Appeals to the Privy Council from the American Plantations 9780231878449

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APPEALS TO THE PRIVY COUNCIL FROM THE AMERICAN PLANTATIONS

A PUBLICATION THE FOUNDATION COLUMBIA

FOR RESEARCH UNIVERSITY

OF IN

LBGAL

SCHOOL O F

HISTORY

LAW

APPEALS TO THE PRIVY COUNCIL FROM THE

AMERICAN PLANTATIONS BY Joseph Henry Smith WITH AN INTRODUCTORY ESSAY BY

Julius GoebeljJr.

COLUMBIA UNIVERSITY PRESS NEW YORK

·

1950

COPYRIGHT

I95O,

COLUMBIA

UNIVERSITY

PRESS

P U B L I S H E D IN G R E A T B R I T A I N , CANADA, AND INDIA B Y G E O F F R E Y OXFORD U N I V E R S I T Y MANUFACTURED

P R E S S , LONDON, TORONTO, AND IN T H E U N I T E D STATES OF

CUMBERLEGE

BOMBAY

AMERICA

FOREWORD an attempt has been made to describe and evaluate at length the Privy Council of England as a judicial body exercising appellate jurisdiction over the courts of the various American plantations during the seventeenth and eighteenth centuries. Prior to this volume no attempt had been made to utilize even a small part of all the available material, largely manuscript, bearing on this subject. Some writers of the local history school confined their attention to certain notable causes, such as Winthrop v. Lechmere, Lcighton v. Frost or the Parsons' Cause. Other writers, concerned with particular colonies or public figures, discussed in passing such cases as Cunningham v. Forsey. Another group, in writing on the Privy Council's jurisdiction in a general manner, relied solely upon printed materials, principally the Acts of the Privy Council, Colonial. Treatises and case books on the constitutional law of the United States have invariably treated the doctrine of judicial review during the American colonial period in a superficial manner. No real effort was made by any of these writers to integrate the various records in the archives on this side of the Atlantic with the Privy Council records in London. Professor Julius Goebel, Jr., was the first to perceive the value to students of Anglo-American legal history of a thorough study of the appellate jurisdiction of the King in Council over the American colonies. The instant project has been carried out under his supervision and guidance. I am deeply indebted to him for the many demands I have made upon his extensive knowledge of English and colonial law and history. Considerable space has been devoted in this book to discussion of the Council's jurisdiction over the Channel Islands, as this constituted the core of all conciliar appellate jurisdiction and is a prerequisite for any consideration of plantation appeals. The insular colonies of the Caribbean have been treated at some length, since in the seventeenth and eighteenth centuries these islands were economically and strategically more important than were the mainland colonies and were regarded as such in English administrative circles. Although it is sometimes exposed to political maneuvering, appellate jurisdiction is a matter of law, not of politics. Consequently, it has been necessary to employ technical language, much of it concerned with problems of procédural, rather than substantive, law. Such usage, while it renders more difficult the task of the lay reader, recognizes that the legal problems incident to hisI N THIS STUDY

vi

FOREWORD

Coricai research must be created as such, noe vaguely dismissed as "technicalities." The sources used have been largely manuscript, assembled from numerous depositories in England, the Channel Islands, the states of the Atlantic seaboard, and Jamaica, British West Indies. These sources have been supplemented with printed material, in part readily accessible, in part rare. Reproduction of manuscript sources has given rise to the usual problems of spelling, capitalization, and punctuation. For the most part the original spelling has been preserved, arbitrary capitalization has been deleted, punctuation supplied or altered where necessary to clarity, and contactions expanded. Certain arbitrary choices were necessary to resolve the vagaries in the spelling of proper names. A bibliography has been omitted as it would swell considerably a volume already of formidable dimensions, but full reference has been made in the footnotes to all the sources utilized. Of the many depositories which placed their facilities at my service, I am particularly indebted to the officers and staff of the Public Record Office, the British Museum, the Bodleian, and Lincoln's Inn, in England, to the Société Jersiaise in St. Hélier, Jersey, and che Priaulx Library in St. Peter Port, Guernsey, C.I.; to Miss Edna L. Jacobsen, Chief of the Manuscripts and History Section of the New York State Library, Miss Mary T. Quinn of the Rhode Island State Archives, Dr. Radoff and the staff of the Maryland Hall of Records at Annapolis, and the respective staffs of the Massachusetts Department of Archives, the Connecticut State Library, the South Carolina and North Carolina Historical Record Commissions; to the respective officers and staffs of the New-York Historical Society, the Historical Society of Pennsylvania, the Connecticut Historical Society, the New Jersey Historical Society, the New Hampshire Historical Society, the Maryland Historical Society, the Massachusetts Historical Society, the New Haven Colony Historical Society, and the American Antiquarian Society; to Mr. St. George L. Sioussat, Chief, and the staff of the Manuscripts Division of the Library of Congress, the staff of the Law Division, Library of Congress, the staffs of the Manuscript Research and Reserve Book Rooms, New York Public Library; to Mrs. Hess of the American Philosophical Society, Mr. George A. Osborn, Rutgers University Librarian, and the staff of the Harvard University Law Library; to Mr. Maxwell Volins, Chief Record Clerk, New York County Clerk's Office, the staff of the Research Room, Suffolk County Court House, Boston, Mass., the staff of the Superior Court, Newport, R.I.; to Langton Haldane-Robertson, Esq., Archivist of the Institute of Jamaica, Kingston, Jamaica, B.W.I. ; to the officials of the Jamaica Record Office, Jamaica, B.W.I. I am also much indebted to Lord Wright of Durley for facilitating my re-

FOREWORD

vii

search in the records remaining at the Privy Council Office in Downing Street. T o Dr. M. A. Thomson and Dr. R. A. Humphreys of the Institute for Historical Research, London, I am grateful for valuable guidance in the use of English sources; to Dr. J. H . Le Patourel of the Institute for Historical Research, Bailiff A. M. Coutanche of Jersey, Ralph Mollet, Esq., and AttorneyGeneral Sherwill of Guernsey, I am indebted for kind assistance in assembling the Channel Islands material. T o }. Bennett Nolan, Esq., and James M. Osborn, Esq., I express gratitude for access to private manuscript collections. T o Professor Dorothy Burne Goebel I am especially indebted for search in the Shelburne MSS at the Clements Library and for critical reading of the entire typescript. T o my wife, Edith Stenberg Smith, I am grateful for a reading of the proof with the practiced eye of an estates lawyer and for compiling the table of cases. Dr. Donald Tilton and the late Lieutenant William C. Evers, U.S.M.C.R., relieved me of many of the chores incident to research, while the library staffs of Columbia University cheerfully submitted to many demands on their time and patience. Finally my thanks are due to Mr. Samuel F . Howard for undertaking the arduous task of compiling the index, and to the Columbia University Press for the care bestowed in bringing this volume to publication. J. H. S. New Yorf( August, 1Ç49

CONTENTS INTRODUCTION: T H E MATRIX OF E M P I R E I.

XIII

T H E R I S E OF THE APPEAL JURISDICTION

3

THE MEDIEVAL STATUS OF THE CHANNEL ISLANDS

5

APPELLATE JURISDICTION UNDER ELIZABETH

12

CHANNEL ISLANDS APPEALS UNDER THE FIRST STUARTS

25

THE INTERREGNUM

38

EARLY CONCILIAR CONTROL OF COLONIAL JUSTICE

4I

T H E RECALCITRANCE OF MASSACHUSETTS BAY

45

LATER ROYAL CHARTERS

51

THE NAVIGATION ACTS

59

THE

RESTORATION

APPELLATE

SYSTEM

FOR

THE

CHANNEL

ISLANDS AND THE COLONIES II.

III.

63

T H E LORDS C O M M I T T E E OF TRADE AND PLANTATIONS

71

THE RIGHT OF APPEAL IN THE CHARTERED COLONIES

74

APPEALS REGULATIONS; CHANNEL ISLANDS; ROYAL PROVINCES

77

VICE-ADMIRALTY APPEALS

88

ORIGINAL JURISDICTION OF THE PRIVY COUNCIL

95

COMMITTEE PROCEDURE; CHANNEL ISLANDS; PLANTATIONS

96

THE MASON LITIGATION IN NEW HAMPSHIRE

II5

INTERCOLONIAL BOUNDARY DISPUTES

121

CONFLICTS BETWEEN ADMIRALTY AND COMMON LAW COURTS

127

THE COMMITTEE APPRAISED

128

T H E SETTLING OF JURISDICTION

132

THE PROBLEM OF THE CHARTERED COLONIES

I38

OPPOSITION IN THE ROYAL COLONIES

I5I

THE PERSISTENCE OF NEW ENGLAND RECALCITRANCE

160

THE NEW CHARTERS

167

ISLE OF MAN APPEALS

I7I

CONTENTS

IV.

V.

APPEALS AND DISALLOWANCE

I74

VICE-ADMIRALTY APPEALS

177

COLONIAL REVIEW OF ADMIRALTY CASES

193

CONFLICTS OF JURISDICTION

200

LIMITATIONS ON THE EXERCISE OF REVIEW JURISDICTION

202

PUBLICISTS AND POLITICAL OPINION

2Θ8

T H E REGULATION OF A P P E A L S

214

THE REVISION OF INSTRUCTIONS

2L6

INSTRUCTIONS FOR NEW ACCESSIONS

235

INTERPRETATION OF THE INSTRUCTIONS

236

CRIMINAL APPEALS

24O

ACTS OF PARLIAMENT AND CONTINENTAL COLONIAL ACTS

244

INSULAR LEGISLATION

256

VIRGINIA LEGISLATION

259

JUDICIAL RULES

262

VICE-ADMIRALTY APPEALS

265

NON-AMERICAN JURISDICTIONS

267

PROCEDURE AT THE COUNCIL BOARD

272

CHANNEL ISLANDS APPEALS

282

THE COMMITTEE HEARING

289

REVIEW AND RECORD IN CRIMINAL CASES—BAYARD AND HUTCHINS

VI.

297

THE PRACTICE IN MISDEMEANOR CASES

306

THE RECORD PROBLEM IN CIVIL APPEALS

309

THE COMMITTEE REPORT

314

THE AWARD OF COSTS

318

COMMITTEE PERSONNEL

323

THE EXECUTION OF THE ORDER IN COUNCIL

328

THE ANCILLARY BODIES

344

T H E SCOPE OF A P P E L L A T E R E V I E W

351

GENERAL AND SPECIAL VERDICTS

352

COLONIAL OPINION ON THE FORM OF VERDICT

359

CONTENTS

VII.

VIII.

IX.

zi

THE NEW ENGLAND RECORD

365

W I L L I A M M U R R A Y AND COUNCIL PRACTICE

366

THE COUNCIL'S N E W ENGLAND PROBLEM

373

T H E CHANCERY APPEAL

378

PROCEDURAL ERROR

379

THE INSTRUCTIONS OF 1 7 5 3

383

THE REACTION I N SOUTH CAROLINA

386

CUNNINGHAM V. FORSEY

39O

T H E AFTERMATH

412

A P P E A L S FROM R O Y A L COMMISSIONS

417

T H E MOHEGAN INDIANS V. CONNECTICUT

422

T H E MASSACHUSETTS-NEW HAMPSHIRE BOUNDARY DISPUTE

442

THE MASSACHUSETTS-RHODE ISLAND BOUNDARIES

449

THE CONTROVERSY BETWEEN NEW YORK AND NEW JERSEY

453

T H E P R I V Y C O U N C I L AND THE EXTENSION OF ENGLISH L A W

464

T H E EXTENSION OF ACTS OF PARLIAMENT

465

T H E PRE-SETTLEMENT STATUTES

487

STATUTES EXPRESSLY EXTENDING TO PLANTATIONS

495

THE INTERPRETATION OF COLONIAL STATUTES

503

STATUTES RELATING TO ADMIRALTY JURISDICTION

514

JUDICIAL AND LEGISLATIVE REVIEW

523

THE FOUNDATIONS OF DOCTRINE AND PRACTICE

523

EARLY LEGISLATIVE REVIEW

53I

WINTHROP V. LECHMERE

537

REACTION TO T H E DECLARATION OF NULLITY

551

T H E RHODE ISLAND PRECEDENT

560

PHILIPS V. SAVAGE

562

CLARK V. TOUSEY

572

N U L L I T Y UPON LEGISLATIVE REVIEW

582

COLONIAL DISCUSSION OF JUDICIAL REVIEW

586

FURTHER NULLIFICATION UPON LEGISLATIVE REVIEW

592

COLONIAL ACTS CONTRARY TO ROYAL INSTRUCTIONS

597

xii

CONTENTS THE PARSONS' CAUSE HALL V. LAING NULLIFICATION IN WESTMINSTER HALL THE MASSACHUSETTS ACT OF PARDON AND INDEMNITY THE STATUS OF JUDICIAL REVIEW SEPARATION OF POWERS AND JUDICIAL REVIEW X.

CONCLUSION

APPENDIXES SOURCES INDEXES TABLE OF CASES GENERAL INDEX

THE MATRIX OF EMPIRE by JULIUS GOEBEL, JR. W E ARE ACCUSTOMED to think of our institutions as grown from the good seed of democracy and to hold of little account what is owed to the strain of prerogative. T h e very word prerogative acquired an odor of repugnancy during the long stretch of one hundred and sixty-nine years of our colonial condition, because it stood for a political reality which was a recurrent point of controversy in the relations with the sovereign. The eighteenth-century Englishman might pride himself that the arbitrary element had been nearly abstracted from the prerogative, but his colonial kinsman, who drew no benefits from the great emancipating statutes of the seventeenth century, must perforce Uve by a constitution in which the medieval components were far from being mere vestiges. It is doubtful if at any juncture even the best-informed lawyers in the plantations were acquainted with more than a piece of the pedigree of the system by which these establishments came to be governed or controlled from Whitehall. 1 A n d despite the many competent explorations of this system as a going concern, present-day knowledge of its origins is not much further advanced. This failure to probe into beginnings may be attributed partly to the fact that study of how our internal polity developed has been largely influenced by what the British call the Whig interpretation of history. In consequence the 1

The lawyers who undertook to deal with problems of imperial relations were led into the medieval background through the precedents used by Coke, Vaughan, and others. The degree to which they treated of historical foundations depended somewhat upon their literary resources. Rymer's Foedera, from which a considerable part of the background can be reconstructed was probably unavailable in most provinces. Rymer is cited by Jefferson in his Notes on Virginia. He apparently did not use it for his pre-Revolutionary Summary View. Examples from pamphlet writings are, Dickinson, Letters from a farmer, Mos. 4 and 10, in 14 Mem. Hist. Soc. Pa. 305; Wilson, On the Legislative Authority of the British Parliament (2 Works of James Wilson [Andrews ed.] 505 et seq.)·, Dulany, Consid-

erations on the Propriety of Imposing Taxes . . . (1765); Otis, Rights of the British Colonies Asserted and Proved (Mullctted., 1929) in 4 Univ. of Missouri Studies 76 et seq. The anonymous Massachusettensis, whom John Adams believed to be the lawyer Jonathan Sewall, confined his history to events after settlement. Nevertheless, his letters provoked the most complete of all historical investigations of the time, the Novanglus of John Adams. Cf. Novanglus and Massachusettensis (reprint of 1819). The historical allusions in parliamentary debates no doubt had some effect in turning colonial attention to the historical arguments; cf. the long and interesting memorial of colony agent Charles Garth 00 a speech of Pitt (So. Carolina Hisr. Soc., Misc. MSS., Box 1700-1784, Jan. 19, 1766).

xiv

T H E M A T R I X O F EMPIRE

story of our first stages has been told in much the same terms as the growth of the English constitution. This approach was from the first as much a matter of convenience as of prejudice. The early investigators into American affairs had enough to cope with on this side of the water without reexamining the premises and conclusions of the nineteenth-century masters who were reconstructing the constitutional history of the mother country. This had been conceived and executed as something restricted to the realm itself. The intricate problems of constitutional relations with the far-flung territories which acknowledged the lordship of England's King during the Middle Ages remained virtually untouched.2 This imperviousness may have been made colorable by acceptance of the ancient distinction between realm and dominions,* but a vast area of English administrative activity was thereby left blank. In consequence, when the subject of imperial relations with the New World establishments came under scientific scrutiny, it was handled as if it had been as much res integra to Stuart administrators as it was to modern scholars themselves. The historical underpinning which lent significance to the continuity and development in America of such matters as local institutions and representative government is nonexistent as to imperial relations. Now the truth of the matter is that when the first expeditions were being outfitted for America, the English were already old hands in the business of empire. Their experience had been accumulating since the time of the Norman conquest, although when the seventeenth century opened only a fragment of once vast holdings remained. The complex of territories in subjection to the The nineteenth-century English constitutional historians, e.g., Stubbs, occasionally use the expression "empire" with reference to crown possessions without the realm, but not in any artful sense. Of the writers of the present century, only Schuyler has seen the problem clearly: "There was an English empire, though it was not known by that name, long before the founding of overseas colonies in the seventeenth century," Parliament and the British Empire ( 1 9 2 9 ) , 6. He has used medieval precedent to found and explain the power of Parliament to legislate for the dominions. T . F. Tout notices the resemblance of the Gascon administration to that of Wales and Chester, 5 Chapters in the Administrative History of Mediaeval England, 300; cf. Lodge, Gascony under English Rule ( 1 9 2 6 ) , 5, where the Gascon administration is compared with that of India. However, in speaking of the "Ordainers' " claim to control Scotland, Ireland, and Gascony, Professor T o u t remarks: " W e need not sec in this either a prophetic vision of an imperial Britain in the 2

future, or a simple suggestion of greediness, though in it there was more of the latter than of the former" (Place of Edward II in English History [2d ed., 1936] 185). This seems to us an implicit disclaimer of any "empire" theory or practice. T h e most recent work in which there is occasion to touch on these problems (Powicke, King Henry 111 and the Lord Edward [ 1 9 4 7 ] ) deals with "conflict of laws" (2 ibid., 618-685) in a manner that equally negates any imperial constitutional ideas. T h e remark that Edward I "did not and could not set up a body like the modern judicial committee of the privy council for the administration of various kinds of l a w " indicates that Powicke has missed the significance of what Edward was doing with King's Bench, and certainly the significance of the triers of dominion petitions in Parliament. 3 Cf. 3 Osgood, The American Colonies in the Seventeenth Century (1926) 8, where it is mistakenly said that "it was more a distinction of fact than of law, of practice than of principle."

T H E MATRIX OF EMPIRE

XV

English King was an empire, not by virtue of English law (which had its own classifications), but by virtue of the custom common to all western Europe. It was, in short, a feudal empire,4 composed of divers honors of which England was but one.8 In each of these, whether acquired by conquest or by descent, the King had lordship, and this was variously and locally defined by ancient usage, by what came to be bargained away, and by the incidence of those pressures which everywhere were bearing down upon feudal pretensions. The English King's medieval empire lacked the one element which characterized and gave unity to the New World empire—the homogeneity of the private law. In so far as the medieval structure was sustained by any legal base, this must be sought in the premises of feudal law, in its rules and practices, on which there was a certain degree of concurrence in the various lands of Europe. Although England was initially not what a feudist would call caput honoris, it becomes so because the royal title is the one of most dignity, because its geographical position makes it the very keep for military operations,® and because in the end it is mostly by English blood and treasure that this empire is held together. But there are reasons for the ascendancy of the realm weightier than those of diplomacy and war, for they derive from the prosaic world of administration. It is in the King's Council that decisions concerning components of this empire will be made; it is from the King's Chancery that mandates will go forth; it is at the King's Exchequer that lieutenants from overseas will account. Matters concerning the realm and places outside the realm alike are transacted here, because this is King's business, and these are instrumentalities of the King. 7 These agencies are initially as footloose as their principal. But a pied à terre becomes an administrative necessity; and it is in the realm that 4 The notion that an empire may be composed of various lordships appears as early as 1279 in a plea of Llewellyn, Prince of Wales (cf. Davies, The Welsh Assize Roll 1277-1284 [ 1 9 4 0 ] , 266) and as late as 1 4 7 1 - 7 6 (cf. Fortescue, The Governance of England [Plummer ed., 1885] c. xvi: "Nowe the lordeshippes of the emperour bith not so gret as be the lordeshippes off some kynge"). For traces of similar ideas in medieval German law cf. Schulte, Lehrbuch der Deutschen Reichs—und Rechtsgeschichte (5 ed.), 207 n. 10, 209 n. I i . 6 See the county and hundred ordinance of Henry I, S 3 (1 Liebermann Gesetze der Angelsachsen [ 1 9 0 3 ] , 524; Jolliffc, Constitutional History of Medieval England [ 1 9 3 7 Ì · '74)· 8 It is so thought of in the Middle Ages (cf. 3 Rot. Pari. 36b [ 1 3 7 8 ] ). In trying to cozen the

Parliament, Gascony and the other fortz of the King are described as "barbicans al roialme d'Engleterre." 7 Cf. Tout, France and England ( 1 9 2 2 ) , 7 0 - 7 1 , regarding Chancery temp. Henry II. With the establishment of dominion offices, e.g., a Chancery in Ireland and later in Gascony, elements, if not of hierarchy, at least of a partition of authority enter into the picture. The boundaries of this have not been adequately studied, but apparendy the range of acts of the central authority superseding acts by local agencies in the King's name was very great. This has a bearing upon the rule to which Coke adverts (Calvin's Case, 7 Co. Rep. 20a) respecting the currency of brevia mandatoria et non remedialia. A similar problem existed with respect to the American royal colonies, and this too awaits a thorough investigation.

svi

T H E MATRIX O F EMPIRE

they become domiciled, so that even when a voyaging sovereign finds personal attendance of officers or councilors indispensable, 8 the English headquarters will be maintained. T h e employment in imperial affairs of these agencies, which through the King were part of the ordinary machinery of the realm, and to that extent involved in domestic constitutional struggles, was to prove significant in many ways. In the first place, a certain community of procedure at the top level became inevitable. In the second place, a considerable degree of continuity of administrative tradition was assured. And finally, some definition of relationships had to be made as a matter of English law. It is impossible to examine Gascon rolls, the mass of documents relating to Ireland, or the slimmer bulk bearing on the Channel Islands, without an appreciation of the chains which can be forged by the use of nearly identical forms for the dispatch of affairs circumstanced as differently as those of Dublin, Bordeaux, and Jersey. All these far places felt the impress of what we have come to regard as distinctively English instruments. T h e effect of these inanimate things is enhanced by the employment throughout generations of a floating bureaucracy. 9 One who serves as warden of the Channel Islands may later be seneschal in Gascony. Such a seneschal may be moved to serve in Wales, and may live his last days as constable of some English castle. O n less exalted levels, functionaries will move from the Exchequer to the constableship of Bordeaux and next serve on commission for the Channel Islands, and some s

Thus, on one Gascon expedition Edward I took along his Chancellor, half the Chancery, and half his council, Lodge, Gascony under English Rule, 56. Henry IV took some of his officers and part of his council on campaigns, Baldwin, The King's Council in England during the Middle Ages, 1 5 1 . See further, Stamp, Some Notes on the Court and Chancery of Henry 111, in Historical Essays in Honour of James Tait ( 1 9 3 3 ) , 305; Broome, Exchequer Migrations to Yorl( in the Thirteenth and Fourteenth Centuries, in Essays Presented to T . F. Tout ( 1 9 2 5 ) , 291. • F o r example, Drogo de Bareotin ( + 1 2 6 5 ? ) was three times Seneschal of Gascony, he was Warden and Sub-warden of the Channel Islands, proctor at the papal curia, and finally Keeper of Windsor Castle (cf. 1 Bémont, Rôles Gascons [Collection des documents inédits sur l'histoire de France], Suppl., exiv; Le Patourel, Medieval Administration of the Channel Islands [ 1 9 3 7 ] 1 2 3 ; Close Rolls 1 2 3 7 - 4 2 , 1 6 5 Calendar of Patent Rolls 1258-66, 300). John de Grey was Justice of Chester, Seneschal of Gascony,

Warden of the Marches of Wales, Constable of Hereford, and Sheriff of Hereford (Bémont, op. cit. cxix, Calendar of Patent Rolls 1232-47, 467-68; ibid., 1247-58. 553, 638; ibid., 125866, 163. John Havering was Sheriff of Southampton, Deputy justice of North Wales, Seneschal of Gascony, back as Justice of all Wales, again Seneschal of Gascony (Carte, Catalogue des Rolles Gascons [ 1 7 4 3 ] , 27, Calendar of Patent Rolls 1272—81, 284, ibid., 1292—1301, 146, 502 Tout, Place of Edward II, 349). Oliver d'Ingham ( + 1344) was governor of Ellesmere Castle, Justice of Chester, Warden of castles of Marlborough and Devizes, Seneschal of Gascony (Dictionary of National Biography, s.n.). The tendency to use experienced administrators is still seen at the end of the fourteenth century, as in the case of John Stanley who served in his youth in Aquitaine, was Deputy in Ireland, later Lieutenant, served in the Welsh Marches, was Constable of Windsor Castle, and later again Lieutenant of Ireland (cf. Dictionary of National Biography, s.n. Thomas Stanley).

T H E M A T R I X OF E M P I R E

rvii

may make the rarer shift from Bordeaux to Dublin. 1 0 In the final analysis it is to the muniments of administration and to the men who learn their uses in different climes and circumstances that one must look for the elements of cohesion without which no concept of empire can be said to exist. W e can here conveniently refer to but one type of instrument to make at once the points of cohesion and of continuity in dominion administration, and what we shall have to say must of necessity be largely by way of suggestion, since every form used in imperial administration still awaits exhaustive study. As the American colonists quickly learned, the governor's commission was a document of great significance for their affairs—indeed, it came to be viewed on both sides of the water as possessing a basic constitutional force. The eminent Sir Bartholomew Shower might argue scornfully before the House of Lords in 1693 1 1 that the common law knew no such office as governor; but under such aliases as seneschal, king's lieutenant, warden, or lord deputy, the Chancery had been familiar with it for centuries. In general, and by whatever name this type of agency was known, it comprehended certain basic functions. Whether it was exercised in Gascony, Ireland, or the Channel Islands, the office involved the duty of captain general, 12 precisely as it later did in the royal colonies of America. It involved a certain responsibility for material royal rights, specifically lands. It involved certain jurisdictional authority. It involved certain fiscal obligations, as well as rights. We do not mean to imply that a full and complete definition of all these functions can be demonstrated by early records, as they can be by the commissions of the late seventeenth century. On the contrary, the particulars of a deputy's powers underwent a process of development and accretion not yet terminated when James Stuart succeeded to the English throne. The point of departure appears to have been a simple and terse appointment to an office. 13 This was quite in accord with the English practice pursued with respect to certain governmental jobs, such as a commission to the Common Bench, where the precise functions were a matter of usage. Such a form is used, for example, with respect to the seneschalry of Gascony, 14 where the duties, in so far as they were not traditional, would be assumed pursuant to subsequent explicit warrants. The English combination of a commission for 10

Lodge, Constables of Bordeaux under Edward III, 50 EHR 225 et seq., has an account of the careers of various such officials; cf. esp. John Travers (ibid., 232 η. i8), and Robert Wykford (ibid., 236). 11 Dutton v. Howell, Shower PC. 24. 12 ι Bémont, Râles Gascons (Supp.) exx; Lodge, Gascony under English Rule, 137-38; Le Patourel, The Medieval Administration of the

Channel Islands (1935), 40; Wood, The Office of Chief Governor of Ireland 1272-1 joç, in 36 Proceedings Royal Irish Academy, No. 12. 13 E.g., Seneschal of Gascony, Bémont, Riles Gascons, no. 1704; Warden of the Channel Islands, Patent Rolls 1225-1232, 350. 14 ι Bémont, op. cit. (Suppl.) exx ("Ses pouvoirs n'étaient pas encore nettement définis").

xviii

T H E M A T R I X OF EMPIRE

an eyre and the accompanying highly detailed capitula ittnerìs that put us in mind of the later colonial combination of commission and instructions was not apparendy adapted to places without the realm. However, resort might be had to the practice of issuing the simple commission and simultaneously a series of other instruments with respect to particular powers. Thus, when John de Havering was made seneschal of Gascony, in 1305, six such documents were forthcoming: 15 the appointment, one dealing with salary, one conveying powers in litigation touching the crown, one granting authority over subordinates, and one directing the constable of Bordeaux to supply funds. Five of these could have been combined, and one suspects some small matter of fees was involved. In any event, this piecemeal method of delegation was not yet utterly obsolete in Edward VI's time, for it was used to outfit a Lord Deputy in Ireland. 16 It is our opinion that contract also had something to do with the enlargement of particular commissions and that resort to this eventually had its effects upon common form. The circumstances that might lead to this were either the importance of the nominee or the toughness of the job ahead, or both. An early and famous example is the grant by Henry III to Simon de Montfort when he was made the King's lieutenant in Gascony (1248), an instrument that M. Bémont supposes was the result of Earl Simon's demands.17 The mechanics of chaffering are disclosed by a document many years later—a series of propositions put by John Darcy to the Council that set out the conditions upon which he was willing to go to Ireland as justiciar.18 These conditions include such matter as the power of pardon, later to be a usual clause in commissions. The responses to these articles are preserved (some a mere "fiat"), and although none of this appears in Darcy's commission, the creation of a contractual obligation is obvious.19 The reduction of mutual engagements to more formal terms comes about, we think, from the extensive employment of indentures for the supply of troops in the fourteenth and fifteenth centuries.20 In these times the military 15

Maitland, Memoranda de Parliamento ( 1893), 329 et seq. Cf. the batch issued in 1 3 1 8 to William de Montecute (3 Rymcr, Foedera, 162 et seq.). References arc to the original edition of Rymcr unless otherwise indicated as coming from the Rolls edition. 16 ι Calendar of Patent Rolls Edward VI, 1 1 7 , 1 3 3 - 3 6 ; cf. 2 ibid., 56-57. The additional warrants of authority here appear to have been used because certain functions were to be exercised in concert with other persons. 17 Bémont, Simon de Montfort ( 1 8 8 4 ) , 22. The appointment is printed at 264.

