On the sixteenth of February, in the above year, the first Court of Chancery was held by the Governor and Council, the terms thereafter being on the first Thursday of every other month during the year.

In the act of 1691, passed by the General Assembly convened by Governor Sloughter in the commencement of that year, was a provision for a Court of Chancery, the same as in the act "to settle courts of justice."

The act of 1691 was limited to two years, but the judicial organization under it was (with some changes) continued by three other acts till April, 1698, when the organization ceased with the expiration of the last act. But although the other courts were revived by an ordinance of Governor Bellamont and Council in 1699, there was no organization of the Court of Chancery until 1701, when Lieutenant-Governor Nanfan, under an order from the Lords of Trade, established a court by an ordinance issued on the second of April of that year, to be held by the Governor and Council, or any two of the board, on the first Thursday of every month. He also appointed masters, clerks and a register. The court was opened on the first Thursday in September of said year."

The General Assembly, questioning the right of the crown to establish an equity court in the colony, commenced an opposition against it. An opposition to the court had long existed among the people, and continued for years after this act of the Assembly, if it ever entirely ceased. Public complaint was made from time to time, not only as to the erection of the court, but the exorbitance of the fees and the unjustness of the decrees.

This opposition was not against a Court of Chancery as such. On the contrary, a court of that character was considered necessary, as is shown by the address of the General Assembly in 1737, when George Clarke was Governor; and by the declaration of the historian, Smith, that "a Court of Equity is absolutely necessary, but whether private property ought to be in the hands of the Governors I leave others to determine."*

1 Smith's History, N. Y. (Carey's ed.), p. 113.

2 Letter of Attorney-General Sampson Shelton Broughton to the Lords of Trade. Lond. Doc., 914; Col. Doc., vol. 4.

Smith, pp. 274, 276.

The opposition was directed against the erection of the court by ordinance of the Crown and the Governors acting as Chancellors, the inhabitants being of opinion that the creation of the court should be by act of the General Assembly of the Province.

In June, 1702, by an ordinance of the Governor (Lord Cornbury), in Council, the Court of Chancery was suspended until the Chief Justice and Second Justice of the Supreme Court reported "such method as would render the said court most useful and least burthensome to the subject," and also a just and reasonable table of fees. In February, 1703, these officers made their report, and laid before the Governor a table of fees "by them made and moderated." Consequently Lord Cornbury, by an ordinance in November following, revived and established the said court according to the method of the High Court of Chancery in England.

Such was the feeling against the suspended tribunal, that in November after the ordinance of June, 1702, a bill passed the General Assembly "to declare the illegality, and frustrate the irregular proceedings, extortions and decrees of the late pretended Court of Chancery."

In the Assembly which met in August, 1708, the Committee of Grievances reported, among other resolutions (leveled against the administration of Lord Cornbury, who continued as Governor until the arrival of Lord Lovelace in December following), one declaring "that the erecting a court of equity without consent in General Assembly is contrary to law, without precedent, and of dangerous consequence to the liberty and properties of the subjects."

In 1711, Governor Hunter (who had arrived the year before, as the successor of Lord Lovelace) began to exercise the office of Chancellor, having, in October of that year, appointed two masters, a register, an examiner and two clerks, and proclaimed the sitting of the court to be on Thursday of every week.*

The Assembly upon this reiterated the resolution of 1708, and remonstrated to the Lords of Trade, who, however, in a letter

1 2d Vol. Revised Laws 1813, Appendix.

2 Journal General Assembly, New York, vol. 1, p. 157.

3 The same, vol. 1, p. 224.

* Smith, p. 148. (Carey's ed.)

to the Governor, approved his conduct, blamed the Assembly, and declared the right of the Crown to the erection of an equity court. The court was continued for sixteen years subsequently without interruption, although the colonists manifested, throughout that period, their hostility to it.

In November, 1727, a report was made by the Committee of Grievances in the General Assembly, reflecting severely upon the court, its arbitrary and tyrannical conduct; that its extraordinary proceedings and extortionate fees were the greatest grievance and oppression the Colony had ever felt. The dissolution of the Assembly by Governor Burnett alone prevented that body from passing an act declaring null and void all the court's proceedings.

An ordinance, however, was made in the following spring, remedying the abuses in the practice of the court and reducing very materially the fees.

Governor Montgomery, who succeeded Burnett in 1728, assumed the duties of Chancellor with great reluctance.'

The opposition to this tribunal still existed in the General Assembly and among the people.

