorry to see gentlemen of such penetration as
the members of the council resigning away the common sense of the
charter; that great men and even courts were often mistaken as to
their own jurisdiction; that it had been decided in England that a
court of equity could not be established except by act of parliament,
and if the king could not raise such a court how could the deputy
of the king’s patentee do so? They further hoped to be pardoned for
saying that, in their opinion it would have been more reasonable if
notice had been taken of their resolution in time to save them the
trouble of preparing the bill relating to courts of equity, which had
long lain before the governor unapproved although the session of the
assembly was drawing to a close.[422]

Here the controversy was dropped, the assembly soon after adjourned
and the governor continued to act as chancellor until his death
in the following summer. The matter seems to have disturbed the
proprietary party, for a case was stated presenting all the facts
and the opinions taken of the Solicitor General, Sir Dudley Ryder,
and the Attorney General, Sir John Willes, upon the legality of the
court. They held, in effect, that the king had power, in erecting a
new form of government in Pennsylvania, to authorize Penn to erect
courts of equity and that the consent of the legislature was not
necessary until Penn had made it so by the charter of 1701; that the
unanimous resolution of 1720 was a sufficient declaration of the
assent of the legislature to the erection of the court, and that
the court could be lawfully held until the whole legislature passed
an act to the contrary.[423] Nevertheless, Logan, who as president
of the council administered the government for two years, probably
felt that the office of chancellor was outside of the scope of his
temporary duties and when Thomas was appointed lieutenant governor,
in 1738, the court was not revived. The proprietors were unwilling
to give up the court and refer to the matter several times in their
correspondence. “We desire,” wrote Thomas Penn to Mr. Peters,
September 28, 1751, “that the court of chancery may be established
in a manner most favorable to the people, without giving up the
king’s prerogative with which we are entrusted, we should have
some share of influence, else the trial would not be equal. We are
willing, however, that the assembly should regulate the court.”[424]
Nevertheless the assembly continued its opposition until the end of
the proprietary government.

Thus, in the words of Horace Binney, Pennsylvania lost this system of
justice because “her governors and representatives could not agree
by whom the office of chancellor should be held.”[425] The same
dispute occurred in the other colonies and was settled according to
the exigencies of local politics. There is no indication, however,
of any real dislike on the part of the people to the principles of
equity; in fact the petition from Bucks County against the governor’s
court distinctly demanded that some provision be made for such as
want relief in equity, by the erection of courts of equity “more
convenient for their attendance and less expensive to those who may
have business there.” While that from Chester County requested--

“That some Provision suitable to the Circumstances of the people
may be made for such as want Relief in Equity, without being
obliged to travel from the remotest parts of the Province to
Philadelphia, & there to attend that Court at a very great & heavy
Expence, Which Proceedings, as the Business of that Court does
Increase, will undoubtedly become a very great Grievance to the
People.”[426]