18 Baldwin, The King's Council in England during the Middle Ages, 473. 19 We have elsewhere considered the contractual quality of so-called statutes, such as the Confirmatio cartarum, where proposition and assent are involved (Goebel, Cases and Materials on the Development of Legal Institutions [1946 ed.], 166-67). Darcy's commission ( 1 3 2 9 ) is in 2 Rymer, Foedera (Rolls ed.), pt. ii, 756 (1328/9). 20 On this, Lewis, Organization of Indentured Retinues in 14th Century England, in 27 Trans. Royal Hist. Soc., 4 ser., 29 et seq.; Prince, The

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aspect of the gubernatorial office was the most significant and, in keeping with current practice, the obligations with respect to a governor's military establishment were reduced to terms of formal agreement. To incorporate other and nonmilitary matter was but a step. Two pairs of documents suggest the nexus between the use of indentures for military needs and their use for the specification of governmental powers. Robert de Herle, in June, 1351, entered into an indenture with the King with respect to the garrisoning of Calais, and ten days later was commissioned Captain of Calais.21 A few years later, in 1355, the Black Prince and the King settled by indenture the details of the military establishment for Gascony as well as the particulars of governmental authority; e.g., ordinance power, capacity to make grants, jurisdiction over rebels to be exercised by the Prince as lieutenant in Gascony. The commission of the same day embodies the recital of such powers.22 In 1376, when the Earl of Ormond was commissioned justiciar of Ireland, the familiar terse form is used, but this is accompanied by a royal declaration respecting the powers of the office.23 Similarly, in 1378 John Neville was given a short form commission as lieutenant of Gascony and received an explanatory document issued with consent of the Council.24 It seems plausible that these declarations in each case embodied the purport of underlying indentures, for no English King was likely at this stage to confer broad authority ex mero motu. These declarations, moreover, appear to be an intermediate step to the ultimate absorption of their contents into the patent of appointment. This was probably first done by resorting to an incorporation by reference. Thus, John Stanley was appointed Lieutenant of Ireland on December 10, 1399, by King and Council, with a specification of authority recited to be according to the form of a certain indenture, and his reappointment in 1413 was in similar terms.25 The virtue of this expedient was this, that the commission formula itself was left virtually intact, but the fact of reference lent to a private contract the vigor of a public instrument. This is not the place for an exhaustive inquiry into the role of the indenture, nor arc the resources presently at our disposal sufficient thereto. Enough has been sketched, perhaps, to suggest the part which bargain played in securing a definition of office. In the shifting subject matter of such contracts it is Indenture System under Edward III, in Historical Essays in Honour of James Tait (1933) 283. 21 The indenture is in 3 Rymer, Foedera (Rolls ed.), pt. i, 222; the commission in ibid., 226. Cf. the combination in the appointment of John Beauchamp (ibid. 316, 324 [1356]). * 2 The indenture is in Register of the Black, Prince (1933), Part iv, 143-45; the commission

is in 3 Rymer Foedera (Rolls ed.), pt. i, 307. 23 The commission is in 3 Rymer, Foedera (Rolls ed.), 1058; the declaration in ibid., 1060. 24 Notification of the commission is in 4 ibid., 43; the declaration in ibid., 44. 25 Cf. Calendar of Patent Rolls 1309-1401, 92; Calendar of Patent Rolls 1413-16, 53.

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possible to fix upon certain constants. Repetition was bound to give them a life independent of agreement, adding thus a further example to the list of rules and legal institutions which have emerged from consistent use of contract. That the limits of an office should have depended on compact, the modern mind finds strange indeed, but in those times an office was a species of property and so quite properly the subject of contract. There were sound fiscal reasons, too, to say nothing of the expedience of being safeguarded against the whims of prerogative. The sources dealing with various dominions disclose a constant intervention by the crown that must often have driven a prudent administrator to distraction. The example of Henry III overriding the mandates of his son in Ireland is well known, 2 ® and likewise the efforts of Edward III to draw to himself the appeals from Gascony after its incorporation into Edward of Windsor's principality. 27 Covenant furnished the only means of placing a few barriers against the antic exercise of royal pleasure. Patent rolls and council records both show the bargaining process continuing in the fifteenth century. 28 In the course of these eventually disastrous years the content of commissions is pretty well stabilized, a result which was partly due to the occasional practice of commissioning by the formula of mere reference to a predecessor's patent. 29 A comparison of the commissions to the seneschal of Gascony of 1415 3 0 with those used for Ireland in 1423, 3 1 1428, 32 1462, 33 and finally in 1495 3 4 suggests that certain basic constituents of the governor's office are settled. The latter instruments are particularly important, because after the loss of Gascony a few decades before Columbus' first voyage, Ireland remained the only considerable possession of the crown and administratively the significant link between old and new policies. What Henry V I I grants to Prince Henry and Edward Poyning, his deputy, is destined to be the core of what James I later grants to Lord Mountjoy 3 5 (1603) —a document which anticipates matter later to appear in royal commissions to American colonial governors. The threads of historical continuity are here —they want only the tying. 26

3 Orpen, Ireland under the Normans ( 1920), 270-72. 27 5 Tout, Chapters in the Administrative History of Mediaeval England (1930), 3 1 3 ; cf. infra, p. xlvii. 28 E.g., 10 Rymer, Foedera 282 (Ireland, 1423) ; Calendar of Patent Rolls 1429-36, 69 (Gascony, 1430); Calendar of Patent Rolls 1436-41, 140 (Ireland, 1438); Calendar of Patent Rolls 1476-85,90 (Ireland, 1478); 2 Proceedings and Ordinances of the Privy Council of England, 130; 3 ibid., 6, 8; 4 ibid., 53, 79, 92; 5 ibid., 206.

29 E.g., Calendar of Paient Rollt 1467-77, 205 ; ibid., 1477-84, 153, ibid., 1485-94, 84. 80 9 Rymer, Foedera 239 to John Tiptoft. 81 10 ibid., 282 to The Earl of March. 32 Calendar of Patent Rolls 1422-29, 475, to John Sutton. 83 Calendar of Patent Rolls 1461-67, 142, to the Duke of Clarence. 84 Calendar of Patent Rolls 1494-1509, 12. 35 1 Repertory of Inrolments on the Patent Rolls of Chancery in Ireland (1846), 17.

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There are other muniments of medieval administration, some of which will be considered later, that contribute details to the framework of what may be called an imperial constitution. This is a designation we use with some reserve. It is essentially a mere political description, for whatever may be the probative impact of a body of precedent on the manner and form of dispatching business, this alone cannot supply the catalyzing force of a coherent and pliable legal doctrine. This was not forthcoming, because the ultimate word rested in the King, who, although universally admitted to be the source of all law, was equally the source of final political decision. In other words, the point where conclusions of principle had to be reached was also the most tender to considerations of expediency. Nevertheless, the fact that in one way or another Council, Parliament, and common law courts had to cope with matters connected with places outside the realm produced, if not a theory, at least certain materials for one. We shall consider first what the common law courts had to contribute. By the time of Edward I, when it was apparent that England had become the center of a congeries of royal possessions, the limits of competence and jurisdiction of the courts at Westminster were fixed both geographically and in the broader national sense. Although they were King's courts, they were preeminently courts for the realm. The heart and viscera of their law was the corpus of original writs, devised primarily for the assertion or defense of private rights. The ambit of these writs was limited; the arm of English justice would reach no further than they could go. In consequence the common law which polarizes about these mandates is a law principally for the realm. It is manifest that for practical reasons the central courts could not ignore, nor could the law be impervious to, aspects of royal authority outside the realm. After all, this was King's business as much as the duties they were discharging for England itself. Although they cannot speak law for places where the King's writs are not current, they must define the posture of their own law if someone in Ireland is vouched to warranty,36 if a protection for service in Gascony is interposed in an action,37 or if some question about Welsh lands is involved in a personal action.38 In so far as the common law arrived at any generalization regarding the outlands, it was embodied in the conception "dominions of the King," although sometimes these are referred to as places without the realm, but within the ligeance of the King. The word dominium, from which this derived, came into the law with the Normans and is one of those protean terms of eleventh-century feudalism. It is definitive not merely of proprietary or »· Cf. YB 21-22 Edw. I [R.S.], 308. " Fitzherbert, Abridgment, Protection, 55 (YB 17 Hen. VI).

38

Fitzhcrbert, Abridgment, (YB 6 Hen. V).

Jurisdiction,

34

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possessory rights in land but also of the governmental and contractual incidents of tenure. As long as all these elements are present lordship is synonymous with dominium. Lordship comes to mean something different during the fourteenth century as respects relations of the King's subjects.39 But when lordship is attributed to the King, the original feudal sense of the term remains unaltered. The mutations of the term dominium at the hands of the common law courts were manifold. 40 In the ordinary causes of meum et tuum, it becomes preeminently a word of property law, and irresistibly this mode of thought infects judicial thinking when the territorial aspects of the dominion of the King are involved. Even Bracton, who in other connections found it convenient to resort to Roman distinctions between public and private law, is using the vulgar language of English real property law when he says that Ireland and Wales are in the power and dominion of the King. 4 1 The application of property law concepts to relationships which were essentially matters of state, and of no direct connection with the law of the realm itself, is characteristic of the way the courts at Westminster made their contribution to constitutional development.42 In this particular instance the process was facilitated by the fact that within the realm itself the courts were continually dealing with a problem of royal rights that inevitably suggested analogies. We refer to the ancient demesne—the lands which had belonged to the crown on the day the Confessor was quick and dead. 43 These estates are conceived to be annexed to the crown,44 and to them a peculiar quality of immunity attaches : that is to say, they are not parcel of the normal system of justice, police, or finance; barring personal actions, the ordinary writs do not run here; justice, although administered in the King's name, is essentially seignorial, for it is done on the manor and it is the manorial custom which is enforced. The common law courts have to deal with ancient demesne chiefly by way of review, or collaterally when by plea the matter of status is presented, for the franchise pursues the soil and remains even if such lands have come into private hands. So far as the tenants are concerned, they are not bound to attend the county court or to serve on juries, they are exempt from the sheriff, and they are not taxed with the county at large, for they are originally not represented in Parliament. On the ancient demesne the aphorism that "the King 39

Cf. Jolliffe, op. cit., 424. 2 Pollock and Maitland, History of English Law (1911). 4. 33. "441 Bracton, De legibus, f. 380b. 42 Aspects of this are discussed in Goebel, Constitutional History and Constitutional Law, 38 Columbia Law Review, 555. 40

43

On this, Coke, Fourth Institute, 269 et seq.; Vinogradov, Villeinage in England, 89 et seq.; ι Pollock and Maitland, op. cit., 383 et seq. 44 Fleta, lib. i, c. 8: "Antiqua maneria vel jura Coronae annexa Regi, non licebit alienare . . ."

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is so prerogative in his lands that he will have no one over him" 4 5 means what it says. The existence of particular rules of law for the King's demesne within the realm could hardly fail to affect judicial thinking with respect to demesnes that lay without, especially since the courts were faced with nearly identical limitations on their authority as to all—viz., that original writs were not current, that peculiar "customs" applied, and that royal prerogative, if it was at all confined, was so by virtue of rules beyond the control of the central courts. Their use of the artful dominium to describe the King's control of his properties irrespective of situs is suggestive enough of a singleness of thought. Unquestionably the crown contributed to this first, by declarations respecting both Ireland and Gascony 48 as jurisdictions never to be severed from the crown, and subsequently, in reference to Wales, when Edward I announced that although hitherto held iure fcodaiis, this land was henceforward in proprietatis nostrae dominium annexed and united to the crown. 47 Since the common law had already some rules, if not a theory, about lands annexed to the crown, it is not surprising to find the judges occasionally bracketing dominions outside the realm with the ancient demesne. While fully conscious of practical diversities, they would find procedural parallels,48 they were disposed to conjoin them in the elaboration of their analysis of franchises,49 and ultimately to explain the nonextension of Acts of Parliament on the ground of nonrepresentation.80 Analogy can be a potent artifice to advance the bounds of the law, but in the instance before us the choice of the ancient demesne was not a particularly happy one. A body of rules which was concerned primarily with the proprietary rights of the King and in which the element of immunity was so emphatic was hardly susceptible of contributing to the growth of doctrine about a political relationship. It is true that in the era of American settlement the crown derived material advantage from the point of view embodied in these old precedents, but so far as English law was concerned their immediate effect was to hold captive the rudimentary feudal notions of empire, so that the close of the Middle Ages saw the common law judges not far from the point at 45

YB 33-35 Edw. I (R.S.), 406. ι Bémont, Rôles Gascons, No. 2374 ("Ita tamen quod preiicte terre et castra omnia numquam separentur a corona Anglie . . . ted integre remaneant regibus Anglie in perpetuum"). Cf. 1 Calendar of Irish Documents, no. 844. 47 ι Statutes of the Realm, 55. 48 Fitzherbert, Abridgment, Errour 83 (33 Edw. ΠΙ) I. The distinction is drawn between error from Common Bench to King's Bench, where the whole record is sent, and error from 48

Ireland or ancicnt demesne, where a transcript is sufficient. 48 YB 36 Hen. VI, 33 (pi. 34); cf. also YB 32 Hen. VI, 25 (pi. 13). 50 Brooke, Abridgment, Parlement & Statutes, 101. Certain Yearbook cases appear to have been compounded for the generalization: 22 Lib. Ass. pi. 45; YB 7 Hen. VI p. 39; 20 Hen. VI, 8 (pi. 17). Brooke's analysis is discussed in Thorne, A Discourse upon . . . Statutes (1942), 23 et seq.

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which they had started. They did nothing to explore the content of the King's lordship in his dominions, and consequently there was here nothing to match the accretions of constitutional doctrine with respect to his capacities within the realm. The resort to the principle of personal ligeance to setde the status in English law of the King's non-English subjects shows clearly how he remained in the judicial imagination a pristine feudal suzerain as to his outlying possessions. It is in this guise that he is clothed when America is discovered, and from the moment that the first colonizing charters are sealed, the struggle commences to maintain as to the New World establishments the capacities and powers conceded by the common law to inhere in the King as to his possessions outside the kingdom. If issues relating to the dominions had arisen more frequently and less collaterally, it is conceivable the English courts would have extricated themselves from the strange corner into which they had been driven by the imperative of their property-mindedness. But the limitations upon their jurisdiction were such that they never had to grapple with the problem as something fundamental and of the first order. The early acceptance of the rule respecting the restricted ambit of writs initiating litigation excluded original jurisdiction over causes extra regnum. The opportunities for direct exposition of the law were therefore confined to the causes that might come by way of transfer or by way of review. What we describe as transfer is the familiar removal of cases coram rege because of franchise to be so heard, because of particular royal interest, or as a result of special petition. This is initially an aspect of conciliar jurisdiction which, along with other judicial business, came to be centered in King's Bench in the period when it was still a limb of Curia Regis and which remained there after the assumption of a distinct identity as a court for the realm. The removal of inland causes played an important part in the expansion of King's Bench's supervisory powers and was rapidly integrated into the common law system, because it was exercised in accordance with the postulates of common law practice. Such conditions did not obtain in the dominions (except in Ireland) and consequently transfer jurisdiction here retains its original quality of special reference. Circumstances therefore favored neither judicial expressions of policy respecting the law overseas nor the building of any body of precedent. Furthermore, after 1289 transfers from Ireland were discouraged,51 and in the course of the fourteenth century the Channel Islanders resisted the practice, until it was at last relinquished.52 Perhaps the most significant contribution of this jurisdiction was the formulation and promotion of a policy that SI 2 Sayles, Select Cases in the Court of King's Bench (Seiden Soc. 1 9 3 8 ) , lx.

52

LePatourel, op. at.,

112-13.

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although an original writ was not current out of the realm, a royal mandate was nevertheless effective if King's business was involved." This amounted to no more than a generalized assertion of prerogative, but within a few decades the matter was more precisely grounded as a rule of law, when it was judicially laid down that even in places where originals did not run, if such places were in the King's power a royal mandate must be obeyed.54 The political and administrative implications of this are obvious. The contemporaneous use of devices for review of judgments no doubt contributed toward settling the ubiquity of certain types of royal process, since the review jurisdiction was a species of evoking pleas coram rege, although after judgment. It is distinguished further by the fact that the practice of review was developed from theories peculiar to itself. The theory which touched the dominions was in point of jurisdiction derived from feudal law which vested in an overlord appeals for default of justice, and which conceived as possible progressive recourse up the feudal ladder to the suzerain himself.5" The successful planting in England of this conception of progressive appeal was frustrated by the royal claim to an immediate prerogative over all cases of unjust judgment or default of justice.58 In consequence, the appeal per saltum had become the norm before the twelfth century was out,5T although it was not until the Statute of Marlborough that the principle was irrevocably settled.88 The appeal procedure for unjust judgment which the Normans had brought to England was neither a procedure for the correction of errors nor a review of the merits of a controversy inter partes. As the word appeal in its medieval connotation suggests, it was an accusatory proceeding at the instance of a party aggrieved by a judgment, against the courtkeeper or body of judgment finders.59 It had this in common with appeals of felony, that an issue of perjury 5 3 3 Sayles, op. cit., xlvi et seq. " YB 19 E d w . ΙΠ (R.S.), 337· M O n this, cf. Mitteis, Lehnrecht und Staatsgewalt (1933) 298, 316, 538 et seq.; Fournier, Essai sur l'histoire du droit d'appel (I88I),I40 et seq.; A d a m s , Council and Courts in AngloNorman England (1926), 161 et seq. se Leges Henri ci, 10.1; 59, 19. Cf. ibid., 33, la, a n d Glanville, De legibus xii, 7. T h e false or u n j u s t j u d g m e n t is broadly a species of default of justice, but Leges Henrici appears to distinguish between t h e m (cf. 33, 2; 33, 3a) not because the difference was vital to f o u n d jurisdiction, but chiefly because different procedures were involved, and the sanction falls in the first case on t h e body of j u d g m e n t finders and in the latter m a y be confined to the court keeper (ibid., 7, 6).

97 A d a m s , op. cit., 164 η. 2o. Γη Italy in t h e eleventh century a similar rule of i m m e d i a t e appeal t o the E m p e r o r obtained (Mitteis, Der Staat des Hohen Mittelalters [1940],

>63)· c. 19, ι Statutes of the Realm ( R . C . ) , 24. T h e N o r m a n s appear to have taken over the Frankish procedure for impeaching j u d g m e n t s (cf. 2 B r u n n e r , Deutsche Rechts geschickte [2d e d . ] , 473 et seq.). Certain incidents, such as battle, w e r e embroidery put upon it by feudal society. It is to be noted that the Anglo-Saxons used a procedure for impeaching j u d g m e n t s which bore certain resemblances to t h e original Frankish institution (2 Liebermann, Gesetze der Angelsachsen [1906],/.«'. Urteilschelte). 58

59

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was involved, that trial was by battle, and that sanctions awaited the loser. 60 Since the chief features of a proceeding for falsifying a judgment obtained in all places where French feudalism had spread, 61 the rudiments of a legal mechanism for the exercise of imperial authority were present, although the limitations as a device for controlling the law of any dominion are manifest. As this procedure developed within the realm, it underwent modifications which not only changed the scope of the jurisdiction, but led to a new conception of the review process. In the main this was part and parcel of common law growth, but some features emerged from the control of dominion cases during the period when common law forms were in the course of being settled. It is consequently desirable to make some inquiry into the evolution of the English procedures themselves. These have received only the most fugitive attention of historians: a neglect which needs to be repaired, in view of the great political significance of review jurisdiction both within the realm and without. N o one, moreover, will dispute that whatever will or will not be done with respect to errors and defaults in outlying dominions is necessarily conditioned by the practices and prevailing ideas at the center of the imperial administration. T h e most notable of the changes in English law had to do with manipulations of the record concept which so reconstituted the appeal of feudal law that a correction of error could be effected. Record was a Norman importation. It had originally nothing to do with writings, signifying only a remembrance of transactions, and in a society generally unlettered the manner of remembrance was necessarily oral. 62 So far as judicial proceedings were concerned, the duty of remembrance was laid upon those who participated in judgment. Both English and French sources indicate that the suitor who functioned as judgment finder according to the old law was equally charged with bearing record. 63 T h e Anglo-Norman sources of the early twelfth century make a significant addition: that record of the King's court cannot be impeached, but record of other courts may be traversed. 64 One source confines the rule of unimpeachability to the court where the King is personally present, 65 but if this was once true, the privilege was presently extended to 60 Brunner, Wort und Form im altfranzösischen Prozess, in Forschungen, 346 et seq. 61 Gebauer, Studien zur Geschichte der Urteilschelte, in 17 Zeitschrift der Savigny Stiftung für Rechtsgeschichte (Germ. Abt.), 33. 62 Brunner, Entstehung der Schwurgerichte (1872), 189 et seq. 63 For France, see Brunner, Das Gerichtszeugnis und die fränkische Königsurkunde, in 1 Abhandlungen, 417, 422; Mitteis, Beaumanoir

una die geistliche Gerichtsbarkeit, in 35 Zeitschrift der Sav. Stift, für Rechtsgeschichte (Kanonistische Abt.), 335. The English practice is indicated in the early twelfth-century compilation Leges Edwardi Confessoris, 36, 3. It is still operative in the fourteenth century; cf. YB 45 Edw. Ill, Hil. pi. 2. 64 Leges Henrici, 3 1 , 4; 48, 6. 65 Leis Willeime, 24.

