the Governor's Commission never intended to give him power to create a Court of Equity-The King himself has not power to do it: for this Court must either 4 Inst. 87, 213. exist by Prescription or Act of Parliament; but can in no case be raised by Grant from the Crown. The Governors and Councils therefore, in the times of my Lords Cornbury and Lovelace, committed great error in attempting to erect by the Prerogative, a Court which really did exist by the Common Law. This Ordinance was absurd, and a mere nullity: but the maxim of Utile per inutile non vitiatur is founded upon good reason.-The legal and constitutional existence of this Court was not affected, by an attempt to make it an unconstitutional Court. And of this opinion was the Council in the time of Governor Hunter: They Saw the error of their Predecessors, and declared that the Governor having the custody of the Seal, is by that constituted Chancellor. The Court having been Supposed, thro mistake, to arise merely upon the Ordinance, and improper Judges having, in consequence thereof, sat in that Court; could not be any reasonable Objection to the same Court being held regularly by the proper Judge, when the mistake was discovered. A

5th Objection has been made, That there is no person appointed to administer the Oath of Chancellor or Keeper to the Governor.

To this it is answered, that the Members of his Majesty's Council or any three of them, are directed, in the Governor's Commission, to administer the State Oaths to him; together with the Oath of Office; and an Oath for the equal and impartial administration of Justice, in all Causes that shall come before him: Which seems very Sufficient to enable them to administer the Oath of any Office, with which he may be invested. And it is evident, in fact, that the Oath of

Vide

utes of Coun

ter to Gov

Min- Chancellor, in so many words, has been cil from time administered to several of the Governors of Gov Hun- and other Commanders in chief of this ProBernard. vince; and by the same authority might have been administred to every one of them. So that if the Governor be the Judge of the Court of Equity, there is no doubt, but the Council are impowered to adminster the Oath of Office.

Such are the Reasons of my Opinion upon this important point; and I am happy in having been able to satisfy my self-nevertheless they are humbly Submitted to better Judges.

PRINCETON, Jan 27th 1770

RICH STOCKTON

The Petition of William Bayard, Esq., of New York, to the Board of Trade, praying their Lordships to propose to His Majesty the repeal of an Act passed in the Province of New Jersey, relative to the Common Lands of the Township of Bergen.

[From P. R. O. B. T., New Jersey, Vol. 10, L. 5.]

To the Right Honourable the Lords Commissioners of Trade and Plantations

The Petition of William Bayard of New York Esquire

Sheweth

That by a private Act of the General Assembly of the Province of New Jersey Intitled An Act appointing Commissioners for finally settling and determining the several Rights Titles and Claims to the Common Lands in the Township of Bergen and for making Partition thereof in just and and equitable Propor

tions among those who shall be adjudged by the said Commissioners to be intitled to the same, obtained and passed in the fourth year of the Reign of his present Majesty at the Instance of Your Petitioner and others the Inhabitants and Freeholders within the Township of Bergen within the said Province, certain Persons therein named were appointed Commissioners for the purposes above mentioned

That the said Commissioners in the Year One Thousand Seven Hundred and Sixty four proceeded in the Execution of the said Act and having allotted to the several Grantees their respective proportions of the said Common Lands, the said Commissioners located to every Proprietor his Share therein according to the directions of the said Act, and having thereby performed all the Trusts reposed in them by the said Act, made a due and regular Return of their proceedings as by the said Act they were directed

That Your Petitioner in right of a Patent of the Island of Secaucus granted the tenth of December One Thousand Six Hundred and Sixty three to his Grandfather Nicholas Bayard and Nicholas Varlet as joint Tenants and confirmed to them by Governor Carteret on the thirteenth of October One Thousand Six Hundred and Sixty-seven, claimed before the Commissioners an Allottment of the said Common Lands, as did likewise sundry other Persons in virtue of a Sale from the said Nicholas Bayard of the said Island of Secaucus, but the said Commissioners having doubts concerning the Rights thereto, would not take upon themselves to determine to whom the said Allottment did belong and therefore in their Award or Determination only set apart a certain Lot of the said Common Lands to the said Patent of Secaucus distinguished by Number 283 in their Field Books, and left the Question of Title and Right to be decided by due Course of Law.

That Your Petitioner in right of and as Heir at Law

of the said Nicholas Bayard his Grandfather (who survived the said Nicholas Varlet) thereupon entred upon the Lands so allotted by the said Commissioners to the Patent of Secaucus and both ever since been and still is in the possession thereof.

That the Persons so claiming under the said Sale of the said Island did some time since commence a Suit in the Supreme Court of Judicature of the said Province against your petitioner for the recovering the possession of the said Lands so allotted by the said Commissioners to the said Patent, to which your petitioner immediately appeared and submitting to the Jurisdiction of the said Court therein, caused a Defence to be made in the said Suit and the said Cause having been brought on to Trial, a special Verdict was found therein which having been solemnly argued before the Judges of the said Court they were ready to give their Judgment in the Matter.

That notwithstanding there never has been the least doubt entertained of the Jurisdiction of the said Court as to the Cognizance of the said Cause, the several Persons so claiming under the said Sale being conscious of having no Right by Law to the said Allotment and taking Advantage of your Petitioners Absence from the said Province, have in a very unfair and unprecedented manner obtained at the last Sessions of the General Assembly of the Province an Act intitled a Supplementary Act to an Act entitled an Act appointing Commissioners for finally settling and determining the several Rights Titles and Claims to the Common Lands of Bergen and for making Partition thereof in just and equitable Proportions among those who shall be adjudged by the said Commission ers to be entitled to the same; whereby certain Persons therein named are appointed Commissioners instead of the persons in the said former Act named for settling and finally determining in whom the

Right or Rights of the said Common Lands allotted to the Patent of Secaucus is or are vested, under such Directions as therein set forth, and the opinion of the said Commissioners is thereby declared to be good and valid in Law to establish the Right and Title of the proprietor or proprietors of the said Common Lands, And for the more easy and ready acquiring Possession of such Common Lands as shall be allotted and adjudged by virtue of the said Act, the said Commissioners are to issue a Precept to the Sheriff of Bergen County commanding them to cause full and actual Possession to be delivered to such person or persons to whom such Common Lands shall be alloted, who is thereby required to execute the same as in Case of a Writ of Possession in an Action of Ejectment; And the said Commissioners are thereby directed to meet and take upon them the Execution of the said Act on the Twentieth Day of September next or as soon as they conveniently can thereafter, having first given such notice as therein mentioned.

That the impropriety and evil tendency of this Act is too obvious to need further Observation than that the plain view and design of Your petitioner's Adver saries in thus attempting to remove this Question of Right which is entirely of a private nature and a mere point of Law depending between Individuals from the ordinary Course of Justice where it has been brought by themselves in a regular Course of Procedure, to a new erected Court of Commissioners whose deter mination is to be final, must be to deprive your Petitioner of the legal Right to the Judgment of the Supreme Court of Judicature and of his Appeal from thence if necessary, first to the Governor and Council of the province, and ultimately to his Majesty in Council; contrary to the express Constitution of the Province, besides this Act being confessedly of a private nature and not containing any Clause of Suspen