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Bland's Reports, Chancery Court 1809-1832
Volume 201, Page 624   View pdf image (33K)
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A salary, just in amount, shall be secured to the Chancellor
during the continuance of his commission, it is said, " in such

in 1768,) the governor, or the governor and council are the chancellor, or judges
of the court of chancery. But so long as I understand that the governor is, by his
general instruction, upon sound principles of policy and justice, restrained from
exercising the office of judge or justice in his own person, I own I always consid-
ered the governor, taking up the office of chancellor, as a case labouring with inex-
plicable difficulties. How unfit are governors in general for this high office of law;
and how improper is it that governors should be judges, where perhaps the conse-
quence of the-judgment may involve government, and the administration thereof, in
the contentions of parties. Indeed the fact is, that the general diffidence of the wis-
dom of this court thus constituted, the apprehension that reasons of government may
mix in with the grounds of the judgment, has had an effect that the coming to this
court is avoided as much as possible, so that it is almost in disuse, even where the
establishment of it is allowed. But in the charter governments, (New England and
Pennsylvania,) they have no chancery at all." "This introduced a practice, (in
New England,) of petitioning the legislative courts for relief, and prompted those
courts to interpose their authority. These petitions becoming numerous, in order to
give the greater despatch to such business, the legislative courts transacted such
business by orders or resolves, without the solemnity of passing acts for such pur-
poses; and have further extended this power by resolves and orders, beyond what a
court of chancery ever attempted to decree, even to the suspending of public laws,
which orders or resolves are not sent home for the royal assent."—(Pown. Adm.
Colo. 110; See Constitution of New Jersey, art. 8.)

Upon a complaint made, on the 6th of November 1735 to the General Assembly
of New York, they, among other things, resolved, " that a court of chancery, in
this province, in the hands or under the exercise of a governor, without consent in
General Assembly, is contrary to law, unwarrantable, and of dangerous consequence
to the liberties and properties of the people."—(1 Smith's His. N. York, 386.)

Under the proprietary government of Maryland the chancellor of the province
was sometimes constituted by a formal commission from the Lord Proprietary;
( Chan. Proc. lib. P. L. fol. 488, 717.) but most usually, as it would seem, by a delivery
of the great seal by the Lord Proprietary in person, or by, or in the presence of the
council. The governor for the time being was, in several instances, by the same
commission also constituted chancellor and keeper of the great seal of the Province.
The first provincial governor, by his commission bearing date on the 15th of April
1637, was constituted governor, lieutenant general, chief captain, and commander.
as well by sea as by land, and also chancellor, chief justice, and chief magistrate
within the province, (1 Boz. His. Mary. 291.) A similar commission was granted
by the Lord Proprietary on the 18th of September 1644. (Land Records, lib. 1,
folio 195.)

But although for some time after the settlement of the country, the governor was
invested with a variety of military and civil offices, yet he was not permitted to act
of himself in all respects and alone in any one of them. As governor there were
few powers which he could exercise without the advice and consent of the council
who were placed about him; and as chancellor he could do no act but as a court
sitting with his assistants. (1 H. & McH. 6 & 165; 4 H. & McH. 477.) In a peti-
tion in the case of Nicholas Painter and wife against Samuel Lane in chancery
addressed to the Lord Proprietary in June 1681 it is said, "that the court of chan-
cery is and ought to be always open as to the proceedings therein; but your lordship


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Bland's Reports, Chancery Court 1809-1832
Volume 201, Page 624   View pdf image (33K)
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