Sir Joseph Eyles and others filed a bill in the Court of Chancery to vacate the Equivalent land' or Oblong Patent, granted to Hauley and Company by Governor Montgomery, the complainants claiming under a prior patent, granted May 15, 1731, in London. The defendants, proprietors of the lands (50,000 acres), by Messrs. Alexander and Smith, who were also interested in the Hauley Patent, excepted to the jurisdiction of the Governor as Chancellor; the exception was overruled, and the defendants (about fifty in number), in October, 1735, petitioned the General Assembly, stating they conceived the filing the bill, as aforesaid, unwarrantable, of dangerous consequence to them and to the liberties and properties of the people, and prayed the house to protect them and the said people. The excitement against the court was stimulated by Alexander and Smith. Petitions were also

See the admirable "Historical Sketch of the Judicial Organization of New York," by Charles P. Daly.

2 So called because ceded by Connecticut in consideration of a like quantity of land yielded to that colony by New York, upon the settlement of their respective boundaries in 1731. Record Commissions, vol. 4.

presented to the Assembly by the inhabitants, requesting the dissolution of that body, urging frequent elections as a great privilege, which petitions were seconded by the unanimous order of the Assembly, and delivered to Governor Cosby.

The latter, however, refused to dissolve the Assembly, and it, in November of the above year, on the report of the Committee of Grievances, that they had considered the petition of the defendants in the matter of the Oblong Patent, and by their recommendation, resolved "that the Court of Chancery in the hands or 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."

1

In September, 1737, on the occasion of a bill being introduced for the frequent elections and meetings of the General Assembly, an address was presented by that body to Governor Clarke, in which they reiterated their complaint of a Court of Chancery being erected by ordinances of the Governors, and their conviction it should be by act of the General Assembly; and also of the inefficiency of many of the Governors holding said court."

From this time, the Assembly ceased their attacks upon the Court, and it was held regularly until the Revolution.

From the commencement of a Court of Chancery in the Province, no Chancellor was appointed. The Governors acted as such, sometimes assisted by the Chief Justice and Justices of the Supreme Court, generally members of the Council, or by one or more of these Judges, together with the legal members of the Council.

Generally, however, the Governors acted as sole Chancellors, and those who succeeded Sir Charles Hardy (who arrived in 1753, and who associated the Supreme Court Bench with him in his equity duties) entirely so, down to the end of the Colonial period.

At the breaking out of hostilities in the spring of 1775, a Provincial Congress for the Colony of New York assembled, composed of delegates from the various counties. A second, third and fourth Congress were held. The latter, which convened July 9th, 1776, changed its name the next day (on the receipt of the Declaration of Independence of the fourth of that month, passed by

1 Journal General Assembly, vol. 1, p. 687. 2 Journal General Assembly, vol. 1, p. 707.

the Continental Congress), to "Convention of Representatives of the State of New York." On the 20th of April, 1777, the Convention adopted the first Constitution of the State. In this Constitution. mention is made of the Court of Chancery as an existing court.

On the eighth of May following, the Convention adopted a plan for organizing a temporary form of government until the Constitution could be carried into effect by the election and appointment of the officers provided in that instrument. As many of the officers were immediately necessary for the execution of the laws and for holding the elections, they were appointed in the above plan. Thus Robert R. Livingston (having been elected by the Convention, on the third day previous to the eighth, to the office) was appointed the first Chancellor of the State. On the seventeenth of October succeeding, he was commissioned as such by the Council of Appointment, the elections under the Constitution having taken place during the summer, and the Legislature having assembled on the ninth of September at Kingston.

On the 22d of June, 1783, Chancellor Livingston was reappointed, from doubts whether, by his acceptance of the Secretaryship of Foreign Affairs in 1781, he had not vacated his Chancellorship.

On the 28th of October, 1801, Mr. Livingston, having resigned his office on being appointed Minister to France, was succeeded by John Lansing, Jr., who was succeeded in turn on the 25th of of February, 1814, by James Kent.

In 1814 (April 13th), the Reporter of the Supreme Court was also made Reporter of the Court of Chancery.

The Constitution of 1821 provided that equity powers should be vested in the Circuit Judges created by that instrument, subject to the appellate jurisdiction of the Chancellor. In accordance with this provision, an act was passed on the 17th April, 1823, conferring on the Circuit Judges (eight in number) concurrent jurisdiction with the Chancellor of all matters and causes in equity, subject to the latter's appellate jurisdiction; authorized each Judge to appoint a clerk for the Court of Equity to be held by him, which clerk should also perform all the duty of register of said court; and provided that the Judges should devise a seal for the clerks in all equity proceedings.'

1 Sections 10, 11, 12 of chapter 182, Laws 1823.