• JOHN CRUGER Esq Foreman,
• Mr. Robert Watts,
• Mr. John Moore,
• Mr. Phillip French,
• Mr. Henry Cuyler,
• Mr. Enoch Stevenson,
• Mr. James Searle,
• Mr. Semeon Senmain,
• Mr. Peter Schuyler,
• Mr. Abraham Van Wych,
• Mr. Paul Richard,
• Mr. Jacob Goelet,
• Mr. Christopher Bancher,
• Mr. Anthony Dwane,
• Mr. Thomas Lynch,
• Mr. Abraham Borlen,
• Mr. Harmanus Rutgers,
• Mr. David Provoost,
• Mr. William Hamersley.

Gentlemen of the Grand-Jury;

YOU must have observed, that of late there have been several Papers printed, with a Design and a Tendency to alienate the Affections of His Majesty's Subjects of this Province from the Persons whom His Majesty has thought it fitting to set over them; and in particular, some Men with the utmost Vir [...]ency have endeavoured to asperse his Excellency and vilify his Administration; they have spread abroad many seditious Libels, in order to lessen in the People's Minds the Regard which is due to a Person in his high Station. This malevolent Practice Gentlemen, has laid me under the Necessity of setting before you the Law in relation to Libels. And as ye are Gentlemen of Understanding and Integrity, and who will pay a due Regard to the Oaths ye have taken, I make no question, but you will take such Notice as becomes you, of the Person who has had the Presumption to print them. The Authors are not certainly known, and yet it is an easy Matter to guess who they are, that by making Use of Mr. Van Dam's Name, have gain'd some credit among the common People, which they were not wont to have, and never thought to have deserved.

LIBELLING a Person in so high a Station as that of the Governor is of the more dangerous Consequence, because without his Concurrence, (as He is the King's Representative here) we cannot leave such good and wholesom Laws, as this Colony stands in need of; and certainly if he be libelled, and Endeavours be used to vilify his Person and Administration, and the Authors and Publisher be suffered to go on with impunity in such Practices, we shall scarcely find him in a suitable Temper to pass such Laws for the publick Good as shall be laid before him.

IT is a difficult Thing to say what some Men would be at, or what it is will please them; some Particulars of his Excellency's Conduct in this City were said to have given Offence, upon some of his Friends representing to him what would be acceptable to the People in general, he made an Alteration in those Points: And yet this too, is a subject for these Men's Dislike, so that which way soever he acts, they are resolved to clamour: And in good Truth, now they have the greatest Reason to be dissatisfied, since they find that his Excellency is determined to do that which will be agreeable to the People, they are sensible he will by these Means effectually defeat their Measures and render all their Schemes abortive.

THE Malice of these Men stopt not here; they have condescended to come a Step lower, and have been pleased to point out several of the Gentlemen of the Council, who happen to have Places of Trust under His Majesty in this Pro­vince: I suppose they would suggest by this, they are so mercenary and so aban­doned as to betray the Country and give up the Publick for the Sake of them. As for my own part, I am very easy under these Reproaches; I am assured my Conduct in that or any other Station can stand the Test of their most malitious Inquiry: To make their Work compleat, the Judges of this Court have also had the Honour to be the Objects of their Resentment, for surely it cannot be a Dishonour to an honest Man to meet with the Anger and Ill-will of some Men. They have endeavoured by all kinds of Arts to make the People uneasy at the Court of Exchequer, and I suppose buoy themselves in their prosperous Mischief; But I am persuaded, that any Uneasiness, which is conceived at it, will in a little Time wear off and vanish, as it is altogether owing to the most unjust Mis­representation of its Jurisdiction, as if the Exercise thereof in a Court of Equity would take away that inestimable Privilege of Trials by a Jury. This Gentle­men, is a wicked Insinuation made use of to inflame the Minds of the common People, and to render the Persons of the Judges, who gave their Opinions in support of this Jurisdiction, odious to them. But I depend on it, that the Force of Truth will in a little Time remove the groundless Jealousies that have been raised on this Occasion, by the Craft of evil-minded Men, who enraged [Page 3] at their own Disappointment care not into what Disorders they bring us, to obtain their Ends.