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the several manifestations of Curia Regis. 66 We shall have something more to say about this in a moment, but we must first consider how the record notion was applied to the English local courts, where the old forms of judgment prevailed, because the review jurisdiction was first exercised with respect to these bodies. Where complaint is made against the judgment of a county court, a royal writ commands the sheriff to have a record made (recordari facias) of the suit, and four knights who participated in making it are to bear it and appear in the King's court. 67 In the case of a feudal court, the sheriff is to associate with himself four knights and proceed to have a record made which four lawful men of the court baron are to bear to Westminster. 68 The record thus borne is clearly an ad hoc memorial after the event, and in the subsequent proceedings before the King's court the procedure is a contention between the complainant and the record bearers, although the winning litigant below, being present, may be asked to confirm or deny the record. 69 The pleading revolves about the truth or untruth of the account proffered by the record bearers, and about its completeness.70 Usually the record is a relation of the several stages of the litigation in terms of process, pleading, and trial procedure. This is propounded and traversed as matter in pais. But the facts in controversy, being ordinarily on points of procedure, are peculiarly within the cognizance of the reviewing tribunal. Here, as in appeals of felony, the King's courts in the early thirteenth century on the basis of a distinction between facts which were substantively material and those which concerned procedural irregularity were arrogating to themselves the determination of the latter. Since only the judgment itself, not the record, had to be defended by duel, 71 joinder on the ultimate issue of perjury and consequent wager of battle could be sidestepped. The reviewing court, having heard out complainant and record bearers, could specify what it deemed to be error in the proceedings below and by its judgment set matters aright. 72 The persistence of the original penal characteristics of the action are observable in the retention of sanctions.73 ββ Dialogus de Scoccarlo (Hughes Crump & Johnson eds.), 67; Glanville De legibus (Woodbine ed.), viii, 9. 87 The writ is in Fitzherbert, Natura Brevium, 18B. Glanville speaks of this ad hoc recording as per assisam de concilio inde factam, suggesting an ordinance of some recency. On the procedure, see 2 Pollock & Maitland, History of English Law, 666 et seq., and Woodbine's notes in his edition of Glanville, 240 et seq. 68 The writ, accedas ad curiam, is in Fitzherbert, Natura Brevium, 18D. " Cf. 2 Curia Regis Rolls (hereafter cited CRR),

260; 8 CRR 389; Bracton's Notebook., pi. 1436. Cf. ι CRR 277 (whole record false); 6 CRR 2 3 0 - 3 1 (part recorded "wilfully"); Bracton's Notebook pi. 40; pi. 243, pi. 1 1 3 8 (part good, part bad). 71 Glanville, De legibus, viii, 9. 72 For example, 6 CRR 230, Bracton's Notebook,, pi. 40, pi. 824; pi. 1436. 73 Glanville, op. cit., viii, 1 1 , avers that a lord may lose his court. The normal practice is amercement of a county for a false judgment in the county court. 70

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It was a considerable achievement of the English King's courts to convert the old false judgment, essentially a vindictive proceeding, into something resembling an administrative inquiry into complaints against local courts, directed toward the determination of whether or not any material ingredient of due process in the original suit was missing. The record and the pleading upon it were merely a means of getting such issues before the supervisory tribunal in a way which would have been closed had the proffered record been invulnerable. Even by the middle of the thirteenth century this review by the King's court had not reached the state of a continuation of the litigation inter partes at a higher instance in a judicial hierarchy, but by indulging the use of the technique of common law controversy to displace the older formal procedure, an advance toward a true error jurisdiction was effected. How far the recordari facias procedure, developed in the atmosphere of the new remedial law of the English courts, could be adapted to false judgments from the various dominions where the King had lordship must have been questionable. By any test the traditional false judgment procedure was illadapted to the ends of a centralized imperial administration. It had developed and was workable within confined geographic limits. A journey from Bayonne to Westminster to engage in personal combat with the representative of a local court over a lost action was hardly an attractive prospect. There was, furthermore, enormous inconvenience connected with the transport of the human record bearers, whose physical presence even the reformed English practice required. The obvious solution was to preserve the jurisdictional prerogative over false judgments, but to remake the procedure itself. A first and obvious step was to follow in the path of the canon law (of which more in a moment) and permit a written record to substitute for an oral statement. In the then state of secular procedure this was a prospect of mountainous difficulty, for it involved a break with traditional ways which ran back into AngloSaxon and Frankish times, and so were as indurated as compurgation or trial by battle. The most serious legal obstacle, since the sanction was penal, was the. restriction that would be put upon the defense if the testimony of the accused court was confined to a written instrument. By the same token the supervisory function would be limited to the faults disclosed by such writing and to this extent fall short of the results achievable by a personal examination of record bearers. The thirteenth century was better than half over before the written remembrance finally established itself as the record in the King's courts. These had ever shown a strong predilection for human testimony, even if merely formal. This pervaded their handling of documents generally, and consequently, although they early reduced their own proceedings to writing, they delayed

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reaching the conclusion that such writings could be endowed with thè quality of record and so dispense with reliance upon personal recollection. W e have indicated in the margin the successive stages in the process of substitution. 74 This involved not only an eventual recognition that tradition should give way to convenience in determining a question of res iudicata but also arriving at the more difficult conclusion when a judgment was under attack to dispense with the judge as a necessary participant. In this last particular developments were retarded by the fact that within the system of royal judicature the 7 4 The conversion had progressed so far in the early thirteenth century that litigants will vouch both rolls and the justices themselves—an indication that it is not yet clear what is the record (e.g., ι CRR 57; 2 CRR 201; 3 CRR 168; 4 CRR 36; 6 CRR 260. In 4 CRR 210 the justices wish to inspect the rolls and "certificari super recordo"). The triumph of the written account, moreover, was delayed by the fact that various rolls were kept of the same proceedings, and the problem of unsnarling divergencies had not yet been completely solved at the time Bracton wrote (see the cases in 3 CRR 301, 334 where a diversity in rolls is involved; in 8 CRR 98 the roll of Pateshull is inspected and the clerk thinks it worth noting that Fauconberg's roll is in accord and cf., ibid., 114; Bracton's discussion of settling discrepancies is in De legibus, 352b). This dilemma had an obvious bearing upon the rule of unimpeachability. Whatever the merits of the rule in theory, it was hardly maintainable in the face of the hard reality that two rolls might have different versions of the same transaction. An enrolled entry can have force as record only when methods of control are established. The crudest way to effect this is to secure personal verification of the roll by those who participate in judgment. The earliest form of this appears to be the certification by justices itinerant of the circumstances under which a disputed concord was made (Glanville, De legibus V i l i , 5). Glanville actually speaks of them as making a record, but since the concords normally occur in the course of a litigation and often are enrolled at large, the proceeding with the justices seems to be a certification. The entries in 3 CRR 30 and 4 CRR 270, 275, are apparently examples of this. Note also the case in 8 CRR 87, where a record is ordered of an extent and a certification by knights. In 2 CRR 77 is an early (1201) example of the certification of an inquest by four knights participating. If our view of the entries is correct, it would appear that, once written rolls were kept, what had earlier been a personal recording

cume to be viewed as a certification of an enrollment. W e use the word "certification" advisedly, since it is used in the sources in the sense of a mere advisement (certiorari), the equivalent of similar entries where scire facias is sometimes employed, or of an attestation (as in 8 CRR 77 and 8 CRR 87). Finally, it appears as an attestation of or amplification of a verdict — v i z . , the making certain in the sense of completeness. This last sort of certification, discussed infra in the text, becomes a technical term. Tardif (La Procédure civile et criminelle aux XIII et XIV siècles [1885], 123) avers that the oral record is made "impracticable" by the death of judges, and hence more certain means were essential. In England, in the early thirteenth century, testimony of surviving participants is used (5 CRR 50, 72, and cf. 3 CRR 45, where defendant puts himself on rolls of Richard I and the recognitors in the case). The record of the county is sought in a 1201 case on a judgment temp. Henry II, the iudge being dead (1 CRR 394). It seems probable that the roll alone is allowed to serve as record first in cases of mere voucher (viz., where the proceedings recounted were not themselves under attack), and this was at first a mere indulgence when oral record was impossible; cf. 1 CRR 83, 208, 243; 2 CRR 218, 3 CRR 170; 4 CRR 210; 8 CRR 114; Bracton's Notebook,, pi. 583) Bracton, De legibus, 435b, says "rotulos et recordum iusticiariorum," but in the light of the cases the et is disjunctive. The use of the roll alone to establish res iudicata is certainly settled by 1250. The practice in such cases no doubt helped to expedite the use of rolls as record when the judgment itself was attacked. This began, as indicated infra in the text, with the Irish appeal, and the use of written records shortly after 1250 in recordari facias suggests that in this relation, too, the substitution was accomplished at nearly the same time.

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jurisdiction over complaints against judgments by royal commissions, chiefly in assizes, had been built up on the rule of personal responsibility of those participating in the j u d g m e n t , 7 5 and consequently their personal testimony was required. T h i s was exacted both of commissioned judges and of the recognitors or jury

76

— t h e former were called upon to justify the j u d g m e n t ; the

latter to explain or to amplify their verdict. T h i s was called a "certification"

77

and was directed toward a reformation of the judgment. T h e influence of the older recordari

facias upon the mechanism of the procedure is obvious, but

certification rested, not upon falsification, but upon a theory of mistake. T h i s procedure was a chief method of moving against objectionable judgments in royal courts a n d in a limited class of cases until after the middle of the thirteenth century. 7 8 T h e English C u r i a Regis had not moved far toward the eventual solution of its record problem, when the unyielding circumstances of distance led it to the bold step of ordering up a written record of a judgment m a d e in a royal dominion against which complaint had been made. T h e case is of particular interest for our purposes, since it marks the commencement of a review jurisdiction which was to continue over many centuries. It is familiar knowledge that the introduction of the c o m m o n law into Ireland to the use and behoof of the A n g l o - N o r m a n settlers had been undertaken by K i n g J o h n and that it was greatly furthered by his successor. T h r o u g h o u t the thirteenth century the general situation respecting law administration bears certain striking resemblances with that which obtained centuries later in respect to the American dominions, since the Irish aborigines were only exceptionally admitted to the benefit of the law, and since the central authorities were h a v i n g constantly to deal with aberrations concocted by the settlers. 75

The assize commissioners very usually were mere knights with pretensions to legal knowledge no greater than those of suitors of the county court. Maitland ( 2 HEL 670 n.4) suspects that at first no written rolls were kept by assize commissions. Plea roll evidence is equivocal where reference is made to the assize judges "making a record," although sometimes "certification" is mentioned (Bracton's Notebook., pi. 281 [ 1 2 2 8 ] and pi. 1285 [ 1 2 3 9 - 4 0 ] ). In 1254 a placitum certificationis includes a calumniatum recordum of the judge as well as certification by the assisa (Placitorum abbreviatio, 1 3 1 - 3 2 rot. ι i d ) . Ti A distinction between commissioned judge and the assisa in terms of function is slow to emerge, for Bracton (De legibus, ff. i86b, 289, 290-96) refers to the recognition as a judicium.

Consequently there is a sharing of responsibility. 77 The procedure is described by Bracton, De legibus, f. 289 et seq. For cases, see 8 CRR 75; Bracton's Notebook., pi. 3 7 1 , 372, 4 3 1 , 7 7 1 , 856; Somersetshire Pleas, no. 1492. It is conventional to use the term "certification" with respect to the assisa. We use it for the explanations of the judges as well, for reasons explained supra n. 74· 78 Even eyre judges are not immune; cf. Bracton's Notebook, pi. 1066; 8 CRR 80. The cases are few, but see the writ in Close Rolls 7254-56, 154-55, to eyre judges to have the writs, etc., in a cause ended before them and to testify personally. Cf. ibid., 180, and Close Rolls 1261-64, 3 0 1 - 2 . The writ of attaint which involves falsification is also confined to certain actions.

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From the time English law was introduced, the crown exercised a special vigilance over its maintenance. As a result, there was created a sphere of interest supplementary to the normal prerogative over defaults of justice and so adding considerably to its importance. In the year 1218, as a result of complaint against a judgment in the royal court at Dublin, the justiciar of Ireland was commanded by the King to cause a record to be made of the cause and to reduce this to writing, the same to be put under his seal and the seals of those who had participated in the judgment and the making of the record, and sent to England. 78 Upon this written record the magnates of England and legal experts (jurisperito) conferred, and after a very long delay, in 1223 notified the justiciar that because of two errors, which were specifically enumerated, he was ordered to restore the complainant in what he had lost by "an unjust judgment." 80 This case is a landmark if, as it would appear, this was the first occasion when a written record under seal of an adjudged case was evoked for purposes of review. 81 During the remainder of Henry Ill's reign a variety of mandates similar in form were employed for this purpose,82 although it would appear, from the variation in wording well into the reign of Edward I, 83 that no fixed writ of course had been framed for Ireland, although, significantly enough, the Irish error writ seems to have served as a model for Chester—where the King's originals were not current—after the palatinate had been annexed to the crown.84 How far the practice with respect to the King's dominions had an influence in formulating instruments for the review of causes within the realm must remain for the moment conjectural. The lodgment of the Irish error jurisdiction in King's Bench provided a meeting ground, and it is clear that by the middle of the thirteenth century a written record under seal could TB

Rotuli litterarum clausarum, 353. ibid., 549, "minus iusto indicio." 81 Extents and inquisitions were so certified within the realm, and on occasion transfers were so made from the county (e.g., 3 CRR 225 [1204); 7 CRR n o [ 1 2 1 4 ] ) · 82 Close Rollt, 1254-56, 158, 206, 4 1 1 ; Close Rolls, ¡259-61, 455. To be noted also are examples where there appears to have been a reversal of judgment but no evoking writ is to be found (1 Calendar of Documents relating to Ireland, no. 2487; I Rôles Gascons, no. 729, 735 [1242-43]). In Close Rolls ¡253-54, 116, after complaint is made to the Council apparently without a record, direction is given for further proceedings in Ireland. In Close Rolls ¡242-47, 471, is a mandate respecting an appeal of felony that contemplates correction in

80

Ireland. On this practice cf. also Close Rollt, 1251-53, 501. The case in Clou Rolls 1254-56, 212, orders a record by justices to the justiciar and amendment by the latter. Note finally the use of an inquest in a case of a concord made by a lunatic and the reversal on this basis (1 Calendar of Documenti Relating to Ireland, nos. 2894 and 2964 [1247-48]). 83 2 Sayles, Select Catet in the Court of King's Bench, 45, 72, 125; 1 Calender of Justiciary Rolls, ¡293-¡30j (Mills ed., 1905), 404 (1302). 84 Close Rolls /247-y/, 349. In 1254 the Constable of Chester, in his return on a mandate to make a record, avers that it is not the custom of Chester for the knights (viz., suitors) to put their seals to such records (Placitorunt abbreviatio, 142-43 rot. 10).

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be evoked in English recordari jactas cases.85 The extension of this idea both to cases of error and of removals from an eyre is at least suggestive that the dominion precedents may have played some part in the evolution of the English writ of error procedure.88 There are certain legal problems connected with the assumption of a review jurisdiction over Irish causes that deserve some comment. On its face the precedent of 1 2 1 8 - 2 3 ' s a c ' o s e approach to a writ of error proceeding, viz., the submission of a written record for examination of errors of law by the sovereign judicial authority—a procedure which did not then exist in England. Contemporary recordari facias cases had already contributed something to the establishment of a principle that a judgment founded upon error was correctible. But this had been done with reference to vulnerable records—ad hoc statements open to traverse. The subjection of judgments of the King's own courts to a corrective process was a very different thing, for their record was unimpeachable. There is no reason to believe that the record of the King's courts in Ireland was not thus privileged, and consequently the justification for review of Irish causes was a problem of the same nature and magnitude as the review by certification of errors in English assizes. A phrase used by the Council in our Irish case, "our court is not above ourselves," 8T suggests that because the immunity of the King's record was a matter of prerogative, there inhered in the crown an ultimate discretion over it. If this was so, the nature of the discretion needed definition, for although qualitative distinctions between courts within the royal judicial structure might be tacitly recognized,88 and so lead to an admission that rule of an unimpeachable record was too broad to fit all circumstances of the administration of justice, nevertheless, such an admission would imperil the pillars unon which the rovai svstem rested—the parity of all adjudication done in the King's name and stability of the principle of res iudicata. 85

E.g., Cióse Rollt 1251-53, 416; Clote Rollt 12^4-56, 202; Clote Rollt 1264-68, 260. '•Examples of what may be called certiorari for transfer (although not in ultimate form) are to be found in Close Rollt 7 2 5 7 - J i , 176 (to Common Bench); 223 (to Justice in Eyre); 196, 444 (to assize judges); Close Rolls 12SJ-S4, 103 (to an assize judge). Examples of the error form are ibid., 140; Close Rolls 1261-64, 301-2. They should be compared with the certiorari in 1 Sayles, op. cit., 16 (1273); error, ibid., 140 (1285), 153 (1285); 168 (1287) (the last a criminal case). *T Rot. Lit. CUuu., 549b. The expression is used with respect to royal immunity from summons.

The principle implicit in the expression is so much broader than the circumstances of its utterance that it seems proper to use it out of its context. Cf. the equally large prerogative of record by the King's own recollection (4 CRR 1 1 4 ; Bracton's Notebook., pi. 857). As late as Edward I's time a scire jacios will issue upon such a record (1 Rot. Pari., 1 1 2 ) . 88 Hinted at first by Glanville, De legibus Vili, 5, in the distinction made respecting proof of concords in terms of place made. Bracton, De legibus, 108, points to differences within the royal system, but without hierarchical implications.

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T h e dilemma posed by conflicting policies was the greater, since it involved a deep-seated postulate of early medieval law: respect for the formal vigor of a judgment regardless of intrinsic substantive faults, a postulate which drew strength from the ancient prescription of Anglo-Norman law that a proper observance of formalities insured the rightness of result This is why no remedy was initially available against a judgment, but merely the collateral satisfaction of an attack upon the probity of the judges. We have seen how within this framework English royal courts first went upon local judgments in terms of procedural irregularity. T h e fact that the record could be challenged afforded them a handhold, but we doubt that the resources of their native jurisprudence alone were adequate to have supported them in the full distance they traveled in subversion of tradition. O n the contrary, we believe that there is evidence to support the conclusion that the English judges availed themselves of canonical learning, and that without this borrowing they would not have safely secured the jurisdiction in error. We think it probable also that the English K i n g could have made nothing of his prerogative over defaults of justice in his dominions had not advantage been taken of the rational ideas promoted in the courts Christian. T h e most available portion of canonical learning on post-judgment problems had to do with basic ethical premises that were not inherently connected with ecclesiastical procedure, although they were evolved in the process of reconciling the principle of res iudicata with the lofty ends which the church's procedure was designed to serve. We refer to the dichotomy of the just and unjust sentences 89 —the imperative that a sentence be just and that there lay upon the law the obligation to deal properly with the unjust sentence. This was an obligation not discharged by the usual procedure of Gratian's time, for review by appeal was the sole remedy available and had to be used forthwith, otherwise the principle of the formal vigor of a judicial determination, even if wrong in point of substance or procedure, became operative. This was an undesirable state of affairs, especially in matrimonial causes, and consequently both in the Decretum and in the writings of early decretists the technique of distinction was used to establish a foothold for arriving at a remedy. T h e sentence iniusta ex attimo is distinguished from that ex ordine and that ex causa—a classification which embraced in the first case the personal wrong of 8

® Gratian's Decretum is the most immediate legal source for the early period of common law development. The concept is basic to appeal jurisdiction (see his dictum, Causa II, q. VI, c. 1 0 ; and also Cauta II, q. VI, c. 1 7 ; and the discussion in Ricardus Anglicus, Summa de ordine

judìciarii XXXVII, de app., in 2 Wahrmund, Quellen zur Geschichte det Römisch-Kanonischen Processes im Mittelalter [ 1 9 1 5 ] ; Schulte, Der Ordo /udiciarius des Codex Bambergensis [ 1 8 7 2 ] , c. 2 1 de sententiis [this latter ordo is almost certainly of English origin]).

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the judge, in the second the deviation from procedural norms, and in the last the error of substantive law.90 Under certain circumstances, it was asserted, unjust sentences could be reformed, and although the learned opinion differed on what was the proper combination of conditions, there was general agreement that where a judge had been misled by fraud or stealth there should be reversal.91 On the basis of these ideas there was evolved a remedy extraordinary, the retractatio, which we shall presently examine, but we must first speak of the absorption of the ethical postulates of the canon law by the common law, for this process preceded any dalliance with any devices of review—indeed, it was a condition precedent to such happening. The resort to the canonical conceptions was forecast by the Leges Henrici where the falsum iudicium is rechristened iniustum iudicium,92 It is evident in the prototypes of the writ of novel disseisin, where the judge is commanded to deal justly in a complaint of a disseisin done unjustly and without judgment,93 and thenceforward admonition of just doing and reprobation of unjust acts are commonplaces in royal mandates. But more remarkable for our purposes is the reference in 1225 to the "unjust judgment" of the Irish court 94 because two errors in law had been made, an acceptance of the identification which the canonists had long been making of the error in law as injustice. It was the play with these ideas, we think, which finally suggested a rationalization of the strange inconsistency of maintaining a rule of an unimpeachable record and nevertheless tinkering with the judgments of Kings' judges. This tour de force was done by Bracton in a passage where he amplifies the doctrine of the just judgment in a manner that makes certain inferences inescapable. Bracton comes upon the matter in his discussion of judgments rendered as a result of compulsion by the King. 95 Under such circumstances, says Bracton, what is done is not by way of judgment, but because the King so wishes it. Hence it follows that the judgment (if it can at all be called a judgment) is willful and not just. Whatever may be said of the King's act because These ideas ire set out in Causa XI, q. Ill, especially the dictum, c. 65. Paucapalea has virtually a mere repetition (cf. Die Summa des Paucapalea [Schulte ed., 1890], 78); the Summa Rolandi is more discursive (cf. Thaner, Die Summa Magistri Rolandi [1874], 25-6). The most extensive discussion is by Rufinus (cf. Die Summa Magistri Rufini [Schulte ed., 1892], 276 et seq.). The distincrions are noted in the Bamberg ordo (supra n. 89) c. 21. Stephen of Tournai transcribes from Rolandus (cf. Die Summa des Stephanus Tornacensit [Schulte ed., 1891] 213).

91

Based on the Decretum, Causa XXXV, q. IX, c. 1, 2. Cf. the Summa Rolandi, supra n. 90, 233; Summa Rufini, supra η. 90> 4*>4· 92 Leges Henrici, 10. On the compiler's canonical sources, sec Liebermann, Über die Leges Henrici (1901), 23. 83 Bigelow, Piacila Anglo-Normannica, 128, 130, 250. 94 Supra p. xxxi. 85 De legibus, f. 369.

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he is a King, certainly a just act ought not to be traversed, nor an act by which judgment is made be recalled by anyone if it be just. But if an act be unjust, it will not be the act of the King. And since it be not the act of the King because it is unjust, hence it can be traversed and the act judged, but it cannot be amended or reversed without him.9® It is by such rationalization, we think, that the burden of the unimpeachable record is off-loaded. For the King's record is his factum no less than a command to proceed to judgment. Since an unjust act cannot be attributed to him, no more can a record which recites an unjust judgment be armored with a harness of unimpeachability. It was natural that the clerics, in the English administration who, in the psalmist's words, had walked in the same law with the canonists, should peacefully take over such legal-ethical concepts as would serve their king. Of these the common law had been seised before there was appropriation from the grubby nether regions of procedure. That the canon law arrangements for the review of causes should ultimately exercise a dominion over professional thinking was inevitable, for the ordinary remedy, the appeal, had been the subject of juristic writing, and in the course of the latter twelfth century the practice had been greatly perfected. There were, however, reasons of political expediency which imposed restraint upon overt procedural borrowings by the common law courts, and an intellectual barrier existed in the premises upon which the practice of the two bodies of law were conducted. We have seen that the English courts at first had no device for a direct attack upon an allegedly defective judgment. In the law of the church, however, since the judicial structure was hierarchical, it was permitted as a matter of course to attack a sentence by way of appeal from a lower to a higher instance,87 provided this was done within ten days after sentence or notice thereof.98 The appeal was consequently a continuation of the controversy inter partes at a superior level. The reviewing court had before it the written 9 8 Bracton has no discussion of error jurisdiction at large. The passage (ibid., f. ιο8), where he speaks of the judges a latere regis whose job it is to correct the errors of other justices, is written, we think, with the certification procedure in mind. The character of the cases in his Notebook seems to bear this out, for there are a number of certifications, but only two which by any stretch of imagination can be called cases of "error" in the later technical sense. 97 Cf. the twelfth century Incerti auctoris ordo iudiciarius (Gross ed., 1870), c. XIX ("Appellatio est a minore iudice ad majorem jacta pronuntiatio rei vocatio. Semper enim ad

majorem debet fieri appellatio") ; Ricardus Anglicus, Summa de ordine iudiciarii, c. XXXVII; Tancred, Ordo iudiciarius (Bergmann ed., 1842), de appeüationibut S 4; Laspeyres, Bernardi Papiensis Summa Decretalium (1861 ), lib. 2, tit. 20, 23. 98 Decretum, Causa II, q. VI, c. 27-28; Decr. Greg., lib. II, tit. XVII, c. 5; Summa Rolandi, 17; Tancred, Ordo iudiciarius, tit. 5 S 7. The formulae for written appeal are in Decretum, Causa II, q. VI, c. 31, diet. Grat. The form of litterae dimissoriae or apostles is also there given (cf. also Tancred, Ordo iudiciarius, tit. 5, S 11). If the inferior judge refuses apostles, appellant may turn to the superior (ibid., i 10).

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record of proceedings below,ββ and although new proofs could be proffered,100 it is apparent from the writings of early decretists that the review is largely concerned with errors of law in the original proceedings. In contrast with this system, the King's law in England was administered, not on a perpendicular, but on a horizontal plane—on the principle of co-ordinated or particular jurisdiction. The ecclesiastical appeal was a difficult thing to adapt, since it was by definition an invocation of a higher court to pronounce on the sentence of an inferior court, and in England a superior-inferior relationship existed only as between King's courts and local tribunals. This condition probably favored the early growth of a review jurisdiction there, but the royal courts themselves were not arranged in hierarchy, although, as we have noticed, certain distinctions inter se appear to have been tacitly observed. The germ of an hierarchical idea is implicit in the proceedings coram rege, but as long as that jurisdiction was chiefly original the idea was dormant. It is not to have an existing judgment bettered (the notion behind the transit upon appeal), but for the best available judgment ab initio that men have cases transferred from an eyre to be heard by the King himself. The cases in error from the King's courts in Ireland furnish the earliest trace of a transit to a superior authority within the royal structure; and with the assumption of an appellate function in Council and later King's Bench a locus of appeal in the sense of the canon law comes into being. 101 Once reviewing authority operated consistently upon a written record (post 1250) the conditions were present for selective poaching in the preserves of ecclesiastical law—assignment of error, stay of judgment, and review as of course. From the sources at our disposal it appears that this phase of common law development did not get well under way until the reign of Edward I, and although direct proof is wanting, it is conceivable that this quickening of interest in review jurisdiction may have been stimulated by the first-hand experience of English sovereigns with the Gascon appeals and the expansion of the French King's authority in this field,102 a development to which the canon law made definite contribution. Long before the impact of the canonists' learning about their ordinary rem99

Decretum, Causa II, q. VI, c. 41, diet. Grat. S 2 1 ; Incerti auctoris ordo iudiciarius, XX ("Debet enim allegationes utriusque partís redigere in actis quae appelions debet offert Uli ad quem appellavit"). 100 Summa Rufini 222 ("Qui etiam audire debet allegationes partium, site illae quae in priori iudicio factae sunt sive alias denuo äfferre voluerint") ; Tancred, Ordo judiciarius, tit. 5, 5 12; Deer. Greg., lib. II, tit. XX, c. 17. 101 The later statements that the writ of error is an original and that it is a commission to try

errors, and that the record is tried, are the results of pressure of the principle of co-ordinate power (cf. 2 Tidd, Practice of the Court of King's Bench, 1 1 3 4 ) . This may have had something to do with the failure to adopt canonical rules about receiving new evidence on appeal. The sanctity of the verdict is obviously a late rationalization, since the thirteenth-century certification procedure shows the verdict was open to alteration. 102 Infra, p. xlvi.

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cdy of appeal manifested itself in the common law, the effects of doctrines respecting the reformation of sentences and the extraordinary remedy the retractatio are discernible in English practice. We have spoken of how deeply troubled the decretists were over the limitations of the appeal in coping with unjust sentences and how they were led by a sort of moral compulsion to admit that there were circumstances under which a sentence otherwise unappealable could be opened up for corrective action.103 Since the situation fell without the normal ordo of procedure to which they were so passionately attached, special ways of approach were found. The sentence could be moved against either ex officio or upon supplication, and the Decretum apparently contemplated a reformation of the sentence at the hands of the original judge. 104 The proceeding may be described in the jargon of our own times and own country as in the nature of a coram nobis. As a result of the intensified study of the civil law, the canonists presently identified their extraordinary remedy with the supplicano 108 of Roman law. This term comes to be applied to the procedure, although it is more usually called retractatio}^ The influence of Roman law is further evidenced by the fact that eventually the office of reformation is lodged in the hands of the Pope. The extraordinary character of the remedy remained, since it came to depend on petition, but it nevertheless must be classed as a device for review, because this was immediately involved. While it may seem curious that canonical doctrines about the reformation of judgments and the procedure of retractatio should have affected English law at an earlier date than did the ordinary remedy of appeal, not only had the retractatio been developed in connection with the theories of unjust sentences, which had become endenizened in the common law long before there were borrowings from the review procedures of the Church, but it was a remedy that was not confined to a route through a judicial hierarchy and so possessed superior attractions to a judiciary not organized along such lines. In particular, once the power of amendment was lodged in the Pope, an obvious parallel with prerogative action by the English King existed. Direct evidence is wanting that the retractatio inspired the exercise of the 103 The basic discussion is in Decretum, Causa XXXV, q. IX. This is related by certain decretists to the discussion of the types of iniusta sententia in Causa XI, q. III (cf. Summa Rolandi 233 and 25-26; Summa Rufini, 463-64, 276 et seq.), The Bamberg ordo iudiciarius, c. xxi, follows the analysis with an added reference to a decretal of Alexander III. 104 Decretum, Causa XXXV, q. IX, c. 2, diet. Grat. So, Summa Rufini, 464, in spiritual causes "semper sive ab e o iudice que pertulit sive a successore vel ab alio cuius interest." (Cf. also

Der Ordo iudiciarius des Codex Bambergensis, c. xxi). In the French Incerti auctoris ordo iudiciarius, XX, 5 5, a conflict of opinion is stated; viz., as between him to whom supplicatio is made and to a higher judge. 105 On this cf. 3 Bethmann-Hollweg, Civil prozess des Gemeinen Rechts (1864), 338 et seq. 106 See generally, 6 Hinschius, Das Kirchenrecht der Katholiken und Protestanten in Deutschland (1869-97), 131; 1 München, Das Kanonische Gerichtsverfahren (1874), 568.

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corrective function in rccordari facias, although it is apparent from some of the cases that the royal courts are proceeding on a theory that a judgment iniustum ex ordine, procedurally aberrant, may be reformed. The indications of canonical influence are clearer in the handling of the so-called certifications, particularly when considered in connection with Bracton's dictum that the jurisdiction proper lies with him who took the assise, since otherwise the judgment passes into res judicata and then needs the special intervention of the King. 107 Indeed, in one mid-thirteenth-century mandate the canonical term is explicitly used (retractavit iudicium) 1 0 8 to describe the reform of the judgment. Bracton himself employs this expression in his discussion of the procedure in cases where a recovery has been had as a result of falsely procuring the essoining of an adversary, in which event, he says, retractabitur iudicium.109 The borrowing here seems evident, since in canon law of his time the procured default of an adversary is a ground for retractatio.110 Close Roll evidence from about the time Bracton was writing is corroborative. Not only does the King (1253) explicitly declare his prerogative to reform judgments, 111 but in a number of cases his intervention after judgment is explicitly placed upon the familiar canonical grounds of fraud and stealth.112 We have dwelt upon the development of appellate devices in England because, as we have already remarked, the state of procedural advancement at the center of the empire had a direct bearing upon the handling of dominion review. The exploitation of the jurisdictional prerogatives of overlordship was in considerable degree dependent upon the mechanics of moving a cause to hearing, and equally upon some common understanding of the nature and scope of the function of review. The law of the Church had something to contribute on both these points, and beyond this, because of its universality, to the general climate of opinion in all places where the English King might undertake to exercise his powers as suzerain. 113 But apt as the feudal law may have been in justifying the jurisdiction over appeals by way of false judgment, 107 De legibus, f. 291. The expression "passes into res iudicata" is typically canonical (Deer. Greg., lib. II, tit. XXVII, c. 1 5 ) . 108 Close Rolls 7254-56, 2 ("Per quondam certificacionem . . . coram predicto Simone, retractavit iudicium"). Cf. ibid., 180. 108 De legibus, f. 336. 110 Deer. Greg. Lib. II, tit. XXVII, ce. 12, 1 3 ; and cf. Tancred, Ord. iudiciarius, tit. 3, § 3, note 14. 1 1 1 Close Rolls 1251-53, 447 ("Cum nostrum sit facta omnium justiciarorum nostrorum emendare, meliorare et retractare, si necesse fuerit").

112 Ibid., 183 (ad decepionem curie nostro et per fraudem)·, ibid., 196 (breve per surrepeionem a nobis obtinuerunt) ; ibid., 446 (recuperavi! seisinam . . . impetravit breve nostrum per ven suppressionem). 113 This was also undoubtedly the case with the appellate system of the French Kings which, as we remarked above, owed something to the canon law (ef. Fournier, Essai sur l'histoire de droit d'appel 1 9 9 - 2 0 1 ) . Here the borrowing was facilitated both by the pursuit of civil law studies in France and by the fact that the jurisdiction was exerted over causes from the pays de droit écrit.

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and influential as the canon law with its concepts of review no doubt was in the transformation of the nature of such proceedings, neither could furnish the solution to the problem basic in medieval thinking about the judicial process, that the judge must possess capacity to speak law (ius dicere) responsively both as to litigants and to the place of their abode. This problem was one that possessed a certain emotional color, and the elements that entered into the creation of this feeling about law were various. W e have in the first place the notion that the free and lawful man was born into the law as into a species of inheritance, a legacy of the time when the principle of personal law 1 1 4 prevailed. The manner and form in which this notion survived the progressive territorialization of the law in western Europe 1 1 5 was conditioned mainly upon the extent to which the individual remained an active participant in the actual administration of justice. 116 In the second place, those possessed of 1 1 4 On the personal law of the folklaw period cf. ι Brunner, Deutsche Rechtsgeschichte ( i d ed.), 381 et seq. Following the Norman conquest and colonization of England, the personal principle is followed as a matter of expediency; e.g., William's duel ordinance, Englishry, and the sufferance of the wergcld system. The pressure of territorialization already at work in Anglo-Saxon England is manifest in the regional distinctions set out in Leges Henrici 6; 6, 2. T h e subsequent policy of the King's courts toward tolerated aberrations from the consuetudines regni is in terms of place. As a result, what had at one time been enjoyed as stem-law is available only ratione loci. The concept of the legal man which at the time of conquest drew substance both from stem-law and place law receives a new content at the hands of the common law courts. On early development of the concept on the continent see Goebel, Felony and Misdemeanor, 251 et seq. On the inheritance of the common law see Goebel, Cases and Materials on the Development of Legal Institutions (1946), 174 et seq. According to Liebermann, early indications of this notion in Leges Henrici 8, 7 (cf. 2 Gesetze der Angelsachsen, Glossar, s.v. Recht 4a). In the Articuii Willelmi Retracti (c. 1210), the right to free enjoyment of lands free of ullage, etc., is allegedly granted iure hereditario in perpetuum (1 ibid., 490). 1 1 8 The persistence of the personal principle is illustrated in the Sachsenspiegel I, 16 S 1 (Hohmeyer ed.) ("Nieman ne mach irwerven ander recht, wan als im an geboren is") Cf. Schwabenspiegel, c. 13 (Gengier ed.), and Fehr, Staatsauffassung Eikes von Repgau, in 37

Zeitsch. der Savigny Stiftung für Rechtsgeschichte (Germ. Abt.), 20t. The principle of the Sachsenspiegel is to some extent exemplified in the Welshry of Wales (cf. Rees, South Wales and the March [1924] 29 et seq., 94 et seq.). The personal principle of the folklaw period is supposed to have vanished in France during the tenth century (Declareuil, Histoire générale du droit français [ 1 9 2 ; ] , 829). This is probably correct if confined to the persistence of a particular stem-law. Obviously the personal principle retained some vigor, for the law followed the person in the conquest of England, Sicily, and in the founding of the crusaders' state. Note, further, that owing to the geographical complexity of tenures it became usual to distinguish between incidents governed by the status of the land and those governed by the status of the individual (Mitteis, Lehnrecht und Staatsgewalt, 230 et seq.). Even if the latter was fixed by the law of a territory, its extraterritorial effects appear to be a recognition of the personal principle. 1 1 8 In England, on the level of royal justice, by the use of recognitions and juries, grand and petit. In France the participation is signal in some of the earlier custumals (e.g., Tris ancien coutumier de Normandie [Tardif ed.], c. 26; Beaumanoir, Coutumes de Beauvaisis [Salmon ed.], no. 1760). This interest in maintaining the customary law is no less where the judging function is by representatives or jurats; e.g., the Channel Islands, or Dax (Abbadie, Le Livre noir et les établissements de Dax [ 1902 ], Ixxiv). The Romanization of French laws, royal and seignorial pressure all tended toward the destruction of individual participation. The gap

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any jurisdiction, whether by franchise or otherwise, necessarily were concerned with the maintenance of their proper jurisprudence both for political and economic reasons. Wherever this jurisprudence was largely customary both the courtkeeper and those who lived by the custom possessed a common interest. This interest did not lose its indefeasible quality by the injection from intellectual quarters of the belief in the existence of a right rule, an idea which underlay the system of ecclesiastical appeals and was equally the rationale of the English writ of error proceeding. For a right rule was not something existent in the abstract, but in terms of a particular body of law. It did not follow that one qualified in the law of England was jurisconsultos peritus in the law of any other land under the King's lordship. The question of judicial competence generally was a political and juristic problem common to western Europe and of long standing. As a matter of internal legal development it was inherent in the relations of competitive jurisdictions with conflicting regional customs; and in places where centralizing tendencies were at work it presented obstacles to the process of integrating local and national courts, local and national customs. A solution of these various problems was further complicated by popular reaction against the spread of professional judging at the expense of the ancient community exercise of this function. 117 Although there were strong feelings of loyalty about the preservation of traditional bodies of law, these feelings had small chance of expression at the appellate level, since the theory upon which temporal appellate authority originally depended virtually excluded any practical implementation of objections to competence at the court of final instance. Whether, as in England, the ultimate authority of the suzerain rested in a particular prerogative or, as in France, upon the principle that all court-keeping rights were held of the King, 1 1 8 the suzerain was in seisin of pleas by way of appeal, and even if there had been a legal weapon to attack such seisin, there was no higher forum of recourse. Furthermore, as the false judgment proceedings were originally which comcs to separate French and English estimate of the individual is indicated by the expression couchant et levant which the French lawyers use to designate the person subject to a jurisdiction, an expression which in English law was used in connection with cattle. 117 The classical example of reaction is the indicium partum clause of Magna Carta, the intendment of which is a restoration of community judging. There is some scattered twelfth-century evidence of dissatisfaction besides the famous pun of John of Salisbury about the "errant justices"; cf. the complaints of Peter

of Blois in a letter to Henry II (207 Migne, Patrologia, 293), and Marie de France's fable, Dou leu et de l'aingniel (Bartsch, Chrestomathie [5th ed.], 270). Evidence from France may be found in Meynial, Remarques sur ¡a réaction populaires contre l'invasion du droit romain en France aux XII et Xlll siècles, in Mélanges Chabanneau (1907), 557. u s "Toute la laie iuridicion du roiaume est tenue du roy en fief ou en arriere-fief" (Beamanoir, Coutumes de Beauvaisis [Salmon ed.], no. 322). For early assertions cj. Mitteis, Lehnrecht und Staatsgewalt, 290 η. 92.

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conducted, with the trial court in loco defendentis, the party who had prevailed below, in whose interest it would be to raise the issue of competence, was in the position of a mere witness to the correctness of a record. Under these circumstances, any claims to a particular law had to be fought out at the trial stage and established with great specificity for the event of a review. This method fell short of securing the benefit of an appellate judgment by persons completely conversant with a particular body of custom. But it was a procedure which had a place in the practice of the English royal courts, and the French had something approximating it. 119 The English practice had developed as a minor incident in the proliferation of a "common" law, a process in which what began as a mere fiction was converted by effective law administration into a reality. There were occasions when for reasons of immunity, political convenience, or otherwise the royal courts would entertain a plea of a special custom. This was a matter traditionally within the sole competence of the judgment finders, and consequently it presented a point of possible collision over who might speak authoritatively thereon. With characteristic ingenuity this was evaded in the King's courts by preserving the outward form of a community pronouncement, the specification of the usage being submitted to an assize or a jury. 120 The question of its vigor as law was a decision which the judges reserved to themselves. The English solution of their domestic conflicts problem had both a theoretical and a practical bearing upon dominion appeals. It established that any particular law outside the orbit of the common law was matter in pais susceptible of proof. Consequently, when in the course of a dominion appeal the applicability of unfamiliar customs was in issue, if these were not sufficiently averred the record could be supplemented by requiring a certification of the usage from the country of origin. In thus treating the foreign law as a factum for which proof was directed to the judge 1 2 1 for the purposes of the case at bar, the issue of his inherent qualifications to speak law for a system not his own was avoided. 122 119 T h e enquête par turbe, on which cf. Pissard, Essai sur la connaissance et la preuve des coutumes ( 1 9 1 0 ) , 98 et seq. 120 placitorum abbreviano, 74 (John-Henry) ; 7 CRR, 289 ( 1 2 1 4 ) ; Bracton's Notebook., pi. 1899, pi. 1 9 0 2 . T w o cases {ibid., 1 4 7 4 , 1 6 4 4 ) indicate the nexus between such a jury finding and the ancient law-speaking (unction of the judgment finders. 121 Whether by w a y of remainder or by way of revivor, this is the theory which underlies the handling of colonial laws in the eighteenthcentury appeals. T h e eighteenth-century rule

re "particular l a w s " is in Gilbert, Law of Evidence ( 1 7 6 9 ) , 40, 4 1 . 122 T h e extent of either civil law or canon law influence in England on this is problematical. T h e inclination of the legists was favorable to the law of the judge ( 2 Neumeyer, Die gemeinrechtliche Entwicklung des Internationalen Privat- und Strafrechts bis Bartolus [ 1 9 1 6 ] 58 et seq.; and cf. the collection [note 3 ] of matter on the opinion of A z o ) . T h e English solution of their problem approaches the segment of canonist opinion which, recognizing the confusion which would follow the " l a w of

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The practice of certifying special usage probably did not come into general use until the reign of Edward I, and it was premised upon the existence of a common legal base to which occasional exceptions were admissible. In view of the pretensions to omnicompetence in the general area of customary law that underlay the operations of the English Curia Regis, 123 the practice was extensible when the base was different, but a degree of institutional similarity existed, e.g., the Channel Islands. It was obviously not adaptable to any situation where the content of the law at large was irreconcilably alien. This was the case with respect both to Gascony and to pre-Edwardian Wales. In the former dominion the customary element was set upon a Roman law base, 124 which was in fact the common law of the region. As a practical matter this meant that an official conversant with customary law and relying upon forms and substance largely traditional was confronted with an accumulation of juristic writing and a body of persons adept in its use. The King of France recognized the need of special handling of cases from the pays de droit écrit by assigning special auditors in his parlement}25 The English crown, however, used the device of associating a civilian with its other functionaries, preserving thus the balance between custom and written law. 126 The Welsh problem on the other hand was one involving a collision of profoundly different customary laws, a conflict intensified by differences of language and by the fact that the personal principle was still active in the Welsh law. During the first half of the thirteenth century, by a succession of special contracts between the English King and his vassal the Prince of Wales, the conflicts question had been regulated on a territorial principle, viz., in the judges" rule if applied in appeals, declared that the law of the case is fixed at the first instance (cf. the texts ibid., 1 1 4 , 1 1 9 ) . 123 And, we hazard, the judicial activity of the French King's parlement. Olivier-Martin, in ι Histoire de la Prévôté et Vicomte de Paris ( 1 9 1 2 ) , 27 et seq., has undertaken to delimit the expression usus et consuetudines Francii. He insists the parlement respected the territorial character of the coutumes (ibid., 33), but he overlooks the presumption of universal competence which underlay this, succinctly put by the Livres de justice et de plet, II, $ 6: "loi et costume est chose que juges doit savoir." Cf. further Olivier-Martin's instructive comment on the later coutume notoire doctrine (ibid., 83 et seq.). 124 The pays de droit écrit lay south of a line running from Oléron, across Auvergne, north of Saintonge and Limousin, and so most of the Aquitanian lands lay within it. The local

customs within the Roman droit commun are said to number 330 (cf. Chénon, Histoire général du droit français public et privé (1926), 489). 125 On this cf. Chénon, Le Droit romain a la curia regis de Philippe-Auguste à Philippe-leBel, in ι Mélanges Fitting, 197, 204 et seq. 126 The practice in some cases rests upon inference, viz., the association of a cleric with laymen, and in other cases can be directly established as, e.g., the appointment of an identifiable lawyer (cf. 2 Bémont, Roles Gascons, no. 677 [Anthony Beck, archdeacon of Durham]) or the employment of a legum professor (cf. 2 Bémont, Rôles Gascons, no. 262, 926 [Raymond Sancius, 1285]; 3 Rymer, Foedera, 3 1 9 [ 1 3 1 2 ] ; 4 ibid., 43 [ 1 3 2 3 ] ) . As we shall see infra, the appellate jurisdiction exercised by the French king would in any event have forced the use of civilians in self-protection against charges for default of justice.

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Welsh lands, Welsh law; in the Marches, Marcher law. 1 2 7 These engage· ments had no permanently stabilizing effect on political relations, which reached another crisis early in the reign of Edward I. A brief period of war was terminated by the Treaty of Aberconway (1277). This instrument contained the general stipulation that controversies between the Prince of Wales and anyone whatsoever were to be decided by the regional law of the place where they arose, but provided in another clause that if the Welsh prince wished to claim right in lands which others besides the King had acquired (excepting only the four cantreds ceded by the treaty) the King would show him full justice according to the laws and custom of those parts in which the lands were. In January, 1278, the King appointed commissioners of oyer and terminer to settle the claims contemplated by the treaty, and it immediately became apparent that this document was inadequate, chiefly because it failed to settle precisely the regional ambit of Welsh and Marchen law and took no account of the personal principle. The various conflicts problems which beset the commission have been well discussed by other writers. 128 We are concerned here only with the suit between Llewellyn, Prince of Wales, and his enemy Gruffydd ap Gwenwynwyn over Arwystli, because it was here that the fundamental question of judicial competence was raised. Llewellyn, appearing by attorney in July, 1278, made his claim to the lands before the commissioners, and after preliminary sparring over the propriety of such appearance, the case was continued to the Michaelmas sitting. But before this event the cause was adjourned before the King himself at Rhuddlan. Here, according to Llewellyn, 129 the King conceded that Welsh law should govern, and Welsh judges actually were brought in to act, when inexplicably the case was remitted to the commissioners. It should be noticed that at this session the opportunity existed of following the Gascon precedent of associating the expert in an alien law. Why this course was not followed we do not know. When the case was resumed before the commissioners, the claimant demanded that the defendant be attached according to Welsh law, on the grounds of the Welsh condition of both parties, because the lands were pure Welsh (mere est Walensica) and because of the clause in the treaty. Gruffydd in replication asserted that he was a Marcher baron holding the disputed land in barony of the King and so ready to proceed by the common law. He further • - 7 The engagements listed are in Davies, The Welsh Assize Roll 1277-84, 3. ,ïs In particular by Davies, op. cit. An earlier account is in Lloyd, Edward the First's Commission of Enquiry of 1280-81, 1 Cymmrodor, 257. The latest discussion (2 Powicke,

King Henry lit and the Lord Edward, c. xv et seq.) is strongly biased in favor o £ Edward's power politics. 129 This stage of the proceedings was not recorded and comes from allegations of Llewellyn, Davies, op. cit., 1 3 5 .

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offered precedents to establish that in the past trials between the lords Marcher and Welshmen had been according to the course of the common law, and he concluded with the averment that the King was in seisin of pleas in his Curia between his Marcher barons and Wales, to wit, before him in his Curia according to the common law. T o proceed otherwise would be in diminution of the royal prerogative.130 In their rejoinder, counsel for Llewellyn insisted that both by treaty and as a matter of common right the Prince was entitled to Welsh law because every province in the King's imperium had its own laws and customs according to its own language : the Gascons in Gascony, the Scots in Scotland, the Irish in Ireland, and the English in England; all of which was by way of enlargement rather than of diminution of the crown. 131 Since it was perfectly apparent from what had gone before that to apply Welsh law involved the employment of Welsh judges, this averment must be taken as an implicit denial of the commissioners' competence. Grufïydd, however, insisted that all the nations mentioned were ruled by and proceeded according to a single common law in Curia Regis and not by diverse laws in conflict one with another, and he reiterated his argument respecting the King's seisin of pleas. 132 What Grufïydd's contention amounted to was the familiar argument of the civilians that in cases of conflicts the law of the judge must prevail. His averments respecting the prevalence of the common law, unless taken as a reference to the community of English and Irish law or to a common stock of feudal usages, was not a correct statement of conciliar practice. On the contrary, it appears that in the justiciation of causes which had a political complexion, the Curia Regis was indifferent to the provenance of precedents urged upon it. In the earlier litigation over the Chester succession one litigant had proffered examples from overseas, and presumably had also referred to Roman l a w ; 1 3 3 in the past Welsh litigants had been allowed Welsh l a w ; 1 3 4 and near the end of the century one of the claimants to the Scottish throne saw no impropriety in urging upon the special tribunal a tus naturale for sovereigns, with a pair of "o Ibid., 266. 131

"Quod cum unaqueque provincia sub imperio domini Regis constituta habeat leges suas, et consuetudines secundum modum et usum parcium illarum ubi sita fuerit sicut Vasconienses in Vasconia, Scotici in Scocya, Yberniensis in Ybernia, Anglici in Anglia, quod est pocius ad ampliacionem corone domini Regis quam ad diminucionem eiusdem, petit idem Princeps similiter quod ipse, possit legem suam Walensicam optinere, et secundum eandem procedere precipue cum dominus Rex in composicione pacis inter eos firmata de libera volúntate sua tibi et omnibus hominibus Walensicis legem

suam Walensicam concessit unde cum de Iure communi debeat habere legem suam et consuetudinem Walensicam sicut alie nationes predicte sub imperio domini Regis constitute suas leges et consuetudines secundum linguam suam habent" (ibid.). 132 "Dominus Rex est in seysina placitandi in Curia sua inter Barones suos de Marchia et Wallia ut in eadem secumdum legem communem procetlatur" (ibid.). 13sBradons Notebook, p'· 1227. 154 Davies, Welsh Assize Roll, 16: 1 Calendar of Inquisitions, Miscellaneous, no. 1 1 5 9 .

T H E MATRIX OF EMPIRE continental precedents thrown in. 1 8 6 This tolerance of exotic citation, far from evidencing a single common law, suggests an eclecticism which one would expect in any judicial body exercising supervisory authority over dissimilar legal establishments. T h e issue in the Welsh case was referred to the crown. Edward took the position that although he was prepared to observe reasonable Welsh law, his coronation oath bound him to extirpate bad custom. 136 However, he subsequently resolved, with agreement of his magnates, to follow the precedents of his forebears, this usage to be settled by a search of Treasury rolls and by an inquest on the grounds. 187 The result of this was apparendy of a nature to justify further proceeding according to the course of the common law of England. But the issue was not finally adjudicated. Hostilities were resumed and after the Welsh were defeated the Statute of Rhuddlan (1284) was promulgated. The Edwardian settlement has been characterized as an acceptance of the medieval doctrine that "local law should conform to a higher law and be adjusted by it." 1 8 8 T h e fact is that it was nothing of the sort, for the statute, while it introduced considerable English law, made certain savings of Welsh law both in terms and by implication. The crown reserved a power of interpretation, the warrant for subsequent interference by prerogative writs, but the statute was silent on mechanisms for review, a strange omission, if Edward indeed had cherished the intentions ascribed to him. As a consequence, Wales was not drawn into the orbit of the error jurisdiction of King's Bench. After Edward of Carnarvon was made Prince of Wales, appeals were directed to him, 1 3 9 and the same practice was probably followed under the Black Prince. 140 The English courts eventually asserted that jurisdiction in error lay with Parliament. 141 135 ι Palgrave, Documenti and Records Illustrating the History of Scotland (1837), 29, 3839. 43· 138 Davics, op. cit., 60. The letter of Archbishop Peckham summarized ibid., 64, was written after Edward I's announcement. Peckham argues that a royal custom has vigor as law greater than a custom of the people: "Magis vidctur legem facere consuetude regius cuius voluntas legis habet vigorem quam consuetudo aliqua subditorum," an obvious application of the Roman law "quod principi placuit" (1 Registorum epistolarum Fr. ]oh. Peckham [Martin ed. 1882] 136). 137 Edwards, Calendar of Ancient Correspondence concerning Wales (1935), 60. iss 2 Powicke, op. cit., 667. ia · Record of Caernarvon (1838), 212, 214.

140 This rests on inference. Business not dispatched at an eyre is adjourned to the Prince's council (1 Black. Prince's Register [1930] 59). On two occasions commissions issued to hear errors and reverse them in Denbigh, a lordship then attached to North Wales (3 ibid., 406 [ 1 3 6 1 ] 463 [1364]). The power to commission implies, of course, the power in the council to hear and determine. Note, also, the allegation that in South Wales by the law and usage causes were justiciable in the principality saving only the Prince's causes (1 ibid., 59). 141 YB 19 Hen. VI, 12. In 1393 the Council entertained a complaint in error from South Wales and remanded the case for settlement there (Cal. Pat. Rolls 1391-96, 359). The several lordships were then in the King's hands.

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offered precedents to establish that in the past trials between the lords Marcher and Welshmen had been according to the course of the common law, and he concluded with the averment that the King was in seisin of pleas in his Curia between his Marcher barons and Wales, to wit, before him in his Curia according to the common law. T o proceed otherwise would be in diminution of the royal prerogative.130 In their rejoinder, counsel for Llewellyn insisted that both by treaty and as a matter of common right the Prince was entitled to Welsh law because every province in the King's imperium had its own laws and customs according to its own language : the Gascons in Gascony, the Scots in Scotland, the Irish in Ireland, and the English in England; all of which was by way of enlargement rather than of diminution of the crown. 131 Since it was perfectly apparent from what had gone before that to apply Welsh law involved the employment of Welsh judges, this averment must be taken as an implicit denial of the commissioners' competence. Gruffydd, however, insisted that all the nations mentioned were ruled by and proceeded according to a single common law in Curia Regis and not by diverse laws in conflict one with another, and he reiterated his argument respecting the King's seisin of pleas.132 What Gruffydd's contention amounted to was the familiar argument of the civilians that in cases of conflicts the law of the judge must prevail. His averments respecting the prevalence of the common law, unless taken as a reference to the community of English and Irish law or to a common stock of feudal usages, was not a correct statement of conciliar practice. On the contrary, it appears that in the justiciation of causes which had a political complexion, the Curia Regis was indifferent to the provenance of precedents urged upon it. In the earlier litigation over the Chester succession one litigant had proffered examples from overseas, and presumably had also referred to Roman l a w ; 1 3 3 in the past Welsh litigants had been allowed Welsh law; 1 3 4 and near the end of the century one of the claimants to the Scottish throne saw no impropriety in urging upon the special tribunal a ins naturale for sovereigns, with a pair of 130 131

Ibid., 266.

"Quod cum unaqueque provincia sub imperio domini Regis constituía habeat leges suas, et consuetudines secundum modum et usum parcium illarum ubi sita fuerit sicut Vasconienses in Vasconia, Scotici in Scocya, Yberniensis in Ybernia, Anglici in Anglia, quod est pocius ad ampliacionem corone domini Regis quam ad diminucionem eiusdem, petit idem Princeps similiter quod ipse, possit legem suam Walcnsicam optinere, et secundum eandem procedere precipue cum dominus Rex in composicione pads inter cos firmata de libera volúntate sua cibi et omnibus hominibus Walensicis legem

suam Walensicam concessit unde cum de Iure communi debeat habere legem suam et consuetudinem Walensicam sicut alie natíones predicte sub imperio domini Regis constitute suas leges et consuetudines secundum linguam suam habent" (ibid.). 132 "Dominus Rex est in seysina placitandi in Curia sua inter Barones suos de Marchia et Wallia ut in eadem secumdum legem communcm procedatur" (ibid.). 133 Bracton's Notebook., pi. 1227. 1,4 Davies, Welsh Assize Roll. 1 6 : 1 Calendar of Inquisitions, Miscellaneous, no. 1 1 5 9 .

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continental precedents thrown in. 1 3 6 This tolerance of exotic citation, far from evidencing a single common law, suggests an eclecticism which one would expect in any judicial body exercising supervisory authority over dissimilar legal establishments. T h e issue in the Welsh case was referred to the crown. Edward took the position that although he was prepared to observe reasonable Welsh law, his coronation oath bound him to extirpate bad custom. l s e However, he subsequently resolved, with agreement of his magnates, to follow the precedents of his forebears, this usage to be settled by a search of Treasury rolls and by an inquest on the grounds. 187 The result of this was apparently of a nature to justify further proceeding according to the course of the common law of England. But the issue was not finally adjudicated. Hostilities were resumed and after the Welsh were defeated the Statute of Rhuddlan (1284) was promulgated. T h e Edwardian settlement has been characterized as an acceptance of the medieval doctrine that "local law should conform to a higher law and be adjusted by it." 1 3 8 T h e fact is that it was nothing of the sort, for the statute, while it introduced considerable English law, made certain savings of Welsh law both in terms and by implication. The crown reserved a power of interpretation, the warrant for subsequent interference by prerogative writs, but the statute was silent on mechanisms for review, a strange omission, if Edward indeed had cherished the intentions ascribed to him. As a consequence, Wales was not drawn into the orbit of the error jurisdiction of King's Bench. After Edward of Carnarvon was made Prince of Wales, appeals were directed to him, 1 3 9 and the same practice was probably followed under the Black Prince. 1 1 0 The English courts eventually asserted that jurisdiction in error lay with Parliament. 141 135 ι Palgravc, Documents and Records Illustrating the History of Scotland ( 1 8 3 7 ) , 29, 3 8 39. 43· 134 Davies, op. cit., 60. The letter of Archbishop Peckham summarized ibid., 64, was written after Edward I's announcement. Peckham argues that a royal custom has vigor as law greater than a custom of the people: "Magis videtur legem tacere consuetude regius cuius voluntas legis habet vigorem quam consuetudo aliqua subditorum," an obvious application of the Roman law "quod principi placuit" (1 Registorum epistolarum Fr. }oh. Peckham [Martin ed. 1882] 1 3 6 ) . 137 Edwards, Calendar of Ancient Correspondence concerning Wales ( 1 9 3 5 ) . 60. 138 2 Powicke, op. cit., 667. 138 Record of Caernarvon (1838), 212, 214.