THE Prejudices conceived against this Court oblige me to say something to satisfy the Scruples that have industriously been raised in some Men's Minds concerning it.

THE Court of Exchequer in England, in which the Barons are Judges, is chiefly a Court for the King's Revenues, and has Cognizance of Pleas at the common Law, and a Power of determining Causes in a Course of Equity by English Bill; These are the judicial Powers of the Barons, and have been so Time out of Mind, and their Authority to determine Causes in Equity doth not arise from the Stat. 33. H. 8. as some hold; this appears in the 4 Inst. 119. We there find, that the Commons petitioned in 2 H. 4. (which then was the Method used in making Acts of Parliament) that no Writs or Privy-Seals be sued out of the Chancery, Exchequer, or other Place to any Man to appear upon Pain, &c. to answer, &c. contrary to the ordinary Course of the common Law: Whereunto the King answered, That such Writs should not be granted without Necessity. This Writ To appear upon Pain, is the Subpaena, which is the leading Process in a Court of Equity. But this did not pass into a Law. In the third Year of H. 5. the Commons petitioned, that all Writs of Subpaena and Certes de causis going out of the Chancery and the Exchequer might be enrolled and not granted of Matters determinable at the common Law on Pain of Forty Pounds. The King's Answer was, T [...]t he would be advised: Which is denying the Royal Assent to pass it into a Law. Hence it is evident, that the Court of Exchequer as well as Chancery did proceed in a Course of Equity above One hundred Years before the making of this Statute 33 H. 8. which is said to give Birth to this Branch of its Jurisdiction; so that it must have been Time out of Mind, since as My Lord Coke observes, 4 Inst. 119. We find no former Act of Parliament that doth create and establish it. Plowd. Com. 321. It is said, the Exchequer hath a Chancellor and Seal, and the Writs usual in the Chancery in the Exchequer to seize Land are more antient than the Register or the Treatise of Praerogativa Regis Upon which My Lord Coke's Observation is this; Hereunto it is collected, that seeing there hath been Time out of Mind of Man, a Chancellor of the Exchequer, that there should also be in the Exchequer a Court of Equity. For these Reasons we may conclude, that this Court did not derive its Jurisdiction in Equity from that Statute, but from the common Law.

AS to the Stat. 33 H. 8. it may be said to consist of two Parts, the one for the Benefit and Advantage of the King, whereby a new Provision is made for the levying of the Kings Debt in a more speedy and effectual Manner, than the King had before: The other Part, is for the Benefit and Advantage of the Sub­ject, and gives him a Remedy where he had none before, and enables him, if he has any Matter, in Law, Reason, or good Conscience, to bar or discharge the Kings Debt, to shew or plead the same, which by the common Law he could not do. All which appears in Sir Tho. Cecil's Case, 7 Rep. 18 b. Where although the Covenant and Obligation of Sir Thomas was broken and fotfeited by the Rigor of the Common Law, yet as he had Matter in Reason and good Con­science to discharge himself, he by exhibiting his English Bill in the Exchequer was relieved against the Queen's Demand by Virtue of this Statute; so that this Statute gives the Subject a Remedy in Equity in the Exchequer, which he had not before. And these were the Ends for which this Statute was made.