140 This rests on inference. Business not dispatched at an eyre is adjourned to the Prince's council (1 Black. Prince's Register [ 1 9 3 0 ] 59). On two occasions commissions issued to hear errors and reverse them in Denbigh, a lordship then attached to North Wales (3 ibid., 406 [ 1 3 6 1 ] 463 [ 1 3 6 4 ] ) . The power to commission implies, of course, the power in the council to hear and determine. Note, also, the allegation that in South Wales by the law and usage causes were justiciable in the principality saving only the Prince's causes (1 ibid., 59). 141 y Β 19 Hen. VI, 12. In 1393 the Council entertained a complaint in error from South Wales and remanded the case for settlement there (Cal. Pat. Rolls 1391-96, 359). The several lordships were then in the King's hands.

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W e arc disposed to regard the handling of the Welsh problem to have been in execution of Edward's professions that he was obligated to extirpate bad customs. 142 Taken in connection with the Channel Islands precedent 1 4 3 and the practice shortly thereafter introduced with respect to the Isle of Man, 1 4 4 it would appear that, far from seeking to impose a common law upon his dominions, Edward I was within limits willing to make liberal concessions to the principle that men might live by the law into which they had been born. T h e limits were fixed in reference to what may be described as his jurisdictionmindedness. It was enough that his commission would run in a dominion and that his ultimate supervisory authority was thus put beyond dispute. 145 If the appellate machinery of the latter thirteenth century was such that the capacity of the reviewing authority was secured from attack by process of law, there remained, nevertheless, an area of political resistance. T h e outstanding example here was the Gascon jurisdiction, where the K i n g of England, ironically enough, played the role of remonstrant. T h e difficulties over Gascon appeals were the outcome of the treaty of 1259 and the performance of homage by Henry III to the French K i n g for his Aquitanian dominions. Louis IX and after him Philip III did not hesitate to exercise their powers as suzerain to entertain appeals. T h e disaffected Gascon subtenants were afforded a means of vexing their superior, the duke, under color of the law, and the K i n g of France was thus enabled to muscle into the affairs of the duchy. 1 4 6 A s a result, Edward I was compelled to maintain proctors at the French court, for in spite of the rule that in the hôtel du roi appeals of false judgment were no longer to be accusations against the judge, but a continuation of the controversy inter partes,147

the normal course of

appeals within the duchy was not observed by appellants, and responsibility of the duke for the maintenance of this was no less than if a defect of justice had been the matter of complaint. Within the duchy counter measures oppresCf. the parallel in the program for Scotland (1305) which proposes the extirpation of unreasonable customs (1 Rot. Pari., 268a). 143 Cf. the commission to the warden (1229) requiring treatment according to the law and custom of the islands (Patent Rolls 1225-32, 340); the commission to take assizes (Calendar of Patent Rolls 1232-47, 18); the commission of 1309 to the justices (Rolls of the Assizes held in the Channel Islands [ Pub. Soc. Jersiaise ], 1 ). 144 Cf. the commission of oyer and terminer of 1292 for Man, where justice is to be secundum legem et consuetudinem partium illarum (Coke, Fourth Institute, 285). 1 4 3 Here again the practice in the realm may have influenced imperial policy, viz., the condi142

tional toleration of local usage by the common law courts. The willingness to admit at the trial stage the law and usage of dominions is indicated by a succession of exhibits from 1 Calendar of Chancery Warrants, 1244-1326. In 1305 the order is made that trespasses in Ireland must be tried by Irish writ not English (ibid., 253); then follow orders for trial by the law and customs of the place, Ireland (1308) (ibid., 2 7 1 ) ; Gascony (1309) (ibid., 282, 292, 297); Guernsey ( 1 3 1 1 ) (ibid., 380). 1 , 9 Discussed in Gavrilovitch, Étude sur le Traité de Paris de i2;g (1899), 84 et seq. 147 Li Livres de jostice et de plet (Rapetti ed., 1850), XVT, § ι .

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sive to appellants were used, and it appears likewise that arbitration (theoretically not appealable) was fostered. In 1283 Philip III made certain concessions with respect to penalties upon the English King and allowed a short period for the local correction of complaints.148 Nevertheless, the situation was constantly irritating, and finally, in 1298, when the issues between Philip the Fair and Edward were submitted to the arbitration of Pope Boniface, the lawminded English king came forward with the ingenious theory that his title to the Gascon dominions was allodial in nature.149 This did not avail him, for in the final peace it was agreed that he should do homage.1S0 It will be convenient at this point to notice the subsequent fate of the Gascon appeals. The problem continued to trouble Edward's successors; indeed, it is said to have been one of the motives which led his grandson to lay claim to the French crown. In any event, from 1340 onward appeals came to be forwarded to the King of England and his Council. 151 The appellate authority of France was terminated by the Treaty of Brétigny (1360), by which full sovereign rights over Gascony were conceded.162 After the Black Prince had been given the whole of Gascony and Aquitaine as a principality, the King of England retained the right of hearing appeals until 1365, when the Prince was specially commissioned to exercise final determination.153 A Curia superioritatis was created in 1370 as a court of final resort,154 but it should be observed that Edward III, like his French predecessors in title, did not regard his feudal rights as extinguished and on occasion took cognizance of certain appeals.165 The final settlement of the Gascon appeals problem was one largely forced by events, although there is earlier and later evidence to indicate decentralizing tendencies at work. The earlier evidence relates to Ireland and consists of a royal mandate directing the hearing of appeals in the Irish Parliament.156 It seems probable that jurisdiction of King's Bench in error was to be supplanted, but if this was the intention it did not so eventuate. The later evidence relates to Calais. Here the inhabitants complained in Parliament that judgments there should be corrected by persons who knew the law of the place. 157 148

Langlois, Le Règne de Philippe III le hardi (1887), 282. 149 Rothwell, Edu/ard l's Case against Philip the Fair over Gascony, in 42 EHR 572; Chaplais, English Arguments concerning the Feudal Status of Aquitaine, in 21 Bulletin Institute Historical Research, 203. 150 2 Rymer, Foedera, 923. 151 Lodge, England and Gascony, 11 ¡2-1453 (6 History) 136 η. ι . 152 6 Rymer, Foedera, 465. 133 3 Rymer, Foedera, pt. ii (Rolls ed.), 893.

154

Lodge, op. cit., supra η. 1 5 1 , 138. Ibid., 136 η. 6. Cf. also the commission of August 22, 1389 (7 Rymer, Foedera, 462); the special appeals commission of Jan. 1 7 , 1390 (ibid., 653); of July 10, 1414 (9 ibid., 1 5 2 ) ; of March 8, 1427 (10 ibid., 389). 156 1 Berry, Statutes, Ordinances and Acts of Parliament 0/ Ireland, 406 ( 1 3 5 5 ) . 157 An appeal had been taken to Council and commissioners had been assigned to terminate the cause (3 Rot. Pari., 67b). The petition complaining of this was referred. 155

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This function had been discharged locally by commissioners, a practice resembling that used from time to time in Gascony. The roy^l response to this petition was to grant an additional clause to the charter that no errors were to be corrected out of Calais unless the King were a party, and pleas of land and tenements were involved.158 Taken together, these three episodes may be regarded as a partial surrender to the pervasive conviction that a man was entitled to a judgment by those competent in the law of the place. In no case, however, was the ultimate right of appeal to the King cut off, but such recourse was now conceived to be exceptional. With this volte face, the opportunity of building some offset against the underlying weakness of the medieval empire—the heterogeneity of the private law—was virtually lost. The feudal theory which centered in the suzerain the ultimate power of supervision and correction was itself no absolute impediment to a development of some uniformity which ought to have been furthered by the employment of substantially identical forms of process. The English Kings, however, came close to achieving legal community only in the case of Ireland, for elsewhere political expediency and especially the pressure of localism in its various guises made each dominion a problem for particular treatment. It was typical of the times that nearly everything was laid upon the recognition or maintenance of the royal claims to jurisdiction. This objective was served as well by a delegation via royal commission or by referring a cause back, as by actual hearing coram rege. The centrifugal tendency of these ideas as much as anything else prevented the appeal jurisdiction from developing into something more than a political instrumentality. One may doubt if any other result would have attended the centering of appellate authority in King's Bench, a policy briefly extended under Edward I with respect to Scottish causes.159 For even under the most favorable circumstances, the appellate device is the poorest of all ways of building either a sense of legal community or a coherent body of law. Too much depends upon the ire and resolve of litigants, the length of their purses, and in the Middle Ages upon their capacity to pursue the King ubicunque fuerit. One may further question how successfully the men who lived by the Register of Writs would have dealt with problems from the pays de droit écrit or some knotty fragment of the laws of Hywel Dda. The medieval King's Council, for all the vagarity of its personnel, was tinctured with a cosmopolitanism that put it closer in touch with far-off places. If it failed in its judicial capacity to propagate legal community in the empire, at least it set the precedents of jurisdiction for its lineal 158

Upon a second petition (ibid., 87). 2 Sayles, Select Cases in the Court of King's Bench (Seiden Soc.), lxii; cf. also Richardson 159

and Sayles, The Scottish Parliaments of Edward I, in 25 Scottish Historical Review, 300 et seq.

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successor. In its achievements it suffers little in comparison with the eighteenth-century Privy Council. Some of the greatest judges of that age—Holt, Hardwicke, Willes, Northington, and Mansfield—participated in appellate hearings there, but the Privy Council's contributions to the whole body of law were of the slightest.180 There remains to be considered one further problem—the matter of imperial enactment. Because this was once a burning issue in our own history, it has been largely discussed, and mainly in the terms in which it confronted the American colonists. The question had somewhat different dimensions in the Middle Ages and assumes its proper proportions only if one starts with the premise that initially the law-speaking function is a whole thing. To state this more precisely, so long as custom is the chief constituent of the law men live by, official pronouncement on the law is declaratory of something continuously in esse, even if just discovered. In consequence, whether such pronouncements are by way of judgment or are merely expository, whether they state something of indisputable antiquity or propound something novel, it is all one. The distinctions which come to be drawn in terms of the provenience of rules are by force of changes in the agencies of pronouncement. In feudal practice a single agency discharges the law-speaking function in all its aspects, and whatever the prerogatives of courtkeepers in the various echelons of the structure,181 the participation and consensus of those who owe suit in curia is in theory indispensable.182 This principle, had it been rigorously applied in the several dominions of the English King, would have resulted that at the top level only Irish chief tenants would have been competent on Irish matters, or Gascons on Gascon matters. This did not happen, partly because of changes in the composition and character of the dominion councils and partly because the capacities of the suzerain were altered through the promotion of the kingly office. The reasons of practicality and convenience which had made the great officeholder as indispensable in the English Curia Regis as the tenant in capite also had their effect upon the constitution of the local councils in Ireland 1,0

Infra, pp. 464, 661. Early manifestations of a courtkeeper's legislative power are discussed in 1 Goebel, Felony and Misdemeanor, 229 et seq. 1β - The elements which combine to make consensus necessary are various. The contractual relation of lord and man, contemplates among other things the protection of the man's legal rights. These are asserted before the association of vassals similarly bound (viz., the curia). Any pronouncement which involves either the details of the contract or the underlying law upon 181

which this rests needs the agreement of those similarly under contract and living by the same law. The term judicium parium embraces this as well as the more widely discussed status aspect. On the development of this, see Mitteis, Lehnrecht und Staatsgewalt, 82 et seq., 292. Cf. as to England, Stenton, First Century of English Feudalism 1066-1166, 3 5 et seq. Clarke, Medieval Representation and Consent ( 1 9 3 6 ) , 247, confines the discussion of consensus too closely to the tax power.

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and Gascony. 163 The recasting involved a conversion of the relatively selfcontained feudal curia, such as had earlier flourished in the great honors, into a body susceptible of functioning as a stage in an administrative hierarchy. Inevitably the power of origination is cut down, and these bodies are made to serve as recipients of policy directions from above. At the same time a sphere of local authority is conserved, the content of which is subject to considerable fluctuation. In certain particulars these councils resemble the later American provincial councils, but it will not do to put them in a chain of title until their history has been more thoroughly explored. The Welsh principality was subjected to special handling. Here the Statute of Rhuddlan, having reserved to the crown large powers of interpretation, addition, and subtraction, put beyond doubt the dependency of any local agency to the royal will. As the central administration of this place was organized under Edward of Carnarvon, 1 6 4 and later under the Black Prince, 165 a degree of insulation was achieved. This did not involve any return to feudal principle, for we have here a studied reproduction of royal organization. The dispositions put one in mind of the eighteenth-century proprietary colonies, a parallel which embraces the supervening power of royal ordinance and the subject's eventual recourse to the crown. The capitis diminutio suffered by the curiae in the several dominions was a development of some significance in the evolution of imperial administration, since it proved to be a preparative for the exercise of an ordinance power by the King in which the element of consensus was minimal. This could hardly have come about if the feudal character of the councils had been maintained, and if the principle of participation in declarations of law and custom had not been undermined. These changes were accompanied by a progressive enlargement of the suzerain's authority, a process of accumulative intervention which eventuated in a new legal theory. This is a process with which any American who has watched the advance of executive power in the last half century is fully cognizant. We have been using the term "suzerainty" as if the content of the King's lordship was substantially the same in every dominion. The common law courts, whether following the line of their property concepts or, later, their prerogative theory, seem to have recognized only distinctions in the manner of acquisition of dominion. This possessed some legal significance, but it was 163 On the Council of Ireland, see Clarke, Fourteenth Century Studies ( 1 9 3 7 ) , 1 ; cf. also Richardson and Sayles, The Irish Parliaments of Edward I, in 38 Proceedings of the Royal Irish Academy, 1 2 8 . On the Gascon council, see Lodge, Gascony under English Rule, 1 4 4 et seq.

104

Waters, The Edwardian Settlement of North Wales ( 1 9 3 5 ) , 3 1 et seq. 5 Tout, Chapters in the Administrative History of Mediaeval England ( 1 9 3 0 ) , 297 et seq., 3 8 2 et seq.; Evans, Flintshire Ministers Accounts, 1328-53 ( 1 9 2 9 ) , vi et seq. ln5

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too rough a classification, for it concealed the nuances of political relations which, as we have already noticed, made each dominion a special problem in the matter of appeals. We think such factors were equally involved in the growth of the ordinance power. Both in Ireland and in Wales the fact of conquest was a warrant for action with respect to the law at large that did not exist in places like the Channel Islands or Gascony. The introduction of the common law in Ireland was in exercise of a prerogative that arose out of the circumstances of acquisition. Once this law was there planted, however, the reasons which supported the exercise of supervisory authority over the legal system within the realm were equally applicable to Ireland. Similarly, and in spite of Edward's pious professions about his sworn duty to root out bad customs, the Statute of Rhuddlan was the act of a conqueror. Whatever was done by way of royal ordinance thereafter, must in the light of the statutory reservations rest upon the same title. Elsewhere the English King stood upon softer legal ground. The Channel Islands he had as duke of Normandy, and Gascony as duke of Aquitaine. In both places factors operated to confine his actions within the bounds of feudal tradition. The Channel Islanders fortified their claims to local control of immemorial custom by alleged concessions from John. 1 ® 8 In Gascony the opening of an avenue of recourse to the French King was an obstacle to a ducal manipulation of royal prerogative. Nevertheless, in both places, a body of precedent for extraordinary interventions by the overlord was built up in the course of the thirteenth century.1*7 These interventions can hardly be explained as proceeding only from a free and liberal exercise of authority to redress defects of justice. There is involved here a confusion of capacities, a political manifestation of the property rule that an inferior title is drowned in the acquisition of a superior title. This is shown in sources of Henry Ill's reign in the accumulation of acts by the crown done on the basis of mere "grievous complaint" or for specific cause. Apart from any deliberate policy of acting like a king in situations where he could have been approached only as a duke, the merger must have been abetted by the employment of common administrative machinery and equally by the importunities of men with grievances. For these are, of all people, the least likely to weigh or be put off by nice legal distinctions respecting the capacities of the locus supplicandi. The impact of constant response to petitions of the most diverse sorts from all corners of the King's dominions is apparent in the concluding sentence of chapter 17 of the Statute of Westminster I. Here a new remedy had been laid out to deal with unlawful distresses. If these should be done in the Marches of 1ββ leI

Infra, p. 7. E.g., in the Channel Islands by the transfer

of cases coram rege; in Gascony, by the use of quo warranto.

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Wales or "in any other place where the King's writ be not current the King who is sovereign lord of all shall do right to those who complain." l e 8 This announcement is hardly to be restrained to the circumstances which appear to have induced it. In the light of what had been done before and what was to be done thereafter, it stands as a formal statement that the King's remedial prerogative is available, even as against one otherwise immune from royal process. Coming as it does at the opening of a period of sustained legislative activity touching the dominions and the realm alike, it signifies an accretion to the conventional legal theory of lordship beyond anything theretofore admitted. The area in which Edward's advanced views of his remedial prerogative was brought to bear in most novel and effective form may be described as that of law improvement. This was accomplished by institutionalizing the petitionary device and by a certain crowding of the remedy beyond the expectations of the petitioners. A n aura of ostensible compliance with accepted ideas about the law-speaking function was achieved through the medium of council— small, great, or, in its ultimate and most exalted shape, the Parliament. It is easy to be misled by Whiggish raptures over the growth of government by representation and consent within the realm into supposing that the dominions were equally blessed. 169 The truth is that they were not. The parliaments were for them a remote stage upon which they rarely played even a walking-on part, however much their petitions may have contributed to the script of what others were enacting. In so far as statutes directly affecting the dominions are concerned, these were done in pursuance of the ordaining power of the crown, for, as to them the ancient paraphernalia for making definitions of the law affecting the whole community was abandoned. The conclusions of English parliaments on imperial business were made colorable by the mechanics for the reception and audition of petitions upon which the crown was to act after due conciliar advice. There inhered in such petitions an implicit estoppel on the supplicant's questioning the jurisdiction besought. And although this could scarcely be supposed to extend to the community at large, it did not mean that the effects of parliamentary or conciliar recourse could be escaped. For if the response involved a remedy of general application, it could be thrust upon all by the formula of grant out of special grace and 168

ι Statutes of the Realm, 3 1 . Schuyler, Parliament and the British Empire, 33, refers to the fact that from the earliest times parliaments were imperial in the scope of their authority. His emphasis is upon the indurated conciliar quality of these assemblages, and he is not concerned with the issue of rep169

resentation. As a matter of legal theory, the persistence of the curial fiction respecting Parliament assured the maintenance of a jurisdiction once successfully asserted and exercised even in the face of the political doctrine of representation as it developed in the fourteenth century,

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affection. 170 The assurances of benefaction which appear in the title of the Stamp Act (1765) 1 7 1 have their precedent in the terms used in the writs communicating to Ireland the Act for the Scotch subsidy (1299) 1 7 2 and the Statute of Carlisle (1307). 1 7 8 The footing upon which the power of promulgating changes in the law of the dominions was placed not only immunized this power from the pressures which representation in fact could bring to bear (as happened within the realm), but likewise allowed for a greater flexibility in the process of enactment. In other words it was possible to exercise the power of ordinance in small council as well as great council, the particular medium being chiefly a matter of political convenience. The Welsh ordinances of 1318 1 7 4 were enacted at the Parliament of Lincoln (one of the few occasions on which the Welsh were summoned), but some years later the important Gascon ordinances were ordained in Council. 175 Some of the legislation for Ireland was by act of Parliament, but some of no less consequence was confected in Council. And in 1358 certain regulations made in Parliament for the London goldsmiths were extended to Gascony by letters patent as the unilateral act of the crown. 179 In so far as any principle of choice is discernible, it seems to be this : that the act of Parliament will be used where the profit of the realm is involved especially in matters of general commercial interest; e.g., the staple and the traffic in wine. 177 Otherwise we have inconsistency, another manifestation of the medieval tendency to dispatch governmental business without regard to its 170 For the early period, cf. Jollifle, Constitutional History of Medieval England (1937) 337; and for the later, cf. Finance and Trade under Edward 111 (Unwin ed., 1918), xxii-xxiii. m St. 5 Geo. ΠΙ, c. 12 ("toward further defraying the expenses of defending, protecting and securing" the colonies). 172 ι Berry, Statutes, Ordinances and Acts of Parliament of Ireland (1907), 229 ("for the safety of our royal crown and for the common advantage of our Kingdom and of our lands"). 173 Ibid., 241 ("for the common utility of the people of our realm and the improvement of the state of our entire dominion"). 174 The Statutes of Wales (Bowen ed., 1908), 27 et seq. 176 3 Rymer, Foedera, 991. An important change in private law for Gascony was made 47 Edward ΠΙ with the "great council" (text in Prynne, Animadversions on the Fourth Part of Code's Institutes [1669],399). Henry V's order re the functions of the Constable of Bordeaux was apparently done without benefit of Council {cf. 16 Archives historique du dé-

partement de la Gironde, 63). Similarly in 1423 an order re coinage was issued as the King's own act (10 Rymer, Foedera, 3 1 3 ) . 179 Livre des Bouillons in 1 Archives Mun. de Bordeaux, 122. 177 Cf. the preamble to the Ordinance of the Staple, in 1 Stat. Realm, 332. On the wine traffic, cf. Sargeant, The Wine Trade with Gascony, in Finance and Trade under Edward III, 257 et seq. The statute 27 Edw. Ill, c. 5-6, is constructed in terms of restrictions on English merchants, but has a territorial scope. The statute 38 Edw. Ill, c. 10, imparts personal privileges of trade in England to Gascons. Both of these acts are interesting exhibits on legislation over persons on an allegiance theory. Similarly, the statute 23 Hen. VI, c. 17, is an injunction against impositions by King's officers in Gascony on wine buyers there without national limitation except they be lieges of the King. Note finally the statute 42 Edw. ΙΠ, c. 10, permitting children born in Calais, Guiñes, Gascony, and elsewhere in lands belonging to the King, to inherit in England.

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nature, by the most opportune available means, provided no jurisdictional impediments stood in the r o a d . 1 7 8 T h e amount of innovating ordinance by the K i n g in Council or in Parliament was not great. T h i s w a s not alone due to the fact that to set the engines of change in motion some earnest "beseeker" was usually necessary. It was partly because of the coexistence of dominion councils or local parliaments where the lesser matters of legal refurbishment could be handled. T h e most active of these appear to have been the Irish bodies, and the most motionless the councils of the Prince of Wales. T h e contrast may be simply because so little is k n o w n about the nonadministrative work of the Welsh councils, but it may also derive f r o m the fact that both the governed and the governors were inclined to treat the Statute of R h u d d l a n as a charter of franchise that left with the crown the legislative initiative. In Gascony the estates which convened occasionally were a body which had no recognized legislative p o w e r 1 7 9 and the ordaining functions were exercised in the local council which appears to have operated in imitation of the K i n g ' s Council, although we do not know upon what principles it was necessary for the seneschal or king's lieutenant to act upon advisement. 1 8 0 T h e s e matters, like the other phases of the medieval imperial administration, still await the searching hands of scholars. T h e one aspect of the enactment problem which is wrapped in the greatest obscurity relates to the central control over the changes m a d e by local bodies. If a matter was sub judice, as in the case of appeal, the device of certification of local practice had been available since the time of H e n r y III. By this means it was possible to accept or to reject the practice, exactly as the c o m m o n law courts could pass upon an English usage or by-law. This, however, was a fortuitous method of control and was scarcely a substitute for an administrative supervision such as came into being with the T u d o r s . W e , are disposed to believe that no studied supervision existed except as to Ireland, and that as to other dominions central action was extraordinary, that is, it was exercised by way of specific relief or, occasionally, by prohibition after the fact. T h e reasons for a particular policy with respect to Ireland are obvious. T h e A n g l o - N o r m a n establishment long maintained the characteristics of a colony, 178 T h e existence of some grounds of distinction, however, is suggested by a letter of E d ward III to the Sire d'Albret ( 1 3 7 2 ) in 3 Archives historiques du département de la Gironde, 2 7 5 .

Cf. Lodge, Gascony under English Rule, 1 4 6 - 4 7 . T h e meeting at Angoulême of 1 3 6 8 is remembranced in 3 7 Archives historiques du département de la Gironde, 369. 180 For example, the ordinance of Oliver 179

Ingham ( 1 3 3 3 ) respecting costs in D a x courts is made with the advice of his council ( 3 7 ibid., 2 3 2 ) ; similarly the ordinance of the Duke of Lancaster ( 1 3 8 9 ) makes a recital of conciliar advice (ibid., 4 4 8 ) ; but his ordinance for Dax of 1 3 9 5 (ibid., 440) is apparendy his o w n act. Cf., further the recommendation of Henry V I to John Radcliffe that he take the advice of his council on imposts for defense ( 1 6 ibid., 4 ) .

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that is, a transplantation of culture had taken place, and a great deal of effort was expended to keep this intact, a matter of especial concern being the integrity of the common law. Those who were governed by this law were surrounded by "hostiles," a depressed majority who lived by their own "lewd customs," 1 8 1 which, in spite of English contempt, possessed an attractive force sufficient to lure many of the conqueror race over the line into a sort of purgatory which lay between the heaven of English mores and the hell of the Irish way of life. These so-called debased Englishmen were a serious problem, for they were sui juris and so constituted a political threat to the principles of subjection which were the cornerstones of Anglican administration. We have already remarked upon the fact that during the thirteenth century, by direct royal mandate introducing English law or via the jurisdiction exercised by transfer or appeal, the crown kept the Anglo-Irish legal system under supervision. In the light of this long-sustained policy it seems improbable that when, under Edward I, parliaments were convened in Ireland, the initiative in law improvement was allowed to slip from the overlord's hands; since the crown could still ordain of its own motion, there is every reason to think that the word from above had as much to do with legislative output as the petition from below. This is not only to be inferred from the fact that an Irish Parliament will enact English statutes the enforcement of which had earlier been ordered by the crown 1 8 2 but is also more directly demonstrable from a 1310 request from Edward II for specific legislation,188 and the later instructions of Edward III to William of Windsor (1375). 184 Further to be noted are the representations to the crown made by Irish councils or parliaments concerning the state of the country to which royal responses were made article by article,185 or which, as in 1368, resulted in the confection of ordinances for subsequent action by the Irish Parliament.186 If legislative effect is to be attributed to such representations, it would appear that we have in rudimentary form a supervisory device similar to that employed for the control of American colonial enactment. There is a discernible parallel between the constitutional situation of Ireland and the later royal colonies, for in both cases a deputy 181 This is Coke's rendition of the "malueis custume" of the Statute of Kilkenny (1366) (cf. Fourth Institute, 358). 183 E.g., the statute of 1320 re St. Westminster I, St. Westminster Π, and St. of Gloucester (1 Berry, op. cit., 281 et seq.). 183 Ibid., 263. It is conceivable that the measures designed to prevent the debasement of the English, like that of 1297 with regard to tonsure and dress (ibid., 2 1 1 ) and the Statute of Kilkenny (1366) on the proper etiquette of riding (ibid., 435) were inspired from Westminster.

184

ι Richardson and Sayles, Parliaments and Councils 0/ Medieval Ireland (1943), 55. 185 ι Berry, op. cit., 332 et seq. ( 1 3 4 2 ) . «β Ibid., 408; cf. also Cal. Close Rolls /364-68, 466. See also the representations of 1 3 8 ; (ibid., 484) (no legislation), and of 142t (ibid., 562 et seq.). In Richardson and Sayles, op. cit. supra η. 184, 19, are representations hitherto unpublished. Betham, Origin and History of the Constitution of England and of the Early Parliaments of Ireland (1834), 352 et seq., has a set of the year 1428.

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presumably qualified to signify royal a s s e n t 1 8 7 participates in the legislative act, but in neither case does this preclude the exercise of supervening royal prerogative. Whatever may have been the implications in England of the fourteenth-century legal theory that it is the K i n g who makes the laws with the assent of peers and commons, 1 8 8 this involved for Ireland a right of personal action by the overlord exactly as was subsequently claimed and exercised by the sovereign in the American plantations. This comprehended in medieval times a power of avoidance, a fact which is demonstrated by the order of E d w a r d III commanding the cancellation of the enrollment and record of certain imposts granted by William of Windsor's first Parliament, on the ground of alleged irregularities in the procurement. 1 8 9 T h e succession of events which led to an eclipse of the principles by which the Irish dominion was governed need not here be examined. They are important to our discussion only in their results—the enjoyment of a season of autonomy and the open rejection of the dependency of Irish law. T h e latter was imbedded in an act of the Irish Parliament (1460)

190

which very ex-

plicitly renounced ancient feudal conceptions by laying claim to a corporate existence, limited only by an obedience to the "realm of England." This obedience was in turn qualified by a further claim to separateness with respect to laws and statutes except as specifically adopted, a declaration fortified by a provision designed to restrict the process of the Great Seal and substituting therefor the Irish seal, which alone could compel a man to answer an appeal. That the Irish Parliament was intent upon a restatement of the imperial relation may be inferred f r o m the reference, by way of justification, to the separate legal systems of the N o r m a n and Gascon duchies. T h e new dispensation was to be short-lived, for once the English civil wars came to an end, the first T u d o r , although in other respects no friend of feudal institutions, set about to revive the incidents of his lordship over Ireland. T h e steps by which this was accomplished are well k n o w n . 1 9 1 W e are concerned here with two of the acts of the Drogheda Parliament (1494-95) held by the 187 Explicit powers with respect to the Parliament were apparently not incorporated in the viceroy's commission until the fifteenth century (cf. the commission to Ormond in Prynne, Animadversions on the Fourth Part of Code's Institutes [ 1 6 6 9 ] , 4 1 2 ) . They certainly were implied before that time. Some of the royal confirmations recite the assent or agreement of the viceroy (e.g., 1 Berry, op. cit., 278 [ 1 3 1 6 ) ; 280 [ 1 3 2 0 ] , and cf. the recital in the Statute of Kilkenny [ 1 3 6 6 ] , ibid., 430). 1S « Υ Β 22 Edw. III, Hi!., f. 3b.

188 Prynne, Animadversions, 303. The mandate requires an examination of the premises. This distinguishes the annulment from the singlehanded revocation of the English statutes enacted in 1340 (on which see 2 Stubbs, Constitutional History of England [4th ed.], 4 1 0 - 1 1 ) . On the Windsor administration, see Clarke, Fourteenth Century Studies, 149. 190

2 Berry, op. cit., 649, 662-65. Conway, Henry Vll's Relations with Scotland and Ireland ( 1 9 3 2 ) , 42 et seq. 191

THE MATRIX OF EMPIRE

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King's deputy Edward Poyning. The first of these was the blanket extension to Ireland of all statutes of England belonging to the common or public weal of the same 192 —a rough-handed departure from the earlier policy of selective extension, but a highly significant rejection of the recent Irish claim themselves to be judges of the matter. The second act is the justly celebrated "Poyning's Law" by which the King's control over the legislative process in Ireland was to be resumed. 193 The mechanism introduced by this statute was remarkable in that before any Parliament was convened, the King's lieutenant and his council were to certify to the King the "causes and considerations" and such acts as it seemed to them should pass at the ensuing Parliament. The King and his Council were to affirm such of these items as seemed good and expedient, and the royal license thereupon under the Great Seal was to serve both as an affirmation of the causes and the acts and as a summons for the Parliament. We are not prepared to say whether this procedure was novel or whether it was an adaptation of medieval practices with respect to representations on the state of the country, already mentioned. 194 In any event, it was not completely out of the contemporary pattern for dealing with types of inferior enactment. Many years earlier the English Parliament had set up local machinery for the examination of gild ordinances within the realm, 195 and less than a decade after the passage of Poyning's Law another act of Parliament provided for a central supervision of corporate by-laws. 198 The safeguarding of the prerogative and the maintenance of common law supremacy were both involved in these measures, motives which were equally active in the work of the Drogheda Parliament. As the statute was actually executed, 197 it was at first regarded as sufficiently flexible to allow new bills to be transmitted for approval after Parliament had convened, and there is evidence even that bills were amended in Parliament without being resubmitted. Subsequently this practice was corrected by forwarding the amended bills to England, the final action in Ireland being taken at a subsequent session. A clarifying statute passed in Mary's reign 1 9 8 recognized the right of the governor and council to send draft bills to England while 10 - ι Statutes at Large Passed in Parliaments Held in Ireland, c. 22. On the interpretation see Coke, Fourth institute, 351; "Parliament in Ireland," 12 Co. Rep. 109, i n . 193 ι Statutes at Large (Ireland), 10 Hen. VII, c. 4.; and corrected text in Quinn, Early Interpretations of Poyning's Law 1494-1534, in 2 Irish Historical Studies, 242. 184 Supra, p. Iv.

185 St. 15 Hen. VI, c. 6 (1436); 4 Rot. Pari. 507. 19e St. 19 Hen. VII, c. 7 (1503). 197 Cf. Quinn, op. cit.; Edwards and Moody, The History of Poyning's Law, 1494-1615, in 2 Irish Historical Studies, 415. 198 ι Statutes at Large (Ireland), 384 Ph. & M., c. 4.

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THE MATRIX OF EMPIRE

the Irish Parliament was in session and explicitly asserted the crown's right to amend. The legislative competence of the Irish Parliament was restricted to such acts as the King had approved. Whatever were the defects of this system in furthering self-government, without doubt it possessed certain virtues for imperial administrative purposes. The issue of the suspensive clause never came up as it did in regard to the American acts of assembly, because the Irish acts had no force as law until the King's approval had been signified. Furthermore, the provision for amendment by the crown left room for political give and take and avoided the shortcomings of the mere disallowance as it was used in the system of plantation review, a procedure that led to endless friction, because no provision for quick compromise was present. 199 It is apparent from what has been said that the machinery of Poyning's Law did not serve as a model for the less efficient measures later taken to police the output of American provincial legislatures, although in the early stages of contriving a scheme for overseeing colonial laws the Irish usage was recommended by a committee of the Privy Council, actually attempted for Jamaica and then, under pressure, abandoned. 200 The main significance of the Irish statute is what is contributed in affirmation of a constitutional right of the King to control the legislative processes in his dominions, and its influence in this respect was, we think, the more because it was a continuing precedent on the matter. Beyond this role as a vital link between the legal theory of the Middle Ages and that of the age of American settlement, the statute had certain direct effects upon the administration of the royal prerogative. The most important of these was the centering of the supervisory function in the Privy Council, historically the forum conveniens, for dominion business. This not only assured the existence of an area of jurisdiction when new dominions were acquired but also contributed to the survival of the same after the Long Parliament had otherwise disemboweled the Council. 201 Moreover, the establishment within this area of certain patterns of policy and procedure to some extent determined the course of things upon the accretion of new responsibilities. An indication that this was so is to be found in the practice of submitting Irish bills to the law officers of the crown, pursued in the reign of James I, 199

In the early years of the Board of Trade there were a few occasions when the board undertook upon legislative review to draft acceptable acts or to specify upon disallowance what was needed to make the act acceptable. In a few cases the colonists sent drafts of acts to England for opinions (cf. Russell, The Review of American Colonial Legislation by the King in Council [ 1 9 1 5 ] 9 1 - 9 2 ) . In general, how-

ever, there was nothing resembling a consistent policy of co-operation with the colonies on securing acceptable or properly drafted acts (cf. infra, p. 503). 200 1 APC, Col. no. 1 1 7 7 ( 1 6 7 7 ) . The Irish method was rejected April 4, 1679 {'bid., no. 1257)· Cf. also ibid., no. 1274. 201 St. 16 Ch. I, c. 10.

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lix

resumed under Charles II, 2 0 2 and subsequently standard usage for reports upon colonial acts. Quite understandably, English administrators of the early eighteenth century who stood watch over this legislation conceived of their powers in terms of the current handling of Irish bills. 203 If we have seemed to belabor the Irish precedent and its role in connecting a very old administration with one more recent, it is because of its diuturnal character and because its very obviousness makes it a piece of speaking evidence capable of persuading the most skeptical. The significance of the several things done with respect to the medieval dominions necessarily gains stature if these deeds can be brought into a causal relationship with the ideas and the contrivances employed in ruling the New World possessions. This problem is one of relevancy as lawyers understand the term. As we shall notice in a moment, the accumulation of medieval legal doctrine was made relevant as a matter of law a year after Jamestown was settled, and as a result we believe that various ancillary practices were carried along into the succeeding decades. The whole matter is one of profound importance to the development of what has come to be called the Atlantic community, and it deserves to be lifted out of the obscurity in which it has hitherto lain. This neglect may be ascribed in part to the unhappy partition of history into ages, eras, and periods, a division invented as a convenience, but which has so worked upon historians that one who holds a warrant for the colonial period will not serve it on some fugitive fact in the precincts of the Middle Ages. It may be attributed in part to the small esteem accorded to legal materials as sources of general history, an attitude which has made them too often dispensable even in the reconstruction of political institutions. By thus misprizing these rich resources historians have immunized themselves from the mellowing effects which follow upon a due familiarity with the law's monuments. For if there is one thing of philosophic worth to be derived from acquaintance with the common law practice of precedents it is an awareness of the principle of constant encroachment—that the bounds of the past overrun those of the present and that in the marches of the present the limits of the future will be found. It is this principle which guides the lawyer who has a hard search to make in the complex genealogy of rules, in the hunt for genes in an old judgment or recent that may produce a predictable offspring tomorrow. It is a principle, moreover, which may be applied with equal profit to the tracing of any phase of human activity which has displayed an inherent longevity, and 202 APC, Dom., 1613-14, 166, 602; APC, Dom., 1615-16, 1 5 , 90; CSP, Ireland, 1663-65, 3 1 5 , 708, CSP, Ireland, i666-6g, 532. 203 CSP, Colonial, 1704 no. 282 (Popple to the

Attorney General and Solicitor General requesting an opinion on certain Virginia laws: "These Bills may be altered in any part thereof as Bills transmitted from Ireland").

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in particular to the seeking out of the lineage of any instrumentality of government. Lawyers are fully cognizant of this, although their probings into past facts and circumstances are rarely as relentless and complete as their inquiries into the historical ramifications of legal rules. In consequence, their results as often as not fall short of the exacting standards of sound historical performance, and doubtless it is this failing which has helped to determine the laymen's valuation of legal sources at large. But whatever may be the shortcomings for scientific purposes of the history that gets written into judicial decisions, this is no reason to assume that they are completely bereft of virtue or to bell them one and all as lepers, at any hazard to be shunned. There are many cases in the books, particularly in the field of public law, that have served as conduits of matter from the past into their own present and so on into the future. T o the extent that they embody material of legal or of official character immediately useful, they serve as source books of action for their time, a fact which should at once stamp them as historical documents of the first order. This quality, we believe, deservedly attaches to certain judgments of the seventeenth century composed at a stage in the art of advocacy and of judicial argument when the range of acceptable citation possessed a richness and variety it was never again to have. One of the most notable of these was the great report, written by Sir Edward Coke, which brought to the doorsteps of Stuart administrators the muniments of the medieval empire—-the report of Calvin's Case (1608). 204 The judgment here was a landmark in the settlement of the constitutional relations of England and Scotland; from the manner of its grounding, it was destined also to fix the constitutional status of the new plantations. Ostensibly the matter at issue was the question of the rights before English law of an infant Scot but the underlying problems were of such portent that the cause was adjourned to the Exchequer Chamber to be argued finally by the Lord Chancellor and the judges of the three common law courts. The argument traversed some of the most basic constitutional questions ever raised in an English court, matter which for convenience was ranged by the reporter under the four words: laws, kingdoms, ligeance, and alienage. The implications of these were so thoroughly explored in their history, both within the law and without, and the conclusions of the court were so firmly buttressed by lavish citations from past official action as to settle beyond a peradventure the immediate availability of any rules developed in connection with medieval dominion administration. These were made relevant to the relations with the New World establishments, not merely through subsequent direct 204

7 Co. Rep. ι.

T H E MATRIX OF EMPIRE

Ixi

judicial application but also by the fact that royal policy with respect to the American dominions was executed along the lines laid down in the case. It has been for its prospective effects that Calvin's Case has been regarded, if at all, by political historians. It has stood for them a mere abutment, not as a bridge between two of their eras. The remarkable array of matter culled from records and reports to support the court's determinations has remained for them an inert mass of precedents—the documents no doubt made suspect for sitting cheek by jowl in the pages of the report with legendary heroes and with a legal fiction for which the status belli with the Devil himself was vouched out of the Holy Writ. That these documents, though servants in the case, nevertheless possess an independent and respectable past and, if considered in relation to others like them, may furnish a bulk of probative matter directly material to an understanding of the medieval system foisted upon the colonists is something that has been overlooked by investigators into Stuart imperial policy. T h e scholarship of Sir Edward Coke, for all its faults and conceits, does not deserve such disesteem. For what our tentative reconstruction of the law and practices of the medieval empire is worth, we are glad to confess that we took counsel of his testimonies; they led us into the problem and carried us no small distance. T o the clairvoyant words, paraphrased from Chaucer, that Coke wrote into the report "out of the old fields must come the new corn" we gratefully add the proper concluding couplet: " A n d out of olde bokes, in good feith, Cometh al this newe science that men lere."

APPEALS TO THE PRIVY COUNCIL FROM THE AMERICAN PLANTATIONS

I THE RISE OF THE APPEAL JURISDICTION IT IS ONE of the paradoxes of history that the body which at one juncture in the evolution of the common law most direly threatened it, should by a succession of events have become a chief instrument in cultivating acceptance of that law in the remote corners of the earth. Under the Tudors and the early Stuart kings the Privy Council and its appanages had been fashioned by sagacious statesmen into an engine of law enforcement, with a hybrid jurisprudence of its own, that cut into the ancient ways of civil litigation and criminal prosecution, with little tenderness for the safeguards which Englishmen had come to look upon as their right. T h e arbitrary and headstrong course of Charles I and a cumulation of grievances and exasperations led to a sudden undoing of this work of generations in July, 1641, at the hands of the Long Parliament. 1 Shorn of judicial power almost to the very derma, the Council, nevertheless, retained the barely obvious follicles of an authority which a gradual awareness of the new world and the problems of its government were to quicken into growth. This book is concerned with the first phase of the revival—the development of the Council's appellate jurisdiction during the late seventeenth century and in the eighteenth century up to the Peace of Paris (1783)—a jurisdiction which influenced profoundly the planting of the common law in the United States. N o less significant was the eventual effect upon the British Empire itself, for it was upon the activities and experiences of this period that the statutory Judicial Committee of the Privy Council was founded. These things all lay unguessed in the inscrutable future when the statute 16 Charles I, c. io, was enacted, bringing to an end an epoch in English constitutional history and, as the legislators no doubt believed, terminating further judicial potency of the Council. T h e act is a landmark in English law, and the American colonists later never quite abandoned the notion that it should serve equally to mark the limits of intrusion upon their own jurisdiction. Since so much that was done in respect of the plantations stems from this act, our inquiry quite properly must begin with an examination of the statutory language. Section 5 of the statute provided that 1

16 Charles I, c. 10.

4

RISE OF JURISDICTION

neither his Majesty, nor his Privy Council, have or ought to have any jurisdiction, power or authority, by English bill, petition, articles, libel, or any other arbitrary way whatsoever, to examine or draw into question, determine or dispose of the lands, tenements, hereditaments, goods or chattels of any of the subjects of this Kingdom; but that the same ought to be tried and determined in the ordinary courts of justice, and by the ordinary course of the law. This language, it will be observed, was very sweeping, and as to the immediate grievances which called the statute into being was an effective panacea. H o w in the face of such legislation authority remained for the promotion of a widespread exercise of appellate jurisdiction by the Privy Council over the courts of the Channel Islands, the several American colonies, the Isle of Man, East India, Gibraltar, and Minorca is a question which needs some answering. The mere fact that these areas of jurisdiction were almost all dominions of the crown outside the realm does not afford a sufficiently comprehensive explanation,2 for despite the terms of the act the King in Council retained vestigial domestic appellate jurisdiction in two instances: appeals from the Lord Chancellors of England and of Ireland sitting in lunacy 3 and appeals from the Court of the Warden of the Stannaries of Cornwall, in the absence of a Prince of Wales. 4 The answer is rather to be found in the phrase "by the ordinary course of the law," the intendment of which is illumined by the preamble of the statute. This preamble, through the device of reciting the purport of various ancient enactments from Magna Carta down into the reign of Henry VIII, sets up a sort of indefeasible hereditament of due process. The restoration of this inheritance is to be effected by the annihilation of all extraordinary jurisdiction and by the rehabilitation of the common law courts in what the Parliament conceives their historic role to have been. We are not concerned with the legislature's perversion of history, but solely with the undeniable fact that the "ordinary course of the law" could be fixed only by a reference to this history. At the time when the statute was passed, and by the very tests chosen to justify it, the "ordinary course of the law" for two of the dominions of the crown, Jersey and Guernsey, embraced an appeal from the courts of these islands to King in Council. This appellate authority, then, was the small goods rescued from the conflagration of the revolution, and thenceforward, as we shall see,5 2 But cf. ι Blackstone, Commentaries on the Laws of England, 2 3 1 ; 2 Anson, Law and Custom of the Constitution, Part II (4th ed.,

1935)) 3 2 1 ; Bentwich, Practice of the Privy Council in Judicial Matters ( 1 9 1 2 ) , 5. The term "dominion" is used throughout in the eighteenth-century sense, not in the modern sense of a "dominion," as opposed to a "crown colony."

3

3 Peere Williams, m ; Macqueen, A Practical Treatise on the Appellate Jurisdiction of the House of Lords and Privy Council ( 1 8 4 2 ) , 7 5 2 - 5 3 ; 1 Blackstone, Commentaries, 231. 1 Rolle, Abridgment, 745; Rawlinson MS, C 4 4 1 / 6 2 ; "Treatise on Error," Singleton MS, 44/6. Cf. 3 Blackstone, Commentaries, 80. 5 See infra, pp. 202-8, 4 1 8 - 2 2 .

4

RISE O F J U R I S D I C T I O N

5

the Council's judicial authority, except for some medieval survivals of original jurisdiction, was confined to appeals. In 1640 Jersey and Guernsey were the only dominions of the crown that had attained judicial maturity and that could lay claim to immediate judicial control by the crown sufficiently ancient and well established to be considered "ordinary" even in the critical eyes of the L o n g Parliament. There is, regrettably, no sign that this body, intent upon the maladies of the realm itself, pondered the desirability of perpetuating this fragment of royal authority. T h e effect of 16 Charles I, c. 10, therefore, can be settled only as a problem of interpretation of statutory language; and this was precisely how lawyers came to deal with it when the basis for conciliar power in developing a colonial empire made unavoidable a careful weighing of this act. Regarded in terms of constitutional law, the problem presented was the explanation of the Council's status under the act with reference to what had been done in the past and what it had continued to do. W e ourselves have no doubts concerning the force of the Channel Islands precedents. Some writers agree with this view, 6 but others have denied that these islands constituted jurisdictional precedents for the later establishment of appeals from the other dominions to the K i n g in Council. 7 Legal opinion of the Restoration entertained no misgivings, for in 1681 Attorney General Sawyer relied solely upon Jersey and Guernsey precedents in deciding whether or not conciliar appeals lay from the Massachusetts Bay colony. 8 But the best and most convincing proof of the creative force of the Channel Islands jurisdiction is, as we shall presently see, the imprint left by these appeals upon the general structure of conciliar appellate procedure.

THE MEDIEVAL STATUS OF THE CHANNEL ISLANDS

T o understand the historical basis for the justification as "ordinary" of the appellate jurisdiction exercised by the K i n g in Council over Channel Islands 6 T . Pownall, The Administration of the Colonies (2d ed., 1765), 82-83; ι Bürge, Commentaries on Colonial and Foreign Laws (1838), xlvi-xlvii; Pike, Constitutional History of the House of Lords (1894), 308; Bentwich, op. cit., 9 1 ; G . A . Washburne, Imperial Control of the Administration of Justice in the Thirteen American Colonies, 1684-1776 (1923), 54-56; cf. ι Holdsworth, History of English Law ( 1 9 2 7 ) , 520; W . F. Finlason, The History, Constitution, and Character of the Judicial Committee of the Privy Council

(1878), 15; Maitland, Constitutional England ( 1 9 2 6 ) , 337.

History of

7 Macqueen, op. cit., 682-86; H. D. Hazeltine, Appeals from Colonial Courts to the King in Council, with Special Reference to Rhode Island, Annual Rep. A m . Hist. Asso. (1894), 304-6; A . B. Keith, Constitutional History of the First British Empire (1930), 305. Compare the view that "the King, as the fountain of justice, has a general residuary jurisdiction" (Phillips, Principles of English Law and the Constitution [ 1 9 3 9 ] , 462). 8 3 Edward Randolph (Prince Soc. Pub., 1899; ed. R. N . Toppan), 100-101.

6

RISE OF JURISDICTION

courts, it is necessary to turn back to the remote past. At the time of the Norman conquest of England the Channel Islands formed part of the duchy of Normandy. 9 After the Conquest and prior to the loss of Normandy by King John, in 1204, it appears that the islands constituted an integral part of the Norman itinerant judicial system, 10 although in addition a local court or courts were held in the King's name. 1 1 With the loss of the Norman mainland, the locus for insular supervision was of necessity shifted to England, although this removal did not serve as a de jure or de facto incorporation of the islands into the Kingdom of England. In terms of feudal relations the King retained his status of duke as to the islanders. 12 In terms of judicial practice there was no serious cleavage with the past, the royal administrator, the warden, being directed to hold assizes according to insular laws and custom. 13 Royal courts, distinct from the assizes and restricted in jurisdiction, were seemingly kept by the warden or his lieutenants in the early part of the thirteenth century. 14 Toward the close of this century these royal courts of Jersey and Guernsey assumed a form that was to be permanent, being held by a bailiff and twelve jurats. 15 In summary, it can be said of the thirteenth century that, as a result of various strategic and political considerations, a policy was adopted in insular administration which tended to the preservation of local laws, institutions, and customs. In the last quarter of the century the assizes underwent certain transformations preliminary to conversion into general eyres. 16 Simultaneously an additional manifestation of the royal judicial power appeared in the issuance of commissions to hear complaints against administrators. 17 Triennial assizes were held until 1299, when they were superseded by general eyres, which were held in 1299, 1304, 1309, 1323, and 1331· 1 8 After 1331 the eyres ceased to visit the islands. 19 The large degree of judicial autonomy then and later attained in the Chan9 Coke, Fourth Institute, 286; Hale, History of the Common Law (4th ed., 1 7 7 9 ) , 1 9 1 ; First Report of the Commissioners Appointed to Inquire into the State of the Criminal Law in the Channel Islands, Jersey (1847), in 8 State Trials (n.s.) Appen. C, 1 1 2 7 . 10 J. H. Le Patourel, The Medieval Administration of the Channel Islands, 1199-1399 ( 1 9 3 7 ) , 26-28, 37, 42; The Extentes of Guernsey, 1248 and 1331 (Soc. Guern. Pub., 1934; ed. H. de Sausmarez), 27. 11 Cartulaire des Iles Normandes (Soc. Jer. Pub., 1924), 2 2 0 - 2 1 ; T. W. M. de Guérin, Notes on the Early Constitutional History of the C.I., 9 Soc. Jer. Bull., 2 7 0 - 7 1 ; G. F. B. de Gruchy, The Entries Relating to Jersey in the Great Rolls of the Exchequer of Normandy of

A.D. 1180, ibid., 2 0 - 2 1 ; C. H. Haskins, Norman Institutions ( 1 9 1 8 ) , 185. 12 Le Patourel, op. cit., 29, 37. 13 Ibid., 4 1 - 4 2 . 14 Ibid., 42-44. 15 Ibid., 48-49, 5 0 - 5 1 ; 2 Dupont, Histoire du Cotentin et des Iles ( 1 8 7 3 ) , 56-58. For discussion of the various theories held on the origin of the jurats see Le Patourel, op. cit., 113-17. 16 Ibid., 52-53. 17 Ibid., 5 3 - 5 4 ; Havet, Les Cours Royales des Iles Normandes, 39 Bibliothèque de l'Ecole des Chartes (1878), 204-6. 18 The Extentes of Guernsey, 6; Havet, loc. cit., 7. 19 Le Patourel, op. cit., 64-65.

RISE OF JURISDICTION

7

nel Islands rests upon a trinity of privileges claimed and confirmed at various times. First, the privilege, with certain exceptions, of not being summoned out of the islands in judicial proceedings.20 Secondly, the participation of the jurats with the itinerant justices in judicial proceedings.21 Thirdly, the privilege of judgment in insular causes according to the laws and customs of the respective islands.22 The first privilege does not appear to have been scrupulously observed, for cases not within the exceptions are found adjourned coram rege from the 20 The provision in the alleged charter of John reads: "Ipsi duodecim, in quâlibet insull, in absentiî justicia riorum, et unì cum justkiariis, cùm ad partes illas venerint, debent judicare de omnibus casibus in dictâ InsuM, qualltercunque emergentibus, exceptis casibus nimis arduis, et si quis legitimé convictus fuerit ì fidelità te domini Regis tanquam proditor recessisse, vel monus injecisse violentas in ministros Domini Regis, modo debito officium exercendo" (8 State Triait [n¿.], 310). For similar statements of privilege see Rolls of the Atiizet held in the Channel Islands in the Second Year of the Reign of King Edward I f , A.D. ¡jog (Soc. Jer. Pub., 1903), 31 (hereafter cited Rolls of the Assizes, /jog); Havet, loc. cit., 247-48. But the 1441 "Précepte d'Assise" for Guernsey lists three categories of cases in which punishment was reserved to the King, although cognizance could be had locally, i.e., treason, false coining, and violence upon the person of the bailiff or jurats in exercise of office (.Externes of Guernsey, 132-33). The alleged charter of John also contained a provision "quod nullum placitum infri quamlibet dictarum insularam coram quibuscunque justiciariis inceptum, debet extri dictum insulam adjornari, sed ibidem omninò terminari" (Falle, Account of the Island of fersey [1734], 3 3 1 ; cf. Havet, loc. cit., 248). This provision is stated in the aforesaid "Précepte d'Assise" as follows: "les ditz habitanz et demouranz en la dicte ysle hommes liges de nostre dit Seygnour de Roy ne sunt tenus et auxi ne doivent estre constrains ou compellez par aulcun brief de Roy ne aultrement pour cause quiconquez de yssir ne aller hors de la dicte ysle si nest par assent des partiez," Extentes of Guernsey, 134. In the same vein, because the King granted the liberties formerly enjoyed "sans yssir ne aller hors de la dicte ysle par [appellation ne aultrement en maniere quelconque excepte pour prendre et avoir lours gages de nostre dit Seygnour] le Roy comme dessus est dit pour cause

que ancienement les appellations [et applegements en la dicte duche de Normandie estoient et soulloient estre determines entièrement a leschiquer a Rouan] sy ne voulut point soufrir nostre dit Seygnour le Roy [duc de Normandie, comme dessus est dit, nostre Souverain et liege Seygnour que james ses diets hommes subjects et lieges fussent et deussent estre constraintz] et compellez par aulcun breff de Roy, ne aultrement, de yssir ne aller hors de la dicte ysle Mes accorda et conceda iceluy noble Roy que tous les cas dessus ditz fussent et deussent estre cougneus mis affin et determines en la dicte ysle, par devant les Justices de nostre dit Souverain Seygnour le Roy yllenquez transmis [et mandes avec les douze Jures] de la dicte ysle, qui cognoissent et say vent les accoustumancez et anciens usages de la dicte ysle" {ibid., 13$; cf. ibid., 150). See also the broad 1305 royal statement of the privilege, Doc. rei. aux Isles de la Manche tirés des rôles des Lettres Closes conservés au 'Public Record Office' à Londres, 1205-1327, 9 Soc. Jer. Pub., Part I (ed. W. Nicolle; 1893), 78-79. This privilege may also have aided the crown in preventing recourse to the ecclesiastical authorities at Cou tances; see ibid., 82-83. 21 See the provision in the putative charter of John, supra, n. 20; Rolls of the Assizes, ijog, 29-30, 7 1 ; Extentes of Guernsey, 73; Havet, loc. cit., 247; the 1441 Guernsey Précepte d'Assise, Extentes of Guernsey, 133; 'Ancient Petitions of the Chancery and the Exchequer' ayant trait aux lies de la Manche conservées au 'Public Record Office' i Londres (Soc. Jer. Pub., 1902), 23 ( # 1 2 , 9 9 9 ) (hereafter cited Ancient Petitions). 22 Rolls of the Assizes, ijog, 29, 69. Judicial commissions into the islands were usually ordered to judge "secundum legem et consuetudinem insularum illarum," or some equivalent phrase; see Havet, loc. cit., 205, 207, 208, 212, 229, 239.