AS for the Court of Exchequer here, I shall give you, Gentlemen, the ge­neral Reason upon which it is grounded, without descending into many Particulars; but before I come to that, it may not be improper to observe, That Courts for the due Administration of Justice are essential to every Community; No Government can or ever did subsist long without them; They are of absolute Necessity to suppress Violence and to be Arbiters of the differences between contending Parties, That every Man may not become [Page 4] his own Carver, and thereby a Door be laid open to all manner of Iniquity and Oppression. And in a Constitution like ours, formed upon the Model and as nearly similar as Circumstances will admit, to that of England, where Equity makes up a con­siderable Part of the Law; Courts of Justice are as necessary here as there; those that proceed in a Course of Equity as well as those that adhere more rigidly to the strict Rules of the Common Law: For the Common Law lays it down as a Maxim, Rather to suffer a Mischief than a general Inconvenience; and the Judges thereof are by their Oaths tied up to the strict Rules of Law, and are bound to determine according to the known Customs and Statutes of the Realm, although they are at the same Time sensible, that in so doing, they are obliged to do an Act of manifest Injustice; Hence is the Necessity of Courts of Equity, to moderate the Rigor of the Law in some Cases, to give Relief against Frauds, Accidents and such like, and to prevent a Failure of Justice, which would otherwise happen by such adhering to the strict Rules of Law. And this alone is properly the Business of a Court of Equity, not to take away Trials by Jury, but to give Relief in Cases, where it is not to be had by the common Law: For Causes triable by common Law and a Jury are improper for a Court of Equity, Heb. 203.

GENTLEMEN, The general Reason upon which the Court stands here, is this: In case of an uninhabited Country newly found out by English Subjects, all the Laws in Force in England, are in Force there. This is the Resolution of My Lord Holt and the whole Court, and seemed to be agreed at the Bar, Falk. 411. This is from the Necessity of the Thing: For among a Number of Men, there must unavoidably arise some Differences and Dissentions; which it is most natural to think they would determine by such Laws as they were acquainted with, which must be by the Laws of their Mother Country; and there is the same Necessity that it should be in such Courts and by such Officers and in such Methods as were known to them, and in Use in their Mother Country. "For where Officers are wanting, says my Lord Holt, our Laws can have no Force, Falk. 412. So that if as Englishmen, We claim the Laws of England as our Birth-right, we are most certainly intitled to the Courts, in which the Laws may be administred, which Courts are by, and part of the common Law; For where is the Use or Force of Laws, unless they can be put in Execution? This can only be done by proper Offi­cers; and to say We have a Right to the Laws, and not to the Administration of Justice according to those Laws, in such manner as we may reap the Fruit of them, what is this but a gross Absurdity? So that if the binding Force of the Laws of England here, is either from a right inherent in us as Englishmen, or from that Necessity which makes it supposed, that we received the Laws under which our Ancestors lived before their Settlement here, and agreed to be governed by them for want of another Law; In ei­ther Case, nothing more was wanting than Judges and other Officers to administer the Laws as in our Mother Country, and give them their Force; and the Appointment of the Judges and Officers is Part of the King's Praerogative, or more properly of his Office, But the Jurisdiction of the Court is from the Law; Judges have accordingly been ap­pointed, and their Commissions have run for above these Thirty Years past with only inconsiderable Alterations, as they do now.

AND I find upon perusal of the Minutes of this Court, That so long ago as the Year 1702. a Court of Exchequer was held before William Atwood Esq the then Chief Justice, Abraham De Poyster and Robert Walter Esqrs; in which some Proceedings were had on the Plea side. I do not find any Proceedings in the Exchequer from that Time, (tho' pos­sibly I may have overlooked some) till the Year 1729. When the Hon. Lewis Morris, Esq my Predecessor sat alone in Court, and it was upon the Motion of Mr. Alexan­der, viz.