8

RISE OF J U R I S D I C T I O N

eyres.28 Cases which were not so adjourned are also to be found on the coram rege rolls.24 In addition, petitions in judicial proceedings were presented to the Council in Parliament.2® Recourse to tribunals outside the islands was not compelled because of lack of insular appellate review. With certain exceptions, causes could be appealed from the local royal courts to the assizes.2® Also one group of itinerant justices might review the acts of a former set.27 It may be contended that the islanders wished to confine review to these last two methods, but there are several indications that they realized the existence of some appellate jurisdiction outside the islands. An undated Guernsey franchise admits this right without naming the body to whom the appeal should be made.28 Furthermore, the Norman precedents would seem to admit of an extra-insular appeal.29 The provisions of the alleged constitution of King John wherein the jurats were to aid in making the record would indicate that a case could at least be adjourned coram rege.30 The essence of this privilege would therefore appear to be that no court outside the islands should have original jurisdiction except in the specified cases. During the first half of the fourteenth century the litigant dissatisfied with insular justice frequently sought relief from the Council in Parliament.31 Direct petitionary approach to this body was diverted by the intervention of intermediate agencies in the form of receivers and auditors of petitions.32 Important evidence as to the handling of Channel Islands petitions is available for the 1305 Lenten Parliament. At this Parliament four persons were appointed to receive and sort the petitions.33 Following this process the documents were forwarded to four separate groups delegated to try petitions from England, Scotland, Gascony, and Ireland and the Channel Islands.34 The 23

Le Patourel, op. cit., 18, 1 1 2 ; cases are also found scattered through Rollt o) the Atsizet, '309. 24 Le Patourel, op. cit., 19. 25 See Rotuli Parliamentorum Anglic hactenus inediti (Camden Soc. Pub., ed. H. G. Richardson and G. Sayles, 1 9 3 5 ) , 46-54; 1 Rotuli Parliamentorum 159a; Macqueen, op. cit., 682-85. 26 The Extentes of Guernsey, 149; Rolls oj the Assizes, 130g, 207; Havet, loc. cit., 18. 27 Havet, loc. cit., 2 1 - 2 2 , 227; Ancient Petitions, 3 1 - 3 2 ( # 1 2 , 8 3 4 ) . Cf. 8 State Trials (n.s.), 1 1 7 6 . 28 Havet, loc. cit., 201. 29 See W. Berry, History of the Island of Guernsey ( 1 8 1 5 ) , 50. 30 See Falle, op. cit., 222; Havet, loc. cit., 248; Rolls of the Assizes, 130g, 3 0 - 3 1 . 31 See supra, n. 25; cf. Le Patourel, op. cit., III.

32 See Richardson and Sayles, The King's Ministers in Parliament, 1272-1377, 46 E H R 532; cf. Wilkinson, The Chancery under Edward III ( 1 9 2 9 ) , 48. For discussion of the origins of the petition as a procedural device, see Ehrlich, Proceedings against the Crown (1216-1377), 83 et seq. 33 Memoranda de Parliamento (ed. F. W. Maitland, 1 8 9 3 ) , 3. 34 Ibid., 3 - 4 . Only the "Isle de Gernesseye" is mentioned in the appointment, but Richardson and Sayles (loc. cit., 543) and Maitland (Mem. de Pari., lix) interpret the appointment as for "the Channel Islands." The triers in practice support this terminology. See Rot. Pari. Ang. hac. ined., 50, 5 1 , 54. Maitland calls the trier groups "committees" (Mem. de Pari., lviii, lx), but Mcltwaine prefers "a part of the council," since their action appears to have been final in all cases not transmitted to the whole Council

RISE OF JURISDICTION

9

last group consisted of five members, John of Berwick, Henry of Stanton, William Mortimer, Roger Beaufou, and William Dene. 35 When this group reachcd a decision as to the relief to be afforded a particular petitioner, such decision was endorsed upon the petition. The original endorsed petition was then filed in Chancery, where it might serve as a warrant for further proceedings.86 But in some cases the consideration of and the decision upon a petition were reserved for the King or the plenary Council.37 The final dispositions of these reserved petitions varied, but this is of no great importance for our purposes.38 The function of the auditors, or triers, was mainly directive or moving in nature. By force of their endorsements they were able to set in motion the administrative machinery which would ultimately afford relief if the petitionary allegations proved true.39 The common endorsement by the auditors was one authorizing the issuance of a writ. Certain endorsements which direct that record and process below be brought before the next Parliament indicate that acts of the itinerant justices were subject to review by petition to the Council in Parliament.40 In some cases the triers directed petitioners to go to Chancery and there procure writs to correct error.41 Auditors also ordered the rolls of itinerant justices searched and requisite information forwarded to the next Parliament.42 But caution should be exercised against regarding the Council in Parliament as a court of appeal.43 The evidence is meager as to the procedure following the return of writs when authorized. In one case the abbot of Mont St. Michel petitioned the February, 1305, Parliament for a remedy; the response directed the production of charters and other evidence of title before the Council in Parliament.44 At the September Parliament of 1305 the abbot appeared and petitioned to be or to the King {The High Court of Parliament and Us Supremacy [ 1 9 1 0 ] , 201; cf. Ehrlich, op. cit., ι ο ο - ι ο ι ) . Note the insular interpretation given the 1 3 0 ; appointments by I. Duncan (History of Guernsey [ 1 8 4 1 ] , 430) in an effort to stave off Parliamentary control. 35 On this personnel see Richardson and Sayles, in 46 EHR, 546; Maidand, Mem. de Pari., lix. Cf. the conclusions of Richardson and Sayles, 46 EHR, 550. 3e Maitland, Mem. de Pari., lxiii; Ehrlich, op. cit., 105. For the 1305 endorsements see Rot. Pari. Ang. hoc. ined., 47-54. 37 Maidand, Mem. de Pari., lxi; Ehrlich, op. cit., 106-7; Ancient Petitions, 53, 54. 88 Ehrlich, op. cit., 107-10. 38 Pollard, The Evolution of Parliament (1926), 39. "The value of parliament to the

petitioner consisted not in the revision or the reversal in parliament of decisions already given in the courts of common law, but in the function it fulfilled of 'moving' these courts." 40 See Rot. Pari. Ang. hac. ined., 48, 49, 51, 53 ( # 4 , 5, io, 1 5 ) ; Havet, loc. cit., 224-25. 41 Ancient Petitions, 23, 61-62; cf. Ehrlich, op. cit., 170; Palgrave, An Essay upon the Original Authority of the King's Council (1834), 1 1 7 . *2Rot. Pari. Ang. hac. ined., 52 ( # 1 3 ) ; Ancient Petitions, 16-17. 43 See Pollard, op. cit., 39-40, that "it does not appear correct to interpret the phrase 'high court' of parliament as meaning a supreme court of appeal. It acted more often as a court of first instance than as a court of error." ** ι Rot. Pari., 180b; Rot. Pari. Ang. hac. ined., 52.

RISE OF JURISDICTION

IO

heard concerning his rights; he then produced his evidence before certain members of the Council.45 It was ordered that an inquisition concerning the rights in the land be taken in Jersey and the report remitted to the King under seal.48 Finally, after an inquisition had been taken in the island, it was reversed for error by King's Bench.47 From King's Bench there seems to have been a petition coram rege which resulted in a reversal of the judgment of Scrope and his brethren of King's Bench.48 It is open to conjecture when the parliamentary petition ceased to be utilized by Channel Islanders to gain supervision of insular judiciaries. The islands are invariably mentioned in the appointments made of receivers and triers of parliamentary petitions during the fourteenth century and later.49 But these appointments degenerated into mere formalities without functional significance.50 The fourteenth century as a period of institutional segregation witnessed the emergence of Parliament and the Council as quasi-entities. As the function of Parliament assumed legislative complexion, matters raised by private petition tended to be diverted to the Council or to Chancery.51 But it should be noticed that Parliament continued to exercise a judicial function in the form of the error jurisdiction of the House of Lords. 52 During this same period the competency of King's Bcnch in Channel Islands causes was questioned,53 and in 1368 that court declined jurisdiction in a trespass action.54 Sir Edward Coke later asserted that it appeared by this judgment that the King's writ did not run into the islands.55 This principle that original writs did not run into dominions of the crown outside the realm was probably first enunciated in the case of Wales.56 The eyres had 45

ι Rot. Pari., 180b. ibid., 181 a. The commission is set out in Havet, op. cit., 222. For difficulties encountered in execution of the commission see ibid., 225. 47 Cartulaire des lies Normandes, 114. 48 Ibid., 123-24. 48 See the appointments scattered through the volumes of Rot. Pari. 50 Richardson and Sayles, The Parliaments of Edward III, 9 Bulletin of the Institute for Historical Research ( 1 9 3 1 - 3 2 ) , 3. 01 Pollard, op. cit., 1 3 0 - 3 1 ; Wilkinson, op. cit., 52-53; Baldwin, The King's Council in England during the Middle Ages ( 1 9 1 3 ) , 1 1 5 et seq.; Richardson and Sayles, 9 Bull. Inst. Hist. Research, 4; cf. Report of the Select Committee of the House of Lords on Appellate Jurisdiction 49

(1872)

52 53

X.

Baldwin, op. cit., 334-38. See Le Patourel, op. cit., 1 1 2 - 1 3 .

54 Ibid., 1 1 3 ; Havet, Série chronologique des gardiens et seigneurs des lies Normandes (1198-1461), 37 Bibliothèque de l'Ecole des Chartes (1876), 232-37. 65 Coke, Fourth Institute, 286-87; Prynne, Brief Animadversions (1669), 393-94. 58 The early cases are collected and discussed in A Discourse against the Jurisdiction of the King's Bench over Wales by Process of Latitat, ι Hargrave, Collection of Tracts relating to the Law of England (1787), 377; "Concerning Process Out of Courts at Westminster into Wales of Late Times, and How Anciently," Vaughan, 395; Goebel, review of Schuyler, Parliament and the British Empire, in 30 Col. L.R. 273; cf. Keilway 202; Jenkins 5; Calvin's Case (7 Coke Rep. 1, 20-21). See also Lord Mansfield in Rex v. Cowle (2 Burr. 834), and the cases on the running of prerogative writs outside the realm, Bourn's Case (Cro. Jac. 543,

R I S E OF JURISDICTION

n

ceased to visit the islands after 1331, and only a few royal commissions to hear and determine specific causes are to be found. 87 From this it appears that the judicial needs of the islanders were being satisfied by the local royal courts in Jersey and in Guernsey. These two courts were holding pleas of the crown previous to 1331—the distinction between pleas of the crown and other pleas having been obliterated.88 This obliteration received recognition by the terms of the judicial power inserted in commissions to the wardens.39 Judicial authority consequently became concentrated in the respective bailiffs and jurats, but in view of the institutional parturition taking place within the realm itself, at some point a decision must have been necessary to determine which body should exercise appellate supervision. But the rationale of the decision which gave the King in Council such jurisdiction is wrapped in obscurity. It may have been a Norman institutional survival that appeals were taken to the King in Council, really in his ducal capacity.80 It may have been the result of a recognition that the islands were outside the realm and that the King's writ did not run therein.61 It may have resulted from abeyance of the error jurisdiction of the House of Lords.62 As to the date of conciliar assumption of this jurisdiction, it has been asserted that the Council became hearers of appeals from the Channel Islands at the end of the fifteenth or the beginning of the sixteenth century.63 It has also been alleged that this Privy Council jurisdiction was usurped, that it originally belonged to the Council in Star Chamber.64 At any rate, in 1495 it was necessary to issue a conciliar order restricting appeals "au Roy et à ConPalmer 54); Anonymous (ι Ventris 357); Rex v. Overton (1 Sid. 386). 57 Le Patourel, op. cit., 66. 58 Ibid. '-"Ibid., 128. 80 See Externes of Guernsey, 147, 150; Le Patourel, op. cit., 29; cf. Macqueen, op. cit., 682-85. β1 By analogy to the King's Bench practice; see supra, p. 10. • 2 Macqueen, op. cit., 686; 2 Anson, op. cit., Part II, 3 2 1 ; Keith, op. cit., 305; cf. Palgrave, op. cit., m ; Plucknett, Concise History of the Common Law (3d ed., 1940), 185. The nadir of interpretation is attained by Beauchamp (Jurisprudence of the Privy Council [1891], 8-9). Generally on the decline of the error jurisdiction of the House of Lords see Hale, Jurisdiction of the House of Lords (1796), v-viii; Maitland, op. cit., 245-46; Petit-DutaiUis and Lefebure, Studies and Notes Supplementary to Stubb's Constitutional History III (1929), 442; Pickthorn, Early Tudor Government, Henry

VII (1934), 1 1 7 - 1 8 ; Beven, Appellate Jurisdiction of the House of Lords, 17 LQR 163-64. 48 Havet, op. cit., in 39 Bibliothèque de l'Ecole des Chartes, 53; Macqueen, op. cit., 686; cf. Percy, The Privy Council under the Tudors (1907), 7; Dicey, The Privy Council (1887), 90. M See Hudson, A Treatise of the Court of Stat Chamber, 2 Collectanea Jurídica (1792), 62. But this jurisdictional assertion is not borne out by the records. For Sur Chamber original jurisdiction over the Channel Islands see 1 Litt of Proceedings in the Court of Star Chamber Preserved in the Public Record Office, 1485-1558; 13 P.R.O. Lists and Indexes, 36, 53, 82, 85, 174, 184, 197, 262. On earlier seventeenthcentury objections to Star Chamber jurisdiction over the Channel Islands see All Souls College MS, 204/5. As to the distinction between the Star Chamber and the Privy Council under Henry VII see Schofield, A Study of the Court of Star Chamber (1900), 26-29.

RISE

12 seil."

85

OF

JURISDICTION

T h i s w o u l d a p p e a r t o s u b s t a n t i a t e c o n t e n t i o n s t h a t the c o n c i l i a r c l a i m

to sole a p p e l l a t e j u r i s d i c t i o n w a s n o t u n c o n t e s t e d , a n d p e r h a p s w a s of n o t t o o a n c i e n t o r i g i n . ® 6 A l t h o u g h d u r i n g t h e r e i g n of H e n r y V I I I m a n y

petitions

w e r e p r e s e n t e d to t h e K i n g c o n c e r n i n g t h e a d m i n i s t r a t i o n of J e r s e y j u s t i c e , 8 7 t h e a v a i l a b l e r e c o r d s f u r n i s h n o i n f o r m a t i o n as to a n e x i s t i n g a p p e l l a t e s y s t e m . APPELLATE JURISDICTION UNDER ELIZABETH It is o n l y w h e n the r e i g n o f E l i z a b e t h is r e a c h e d that e v i d e n c e is a v a i l a b l e as to a n e x i s t e n t a p p e l l a t e s y s t e m . Y e t e v e n d u r i n g this r e i g n it w a s n e c e s s a r y to assert t h e sole a p p e l l a t e j u r i s d i c t i o n o f t h e Q u e e n in C o u n c i l a n d t o p r o h i b i t appeals e l s e w h e r e . 8 8 B e f o r e e x a m i n i n g the appellate procedure, the character o f t h e E l i z a b e t h a n P r i v y C o u n c i l s h o u l d b e n o t i c e d in relation t o its c o m petence as a judicial body. M e m b e r s h i p w a s comparatively limited, b e t w e e n ten a n d t w e n t y .

89

E x c e p t f o r the L o r d

fluctuating

Chancellor and the

Lord

K e e p e r , p r o f e s s i o n a l j u r i s t s w e r e n o t u s u a l l y i n c l u d e d a m o n g the m e m b e r s . 7 0 Meetings w h i c h varied widely 85

in a t t e n d a n c e w e r e h e l d in v a r i o u s l o c a l i t i e s

The fersey Prison Board Case, Appen. II, 191. ββ For the conciliar background of this assertion of jurisdiction see Plucknett, The Place of the Council in the Fifteenth Century, ι Trans. Royal Hist. Soc. (4th ser.), 1 5 7 et seq. βτ See ι APC, Dom., 554. There is evidence that Chancery was exercising jurisdiction over insular judicial matters at this period; see 6 Soc. Jer. Bull. 252, 265. 68 The inhabitants of Jersey and Guernsey in 1 5 6 5 complained that contrary to ancient charters and liberties they were called to answer in England by process awarded out of various English courts of record and that "after judgementes gyven in the same Isles, appeales [were] made hither unto the said courtes to the gretc troble and vexacion of the said inhabitantes." The Solicitor General was required to take the opinions of the two lord chief justices, and Governor Paulet of Jersey was asked his opinion. Upon return of these opinions it was ordered that all suits begun or to be commenced in the islands where one or both parties were insular subjects should be heard and decided there. It was further resolved, "that no appeales should be made from any sentence in judgement geven in the same Isles hither but only acordinge to the wordes of their charters, A u Roy et son Counssill, which agreeth, as Sir Hughe Powlett allegeth, with such order and forme as hath here before

ben acustomyd." Chancery and the Court of Requests were particularly stigmatized for issuance of process against the islanders (7 APC, Dom., 2 1 1 , 223; cf. Dasent, ibid.. Preface, xxix). In 1578 the question again arose of possible infringement of island privileges if Governor Leighton should answer the accusation of one Bourdon in any court of the realm. Doctors Dale and Aubrey asked whether "it should be first proceeded in in that place, and by appeale from thence be brought before their Lordships and none other" ( 1 0 APC, Dom., 428). The Council in the same year also relieved some Guernsey subjects from suit in Ipswich, declaring that the controversy was triable in Guernsey "and from thence by appeale returnable onlie to the Councill T a b l e " (ibid., 436). Compare the provisions as to appellate jurisdiction in the 1560 royal charter to Guernsey (Berry, op. cit., 3 2 6 - 2 7 ) and the 1 5 6 2 Jersey charter (8 State Trials [n.s.] 1 1 0 0 ) . e9 See I Turner, The Privy Council of England ( 1 9 2 7 ) , 3 3 - 3 4 ; Black, The Reign of Elizabeth ( 1 9 3 6 ) , 169. 70

See the indices of conciliar attendance in the Acts of the Privy Council, Domestic. The first judge sworn a member of the Council was Chief Justice Popham in May, 1 5 9 9 (29 APC, Dom., 7 3 8 ) ; see Pollard, Council, Star Chamber, and Privy Council under the Tudors, 38 E H R , 60. On the composition of the Council, cf. 8 APC, Dom., xxvii-xxviii.

RISE OF and o n frequent occasions.

71

JURISDICTION

13

Action taken in the course of a meeting m i g h t

extend into virtually any field of domestic administration. 7 2 Determinations arrived at by the Council were given force by means of conciliar orders or letters. Such a body can scarcely be regarded as well equipped for handling extensive judicial matters. D u r i n g the earlier part of the reign of Elizabeth t w o orders were issued by the Council defining its appellate jurisdiction over Jersey and over G u e r n s e y . 7 3 T h e order for the former island was issued on M a y 1 3 , 1 5 7 2 , at the instigation of the jurats. 7 4 It provided that no appeal be allowed from any sentence or judgment in any matter or cause not exceeding the value of £7

sterling; that

no appeal be admitted before definitive sentence or other judgment having the force of a definitive sentence was given; that every appeal should be prosecuted within three months after sentence or judgment, except where cause w a s shown and allowed of by the Council; that no appeal be received without a copy as well of the sentence or judgment as also of the whole process under insular seal; that such copies be furnished to appellants by the Royal Court within eight days after request. 7 8 O n October 9, 1580, a more extensive Order in Council regulating G u e r n sey appeals was issued. 7 6 T h i s order directed allowance to the inhabitants of appeals from any judicial decree, sentence, or judgment of the Royal C o u r t 71 Taking three random periods we find attendance in 1581 (n.s.) ranging from two to thirteen councilors, with most meetings having six to nine present. For 1591 (n.s.) the extremes were three and eleven, with the same frequency range. For 1601 (n.s.) the spread was from four to twelve. In the first of these random periods over 170 conciliar meetings are entered in the Council books, for the second over 150, for the third over 75. Council register entries are headed inter alia Whitehall, Richmond, Greenwich, Oadands, Nonsuch, Westminster, Hampton Court, Windsor, St. James, the Star Chamber. 72 The extensive jurisdiction of the Council is best described in the prefaces by J. R. Dasent to the Acts of the Privy Council, Domestic for the period; cf. Black, op. cit., 171-77; Beard, The Office of the Justice of the Peace in England (1904), c. v. 73 It is difficult to explain why these jurisdictional limitations should have been desired at this time. There is no evidence of a great flood of appeals from the island courts, despite the insular origins of the clamor for jurisdictional limitations. To regard the limitations as self-

motivated and self-imposed overlooks the traditional policy of the Council to afford relief where necessary and the fact that excluded appellants could apply to the Council for relief in another guise. 74 The agitation for some appellate regulation was sponsored by Helier de Carteret, acting in behalf of the jurats of Jersey. His petitions were referred to be considered by the Attorney General, with the Judge of the Admiralty or some other person learned in the civil laws; upon return of opinions from the Attorney General and Dr. Lewis, Judge of the Admiralty, the orders were issued (8 APC, Dom., 75; cf. Dasent, ibid., viii, xii-xiii). 75 8 APC, Dom., 76. For the meaning of the phrase "diffinitive sentence or other judgment having the force and effect of a sentence diffinitive" see J. Poingdestre, Les Lois et coutumes de l'ile de Jersey (1928), 222 et seq. 76 The regulations are not set out in the Council register. A notation of their issuance "according to a mynute remayning in the Councell Chest" is mentioned, September 6, 1580 (12 APC, Dom., 193).

14

RISE OF JURISDICTION

to the Queen and her Privy Council if made within fifteen days after notice of judgment. But exceptions to this general direction were made in the case of causes criminal or corrective, of orders in the Court of Chief Pleas, of cries of haro, of matters movable not exceeding ¿ 1 0 sterling, of causes where no definitive decree, sentence, or judgment had been given. Appellants were effectually to prosecute and end their appeals within a year and a day, if not hindered by any lawful impediment, and to give security to prosecute the appeal and to pay adversarial costs and charges in case of affirmance, according to ancient island custom. The appellant was required to procure an instrument under seal containing all the acts and proceedings in the cause appealed. T h e Royal Court was to enter in its records all pleadings and evidence submitted in each cause, and copies thereof were to be afforded appellants upon payment of the usual fees. 77 The Jersey regulation of 1572 was supplemented toward the latter part of Elizabeth's reign by the ordinances of two royal commissioners, Pine and Napper, dispatched to Jersey. 78 In their ordinances of 1591 it was declared that the bailiff and the jurats ought to have the final determination of "all matters whatsoever which concern criminal cases, offenses, or misdemeanors." Also, that no appeal or other form of relief, except for review by jurats, should be lawful in causes under the value of sterling. In addition, it was related that there had been many appeals in cases in which no definitive sentence had been given, in cases which were well judged and wrongly appealed, in criminal causes, and in other causes in which no appeal lay. It was therefore ordered that in such cases, in which any request was made to the Council, petitioners should forfeit to the crown £10 sterling. This sanction was also applicable to those who prosecuted causes in Chancery, in the Star Chamber, or in any other court of England except before the Council. 79 With this description of the appellate body and its jurisdiction before us, it remains to deal with its procedure in handling appeals. Having taken his appeal in the court below, 80 the appellant utilized the usual procedural device 77

Ijindsdowne MS, 155/429, printed in Safford and Wheeler, Practice of the Privy Council in Judicial Matters ( 1 9 0 1 ) , 247-48. As to clameur de haro see ι Let Manuscrits de Philippe le Geyt, équyer, lieutenant-bailli de l'Ile de Jersey, sur la Constitution, les Lois, et les Usages de cette lie (1846), 294-96; Le Quesne, Constitutional History of Jersey (1856), 38-39; Le Cras, The Laws, Customs, and Privileges, and Their Administration, in the Island of Jersey ( 1 8 3 9 ) , 125; Warburton, Treatise on the History, Laws and Customs of the island of Guernsey ( 1 8 2 2 ) , 1 0 0 - 1 0 1 .