YOU see, Gentlemen, that by this Motion it is supposed, that this Court is vested with the Powers of the Court of Exchequer, and so allowed by the Chief Justice, by granting the Motion, what the Powers of the Court of Exchequer are, wherein the Barons are Judges, I mentioned before, to wit, Cognizance of Pleas at the common Law, and a Power of determining Causes in a Course of Equity by English Bill, and the Writ prayed for by this Motion, issues out of the Chancery of the Exchequer. ‘And the Writs usual in the Chancery in the Exchequer to seize the Land in such Cases are more antient than the Register or the Treatise of Praerogativa Regis.’ I meet with no other Proceedings in the Exchequer until Mr. President Van Dam's Time, when a Bill was filed, which happened in this Manner. In the Winter 1731. during Mr. Van Dam's Administration there was held a Weekly meeting of the Judges in Town, & some of the most considerable Lawyers; at one of these Meetings it was proposed by one of them to bring the Equity Business into this Court, and a Question arising, whe­ther the Judges were sufficiently impowered by their Commission to determine Causes brought by English Bill? My Commission and my Brother Philipse's were brought and considered, and it was agreed by Us all, to wit, Messrs. Alexander, Horsemanden, Murray, Chambers, Smith, Jameson and Warrel, who were present at that Meeting, that the Judges were well impowered, and upon that they resolved to bring the Business here according­ly; for these and other Reasons, because the Business in Chancery must be attended with intolerable Delays; The Governors who act as Chancellors being obliged to be sometimes in Jersey to meet the Assembly of that Province, and sometimes at Albany to meet the Indian Nations, besides that, few of them care to be troubled with that Busi­ness, this made Suits in Equity in that Court very tedious and expensive, and it was thought it could not be disagreeable to the People in general, who must believe their Properties well secured in the Hands of sworn Judges, whose Business it is to study the Laws, and whose Estates and Families are in this Country; It was said that that was the properest Time, when there was no Governor appointed that we knew of, who per­haps might think that the leaving his Court and bringing the Equity Business into this, was done out of Diffidence towards him, and none of the Lawyers would care to be the first to expose himself to a Governor's Dislike; These were the Reasons among many others made use of at that Time, to alter the Current of the Practice in Equity, and turn it into the Channel it now runs in. And accordingly a Bill was filed in the Ex­chequer in March Term 1731. long before the Governor's Arrival here, directed to the Hon. Lewis Morris Esq Chief Justice, and the rest of the Justices, and on Mo­tion, Process ordered by him in open Court.

I mention these things, Gentlemen, to remove a mistaken Notion most People have taken up, I am told, as if this Court were erected by Ordinance in the present Governor's Time, in order to bring on a Suit, brought by the Attorney General in his Majesty's Be­half against Mr. Van Dam. I hope the People will in a little Time be undeceived, both as to this Court and the Men who have signalized themselves in Opposition to that which they once approved and promoted; looking a few Years back will open their Eyes, and so defeat and frustrate the Expectations of such as delight in Confusion.

As to the Ordinance, it was chiefly intended to appoint the Times of the Sittings (for the Times of holding all our Courts have been always settled by Ordinances) that the Suits here might not prove so tedious and expensive as they were found to be in Chan­cery, where, in a very memorable Case, it was said, the Charges were run up to many hundred Pounds, though the Case was determined upon Bill and Answer.

As to the grand Objection that has been made, That the King cannot erect a Court of Equity, so neither can he erect another Court of Kings Bench or Common Pleas in England. So that if the Objection hold good, in the sense some would understand it, We have no Supreme Court at all. The Consequences of which are very Terrible, and obvious to every considerate Man.

[Page 6]Upon the whole, Gentlemen, altho' some Men have been exceedingly free with my Character, I can easily forgive them; I dare say, they have not that ill Opinion of me themselves, which they would infuse into others; but as I am in this Station now, and as long as I shall have the Honour to continue in it, I will support and maintain the Dignity and Authority of this Court, till it be declared in a regular and legal Way by some higher Court, that we have not Jurisdiction in Equity. I have often since I gave my Opinion touching the Jurisdiction of this Court, considered the Reasons, Argu­ments and Authorities in Law made use of on both sides, as I can see no reason to Retract my Opinion, on the contrary I am fully satisfied in my Conscience, that I am in the Right.

Gentlemen, I have detained you a considerable Time; you are sensible of the necessity there is of clearing up these Matters, which, I hope, I have done to your Satisfaction. Nothing remains but that in general you are charged to Present all such Offences as shall come to your Knowledge, from Treasons down to Trespasses. I know most of you Personally, and I make no doubt but you will discharge your Duty.