7S

On the issuance of this commission see 20 APC, Dom., 244, 2 7 5 - 8 1 , 288; cf. Dasent. ibid., xxx: 4 Le Geyt, op. cit., 237 et seq. 79 Case of Respondent in Renouf v. Attorney General for Jersey, Appen. I, 28. The validity of these ordinances has been challenged (Le Quesne, op. cit., 2 1 3 - 1 4 ) , but in Renouf v. Attorney General for Jersey, [ 1 9 3 6 ] A.C. 44s. 464-65, the Judicial Committee felt constrained to regard the ordinances as "part of the law of Jersey." 80 By the 1580 regulation for Guernsey, appeals were to be made at the time of sentence

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15

in Council proceedings, the petition.81 However, it became customary to precede the actual presentation of the petition with an entry of the appeal in the register of Council causes.82 This served as evidence of the prosecution of the appeal within the time limited either by conciliar regulation, island custom, or bond conditioned upon such prosecution.83 There is no evidence at this time of the later practice that upon entry of an appeal a summons automatically issued for the appearance of the respondent before the Council.84 But the Council did utilize ad hoc methods to cause respondents to appear.86 It was or within fifteen days after notice thereof (supra, pp. 1 3 - 1 4 ) . No. such regulation is contained in the 1572 Jersey regulations (supra, p. 1 3 ) , but there is some later evidence that the Guernsey order was regarded as extending the ten-day period of the civil law to fifteen days in Jersey also; see Poingdestre, op. cit., 233. The said Guernsey regulations also provided that appellants give security to prosecute and to answer costs in case of affirmance, according to ancient island customs (supra, p. 14). The earlier Jersey regulations contained no such provision (supra, p. 13). 81 We have seen no copies of contemporary petitions of appeal. From oblique references in the Council registers and from later practice it is not illogical to assume that such petitions contained a recital of the proceedings below, a statement of an appeal taken therefrom, and a prayer that the appeal be heard. 82 The first instance of such entry appears on January 20, 1587/8, when John Carteret "resorted to the Clarke of the Counsel! and desired his said appeale might be recorded, to thend it might appeare the same was by him begönne to be prosecuted before their Lordships within the tyme prescribed, which was for his indemnitie in that behalf accordingly entered into the Register of Counsell" (15 APC, Dom., 335). For other instances see 17 ibid., 320; 23 ibid., 364-65; 24 ibid., 28; 25 ibid., 14, 1 3 1 ; 31 ibid., 175, 276; 32 ibid., 411. It was not necessary to await a Council meeting to enter an appeal; entry could be made with the clerks who were in regular attendance at the Council Chamber; see 10 ibid., xxix; 11 ibid., vii; 12 ibid., vii. 83 By the 1572 Order in Council Jersey appeals were to "be prosecuted" within three months after judgment given (supra, p. 13). "Prosecuted" as employed here merely meant the entering of the appeal with the appellate body (Poingdestre, op. cit., 233). As we have seen there was no comparable conciliar regulation

for Guernsey (supra, pp. 1 3 - 1 4 ) , although it has been assumed that the 1572 regulation affected Guernsey (Poingdestre, op. cit., 233). But island custom might still play a procedural part, for in Guille v. Herrod (23 APC, Dom.. 364) from Jersey, it was stated that the appeal should have been entered by island custom within four months after it was granted. This same appeal affords an example of conciliar extension of the time limited to prosecute an appeal for "juste cause of lett or impediment," viz., plague (ibid). The Jersey 157a order required as a condition of appeal a copy of the sentence and the whole process under seal (supra, p. 13). The 1580 Guernsey regulations required readiness to produce a copy under seal of all the acts and proceedings in the cause (supra, p. 14). 84 During the latter part of the seventeenth century and in the eighteenth century the summons was usually copied into the Privy Council register immediately following the entry of the appeal. 86 Letters might be dispatched by the Privy Council to island officials to send over respondents to answer an appeal (Rowse v. Gower, 19 APC, Dom., 322; 21 ibid., 298). Such respondent might have his appearance entered in the Privy Council register (Regina v. Beauvoir, 21 ibid., 54). Upon petition of appellant the Privy Council might order the bailiff and jurats to take bonds of the respondent to appear personally before the Council by a specified date. In Gosselin v. Blundell, this was certified by the Solicitor General to be "according to ordinarie course" (29 ibid., 570). See also Drake v. Macham (26 APC, Dom., 350) where upon appellant giving security in England to prosecute the appeal and pay costs to respondents if wrongly appealed, the Royal Court was ordered to take bonds of the respondents to make their appearance by the date appellant was bound to prosecute the appeal.

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also usual upon entry of an appeal to enjoin the appellant to prosecute his appeal according to law and custom (or some equivalent phrase) a n d / o r to give his attendance until the appeal was heard and he was dismissed from such attendance. 86 W h e n the actual petition had been presented to the Privy Council, various methods were utilized to examine the appeal. Variations were possible in the body or bodies that heard or examined the appeal or in their composition. If the appeal should be referred to conciliar legal advisers or if insular commissioners were employed, diversities in the terms and the scope of the reference or commission were possible. T h e simplest situation procedurally would be conciliar disposition of an appeal without reference to an ancillary body. H o w e v e r , there are no cases at this period in which the Council reversed or affirmed a judgment below without a previous reference to legal advisers. Appeals are to be found where the Council in the first instance ordered rehearings below. 8 7 But it is doubtful whether these orders amounted to a reversal plus an order for a rehearing below. 8 8 T h e y are rather in the nature of a jurisdictional transference of hearings from the Privy Council to island commissioners. In addition, although the islanders maintained that Privy Council jurisdiction should be confined to causes coming before that body on appeal, 8 9 it is difficult to determine when these rehearing orders issued upon appeals proper and when upon petitions of complaint. 9 0 86

Gallie v. de la Rocque (25 /IPC, Dom., 1 3 1 ) ; Macham v. Carey (30 ibid., 74); Anley v. Stocall (31 ibid., 276). 87 In Godfrey v. Messervy appellant sought insular re-examination by some impartial persons nominated by the Council Board. Therefore, the governor, three jurats and two other inhabitants, or any three thereof, were directed to call the parties before them, and upon examination of proofs and the former proceedings in the cause to make an order for appellant's relief (29 ibid., 500). To the same effect see Sare v. Lempriere (29 ibid., 584); Le Porke v. Mountes (30 ibid., 642) ; cf. Trachy v. Lempriere, where appellant desired "that the matter (as is usual in like cases) may be referred to a re-examynasion." But the Council consulted learned counsel before ordering such examination (31 ibid., 39). 88 The conciliar letters ordering rehearings made no mention of reversal or avoiding of former proceedings. Such rehearings might be held before bodies other than the courts appealed from. See Godfrey v. Messervy (supra, n. 87); Sare v. Lempriere (supra, n. 87); Le

Porke v. Mountes (supra, n. 87). The rehearing referees might be directed to consider the former proceedings in the cause. See Godfrey v. Messervy (supra, n. 87). 89 In Guillam v. Le Court the Council had already issued an order for an insular rehearing when "testemoniall under the Seale of the Isle of Jersey" was produced that all causes concerning inheritance should be first heard by bailiff and jurats and not brought before the Council by appeal until sentence was given. The Board thereupon revoked the former letters and referred the matter to the ordinary course of island laws (32 ibid., 194). In appointing mixed Jersey and Guernsey commissioners to hear a complaint from Jersey, the Council stated that such appointment was not to constitute a precedent, that "the controversies arrising within the Isle shold onlie be tried by thinhabitauntes there and where their appeale is lawfullie admitted" ( 1 2 ibid., 18889). 90 In several petitions of complaint before the Council there was a complained of sentence below, but there is nothing to indicate a regu-

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I n any event, the instrument frequently used by the Council Board for rehearings w a s the insular commission. T h e s e ad hoc commissions in private litigation are not to be confused w i t h the sweeping commissions used by the C o u n c i l as instruments of administrative and judicial control. 9 1 T h e provisions contained in conciliar letters authorizing action by commissioners varied f r o m case to case. C o m m o n l y inserted were directions that the parties be called before the commissioners, 9 2 and that evidence produced by the parties be considered by the commissioners. 9 3 In some cases the former proceedings in the cause were ordered to be considered. 9 4 Provisions as to the finality of the c o m mission proceedings varied, 9 5 and the personnel of the insular commissions lar appeal therefrom. One de Soulement complained that by the devices of his adversary and the negligence of petitioner's procurar default had been made below. Therefore, it was prayed "to have revision and examinasion of the said cause and sentence, being a thing usuali to be done among you uppon our like directions as meet and appertayning to justyce." The Royal Court was thereupon directed to proceed to a new hearing and examination of the cause and to determine the cause with better knowledge on both sides (18 APC, Dom., 39). Upon allegations of one Le Hagais that a lentence contrary to justice was obtained by some sinister information or otherwise, the Royal Court was ordered to reexamine the cause and hear further proofs on both sides (19 ibid., 140). See the action on the petition of one Lawrence to the same effect (19 ibid., 140). Upon allegations of improper sdversary alliance with the bailiff by one Goalement, a cause was ordered reexamined (19 ibid., 139). These are editorially termed ippeals by Dasent. But in Le Febure v. Harmon (28 ibid., 107) a petition was presented complaining that a sentence was obtained by surprise when petitioner was unprovided with proofs. It was ordered that "because the tyme of appeale ys expired, these shilbe therefore to require you to take present order that the cause of the poore suppyaunts maie be re-examyned with the proofes on both sides, and thereuppon to take soche order as in right and equity apperteineth." Bat in the case of the complaints of Le Hagais (supra, n. 90) and of Lawrence (supra, a. 90) rehearings were seemingly conditional upon substantiation of allegations made before the Council. 91 In 1579 Dr. Hammond, Thomas Flemminge, and others were appointed commissioners tor Guernsey to investigate grievances,

including maladministration of justice ( 1 1 APC, Dom., 200). The inhabitants had complained "for wronges don unto them by the said Bailiffe and Jurâtes in cases of judgment and appeales uppon suites brought before them for tide of lande and inheritaunce" ( 1 1 ibid., 335-36). The provision as to appeals inserted in the 1691 commission to Pine and Napper for Jersey was as follows: "if you find any appeales or other causes of variance, wherewith the Lordes of her Majesties Privye Councell should be importuned, to call the parties before you, by order of this Commission, and to examine the matters in controversie and all their witnesses lawfully produced, on both sides, and to make some good end for the compounding the differences according to equi tie if you may; otherwise to signify to their Lordshipps what you find, together with the order of your proceeding in that behalf" (4 Le Geyt, op. cit., 263). For the source of this clause see 20 APC, Dom., 276-77; for execution thereof by the commissioners see 4 Le Geyt, op. cit., 263-67. 92 In re Goalement (19 APC, Dom., 139); Payne v. Constant (27 ibid., 338); Dumaresq v. Gillom (27 ibid., 356); Godfrey v. Messervy (29 ibid., 500); Le Porke v. Mountes (30 ibid., 642). 83 Le Hagais v. Cabot (19 ibid., 140); Rowse v. Labey (27 ibid., 54); Godfrey v. Messervy (supra, n. 92); Sare v. Lempriere (29 ibid., 584); Le Porke v. Mountes (supra, n. 92). 04 Godfrey v. Messervy (supra, n. 92) ; Sare v. Lempriere (supra, n. 93); Nicolle v. Le Cornu (32 ibid., 433). 95 In some cases no provision was made for further consideration by the Council, and the judgment of the commissioners was final (de Soulement v. de Soulement, 18 APC, Dom., 39; Nicolle v. Le Cornu, tupra, η. 94). Or the referees might be ordered to proceed to

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w a s largely lacjcing in standardization.* 6 Despite the w i d e use m a d e of c o m missions, it should not be o v e r l o o k e d that the royal courts could be o r d e r e d to rejiear a cause. 9 7 In short, the conspicuous element of this aspect of conciliar jurisdiction is the total lack of formalization. N o pattern is discoverable f o r prediction as to the f u t u r e course of a specific appeal before the C o u n c i l Board. I n most cases the appeal w a s not dealt w i t h so s u m m a r i l y by the C o u n c i l . Instead, the petition of appeal a n d ancillary petitions presented in the course o f the appellate proceedings w e r e referred by the C o u n c i l to m e m b e r s of a g r o u p w h i c h m a y be conveniently termed the conciliar legal advisers. 9 8 T h i s g r o u p w a s loosely c o m p o s e d of the c r o w n l a w officers, various judicial a n d " l e a r n e d counsell." legal advisers varied. A

99

figures,

T h e terms of the individual references m a d e to the reference m i g h t contain authority to e x a m i n e and

settle an appeal if possible; if not, to certify the proceedings therein to the C o u n c i l . 1 0 0 O r a reference m i g h t only authorize a n examination of a n appeal a n d certification of opinion t h e r e i n . 1 0 1 T h e certificate returned by the legal judgment and certify their proceedings to the Council Board (Lc Hagais v. Cabot, supra. n. 93; Lawrence v. Fourneaux, 19 APC, Dont., 140). Or if the commissioners could not settle the cause, they might be ordered to take bonds of the parties to appear before the Privy Council in prosecution of an appeal and to certify their proceedings (Payne v. Constant, supra, n. 92; Rowse v. Labey, supra, n. 93; Le Porke v. Mount«, supra, n. 92). ββ Signeur de Rosol, Hampton Stocker, la Rocher, or any two thereof (In re Goalement, supra, n. 92); the governor of Jersey, three jurats, and two others, or any three, four or five thereof (Godfrey v. Messervy, supra, n. 92); the governor of Guernsey, and three named persons, or any two or three thereof (Sare v. Lempriere, supra, n. 93); the governor of Jersey and three others, or any three thereof (Le Porke v. Mountes, supra, n. 92). 1,7 De Soulement v. de Soulement, supra, n. 95; Le Hagais v. Cabot, supra, n. 93; Lawrence v. Fourneaux, supra, n. 95. 98 See inter alia Harris v. Arthur ( 1 5 APC, Dom., 403); Perin v. Perin (18 ibid., 386); Rowse v. Gower (21 ibid., 298); Regina v. Beauvoir (21 ibid., 296); Gallie v. de la Rocque (25 ibid., 144); Blundell v. de Soulement (28 ibid., 514); Hérault v. Nicholes (31 ibid., 2 5 1 ) . flB Among the various references are the following: to "her Majesty's Learned Counsaile"

(28 APC, Dom., 557); to her Majesty's learned counsel or any of them (28 ibid., 5 1 5 ) ; to the Attorney General and the Solicitor ( 1 6 ibid., 4); to the Master of the Rolls, the Solicitor and Dr. Hammond ( 1 4 ibid., 3 1 ) ; to Judge of the Admiralty Caesar (29 ibid., 72); to Francis Bacon (28 ibid., 538); to the Solicitor General and Recorder of London (26 ibid., 3 2 ) ; to Council Clerk Beale and Dr. Dunne (30 ibid., 736). In the earlier appeals the Attorneys and Solicitors General are the most frequent referees; toward the end of the period the Solicitor General is most prominent. In one instance the respective governors of Jersey and Guernsey were joined with Solicitor General Francis Bacon and the Recorder of London "to the end that, by joyning the knowledg of the customes of the said Islandés togither with the rule of law and justice, you may consider of such an ende and agreement betwixt them as may be agréable both to law and good conscience" (28 ibid., 296). Dr. Hammond is also mentioned as one acquainted with island causes ( 1 3 ibid., 160). As to his Majesty's "learned counsel," see 6 Holdsworth, HEL, 472-74. 100 Harris v. Arthur (15 APC, Dom., 403); Perin v. Perin (18 ibid., 386). In the former case the referees were to bind the parties to appear before the Council in case of inability to settle the cause. 101 In Gallie v. de la Rocque (25 APC, Dom., 144), the Board wrote that "we have thought

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advisers as referees might advise reversal or affirmance, or it might advocate further hearings before commissioners in the islands. 1 0 2 A conciliar letter w o u l d then issue based upon the certificate. 1 0 3 If a rehearing before commissioners was advised and ordered, provision might be made for further conciliar action in the cause. T h i s could be obtained by authorizing certification of the proceedings of the commissioners to the Council Board in case of inability to settle the cause, or by allowing an appeal to the Council from the commissioners' proceedings. 1 0 4

O u r account necessarily oversimplifies the

conciliar procedure and eliminates the procedural probability that ancillary points might be raised during the prosecution of an appeal with petitions, references, certificates, and orders thereon. 1 0 5 Receiving multifarious petitions, m a k i n g references thereof, issuing orders upon advice of other groups, and holding f e w hearings on the merits, the Privy Council at this period assumed the function of an administrative rather than a judicial body. A s to the procedure adopted by the legal advisers, there is no wealth of ingood to referre the examinasion of his cause unto you. In which, when you have enformed your selves throughlie of all pointes of substance or difficultie and considered what is fitt to be donne for his reliefe, we require you to certifie us of your opinions therein with convenient expedition (as in like cases you have used by our direction), that we maie give order accordinglie in the same." See also Paine v. Fautrat (14 ibid., 3 1 ) . 102 In Perin v. Perin (19 ibid., 35), affirmance was advised. In de la March v. Gosselin (28 ibid., 36), re-examination was advised, if precedents permitted. Double references might occur, i. e., a certificate returned by Doctors Dale and Aubrey was referred to the Judge of the Admiralty to procced thereon ( 11 ibid., 14).

10 1

· It is difficult to determine how closely the Council followed the reports of its legal advisers—whether they were accepted in toto without further consideration, or whether suitors were afforded opportunity to "appeal" from the report of the legal advisers to the Council Table. See the language of a 1588 conciliar entry: "This day John Carteret of the Isle of Jersey being heard before the Lords upon an appeale" (16 APC, Dom., 4). On December 15, 1589, we find the cryptic conciliar entry that, "In the after noone the Lordcs did here Jerysshe cawses" (18 ibid., 262). See the interpretation placed upon this sentence by Pollard (Council, Star Chamber, and Privy Council under the Tudort, 38 EHR, 58).

104 See de la Rocque v. de la Rocque (26 APC, Dom., 32); Blundell v. de Soulement (28 ibid., 514); Journeaulx v. Hampton (28 ibid., 538). In Beauvoir v. Beauvoir, in case either party refused to abide by the decision of the insular referees, bonds were to be taken for appearance of the parties before the conciliar legal advisers active in the cause (28 ibid., 546-47). Cf. supra, η. 95, where no preliminary reference to legal advisers was made. 105 The regular course of appellate procedure was diverted by failure of respondents to appear (Paine v. Fautrat, 14 APC, Dom., 47; Rowse v. Gower, 19 ibid., 322; Bisson v. Sfocali, 31 ibid., 342); jurisdictional objections (Paine v. Fautrat, 14 ibid., 3 1 ; Guillam v. Le Court, 32 ibid., 194; Sare v. Lempriere, 31 ibid., 255); recalcitrance to commission jurisdiction (Gallic v. de la Rocque, 25 ibid., 396; Guillam v. Le Court, 31 ibid., 401; Sire v. Lempriere, 31 ibid., 456); recalcitrance to referee orders (Dumaresq v. Guillam, 29 ibid., 72); the recalcitrance of the courts below (Drake v. Macham, 28 ibid., 106; Beauvoir v. Beauvoir, 29 ibid., 251); failure of commissions to afford relief (Regina v. Beauvoir, 22 ibid., 1 1 5 ; de Carteret v. Dumaresq, 29 ibid., 67·, Blundell v. de Soulement, 30 ibid., 699); conciliar change of opinion (de Carteret v. Dumaresq, 29 ibid., 684); death of parties to the appeal (de Carteret v. Dumaresq, 30 ibid., 705).

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f o r m a t i o n to be f o u n d in the C o u n c i l registers. T o s o m e extent the p r o c e d u r e is indicated by the terms of the various r e f e r e n c e s . 1 0 6 It is evident that in m a n y cases the parties w e r e h e a r d ore tenus by the legal a d v i s e r s , 1 0 7 w h o e v i n c e d a dislike f o r ex parte h e a r i n g s . 1 0 8 I n s o m e cases counsel, as well as the parties themselves, w e r e h e a r d . 1 0 9 In addition to parties to the appeal, m e m b e r s of the island judiciary m i g h t be directed to appear b e f o r e the r e f e r e e s . 1 1 0 T h e scope of the r e v i e w p o w e r exercised by the legal advisers w a s b r o a d , i n c l u d i n g errors both of l a w a n d of f a c t . 1 1 1 Essentially a rehearing of the cause took place, at w h i c h additional evidence not introduced b e l o w m i g h t be submitted. T h i s is indicated by the terms of certain references to the legal advisers 108

112

a n d by several orders f o r the t a k i n g of additional evidence in the

These references included: " T o examine the appeale" (Perin v. Perin, i8 APC, Dom., 386); "that you will heare the same cause of appeale" (Rowse v. Gower, 21 ibid., 299); to certify their opinions "when you have enformed your selves throughlie of all pointes of substance or difficultic" (Gallic v. de la Rocque, 25 ibid., 144); to call before them the parties, and upon knowledge taken of the case by the petitions, informations, evidences and such proofs as should be exhibited and by the former proceedings to make a final order (de la Rocque v. de la Rocque, 28 ibid., 297) ; to examine two petitions, one of appeal, another of complaint, exhibited against appellant, to have the parties appear before them, with such proofs and witnesses as they could produce, and to proceed to set down a final order (Harris v. Arthur, 15 ibid., 403). 107 See particularly Paine v. Fautrat ( 1 4 ibid., 3 1 ) ; Perin v. Perin ( 1 9 ibid., 36) ("upon hearing of the matter at large debated"). 108 In Gallie v. Maugier (25 ibid., 1 5 1 ) the legal advisers reported that "by reason of the absence of the adverse partie they cannot indifferentlie judge of the full substance of the matter," so a hearing was ordered by a Jersey commission. In Macham v. Carey (30 ibid., 250) the legal advisers reported that "the appeale coulde not be proceeded in as it ought to have bin" because of respondent's absence. But cf. the enigmatic statement in Marchant v. Beauvoir (29 ibid., 489), that "the appeales which are made from the sentences given by the BailifTes and Jurattes of the Isles of Guernsey and Jerzey are to receavc an ordinary tryall either with the appealant or defendant." See also Rowse v. Gower (21 ibid., 298) where when an appeal was referred to the crown law officers, they were of opinion

the adverse party should be summoned. In Beauvoir v. Carey (30 ibid., 736) a new hearing was ordered when Governor Leighton alleged that he was prejudiced by a former order after a hearing at which he was not represented. 100 For hearings of both parties and counsel at large see de Carteret v. Dumaresq (30 ibid., 1 6 1 ) ; Beauvoir v. Beauvoir (28 ibid., 596). 110 In Paine v. Fautrat (14 ibid., 47) "some of the Justices" were "to repaire hither to awnswere the validitie of a sentence given by them." In the same cause the bailiff was directed to be present, probably because of his petition for repeal of a conciliar letter as prejudicial to the administration of Guernsey justice ( 1 4 ibid., 3 1 ) . 111 See particularly the 1580 conciliar regulations for Guernsey, supra, pp. 1 3 - 1 4 . 112 In Harris v. Arthur the legal referees were to cause the parties "together with such proofes and wytnesses as should be produced" to appear before them ( 1 5 APC, Dom., 404). In de la Rocque v. de la Rocque the legal advisers were to take knowledge "of the state of the cause by the peticions, informacions, evidences, and such proofes as they shall exhibite unto you" (28 ibid., 297); cf. supra, η. io6. In Gosselin v. Blundell (29 ibid., 570) the bailiff and jurats were ordered to deliver to the parties all writings produced at the original hearing, especially a certain compromise between the parties which appellant complained was withheld from him. Directions upon reference of an appeal to include the former proceedings in the cause (supra, p. 1 7 ) would certainly be redundant if review jurisdiction were confined to errors appearing in the record.

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court b e l o w . 1 1 8 B u t the instances in which hearings upon reference resulted in recommendations of affirmance or reversal were f e w ; 1 1 4 the majority of the certificates of the legal advisers advocated a rehearing before commissioners in the islands. T h e reasons stated for advising insular rehearings are various. T h e y include the nonappearance of the respondent before the legal adv i s e r s , 1 1 6 the dependence of the judgment on local law or c u s t o m , 1 1 6 the agreement of the parties, 1 1 7 the convenience

118

and the desire of the a p p e l l a n t . 1 1 ·

T h e related question arises as to the scope of the preliminary hearing or examination by the legal referees resulting in certification advocating insular rehearings. In some causes it clearly appears that the referees had reached a conclusion as to the erroneous character of the proceedings b e l o w . 1 2 0 In other instances it appears that no attempt was made to enter into the merits 113 In Drake v. Macham (26 APC, Dom., 350-5:), the Royal Court was ordered upon arrival of appellant or his attorney to call before them such witnesses as were named, take their depositions and certify them to the Council, along with all other proceedings in the cause. In Anley v. Stocall (31 ibid., 342) Governor Raleigh was ordered to give directions that such persons as were produced should be examined as to their testimony in re the validity of certain wills. Bonds were also to be taken of the parties for their appearance at the Council Board for hearing before persons nominated by the Council. 114 The legal advisers certified in favor of affirmance in Beauvoir v. De Vicke (15 APC, Dom., 336); In re Carteret (16 ibid., 4); Perin v. Perin (19 ibid., 35); Drake v. Macham (28 ibid., 246). In Harris v. Arthur (15 ibid., 427) an agreement between the parties was certified. In de Carteret v. Dumaresq (29 ibid., 620) the Solicitor General advised that the appeal was void for lack of prosecution within the time limited. In Blundell v. de Seulement (30 ibid., 474) Francis Bacon certified to the same effect. 1,5 See fttpra, n. 105. 114 De la Rocque v. de la Rocque (26 APC, Dom., 347) (question whether by will father could bequeath more of personalty to one child than to another). In Anley v. Stocall (32 ibid., 478) the parties desired the cause to be heard in Jersey, "where the right and justnes of the cause might best be discerned." 117 De Carteret v. Dumaresq (29 ibid., 67). 118 Blundell v. Soulement (28 ibid., 514). It may be that absence of the respondent made it more convenient to have the rehearing in Jersey.

" • T r a c h y v. Lempriere (31 ibid., 39). In Regina v. Beauvoir (21 APC, Dom., 296) learned counsel certified that "the proccedinges in the behalf of the said Beauvoire have been very partiall, as well in respect that the Baylif was secluded from the sentence without anie apparrant just cause of exception, as also that two of the brethren-in-law of the said Beauvoir and one Harries, a Jurat, altogether affected to the said Beauvoire, were the men that did give this sentence." Governor Leighton was thereupon ordered "to cause this matter againe to be fully and deIiberadye heard by indyfferent Jurâtes, and such as shall not be carried with anie parcialitie or affection." In Macham v. Carey (30 ibid., 250) learned counsel represented that "sentence was made contrarie to the lawes, customes, and privileges of the Island." Thereupon Governor Leighton was directed to appoint "some discreete and sufficient persons of that Island, such as are not helde partiall and have not bin dealers in the behalfe of either partie heretofore, uprighdie to heare and determine this cause." In Harris v. de la March (25 ibid., 169) the appeal was found good by the referees, since appellant was not permitted to produce proofs and witnesses below, but had to hazard the cause on bis adversary's oath. However, the hearing and ending of the cause was committed by consent of the parties to certain commissioners nominated by them. Cf. de la Rocque v. de la Rocque where an opinion was reached upon ex parte representations, but the adversary was provided with opportunity to change this opinion (26 ibid., 32). 120

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of the appeal or that such attempt w a s u n s u c c e s s f u l . 1 2 1 T h e factor of p r e j u d g m e n t by the legal advisers does not seem to h a v e affected the f o r m of the reh e a r i n g in the i s l a n d s . 1 2 2 W h e n a rehearing b e l o w w a s advised, there w a s no standardization of c o m m i s s i o n provisions. B u t the commissioners w e r e often g i v e n directions to call the parties before t h e m , 1 2 3 to w e i g h evidence produced by the p a r t i e s , 1 2 4 or to consider f o r m e r proceedings in the c a u s e . 1 2 3 T h e elem e n t of composition a n d the necessity of obtaining the assent of the parties to the settlement of the comissioners w a s also p r e s e n t . 1 2 0 T h e usual provision in case of inability of commissioners finally to order the cause w a s certification of the proceedings to the C o u n c i l f o r f u r t h e r consideration

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or requir-

i n g bonds of the parties to prosecute the appeal before the C o u n c i l w i t h certification of the commissioners' proceedings therein and opinions t h e r e o n . 1 2 8 T h e character of c o m m i s s i o n personnel is largely the same as f o u n d in commissions appointed by the C o u n c i l w i t h o u t preliminary c o n s u l t a t i o n . 1 2 9 T h e r e is little i n f o r m a t i o n available as to the procedure adopted by the C o u n c i l B o a r d in its o w n hearings. It w o u l d appear that h e a r i n g s w e r e ex parte

in m a n y cases; perhaps action w o u l d be g u i d e d by i n f o r m a t i o n f u r -

121 Gallic v. de la Rocque (25 ibid., 1 5 1 ) ; de la Rocque v. de la Rocque (26 ibid., 347); Blundell v. Seulement (28 ibid., 5 1 4 ) ; de Carteret v. Dumaresq (30 ibid., 1 6 1 ) ; Hérault v. Nicholes (31 ibid., 2 5 1 - 5 2 ) . 122 Compare the cases cited supra with Trachy v. Lempriere (31 APC, Dom., 39); Gallie v. de la Rocque (25 ibid., 1 5 1 ) ; Hérault v. Nicholes (31 ibid., 2 5 1 ) . But notice that commissioners were directed to consider the former proceedings in Anley v. Stocall (32 ibid., 478); Journeaulx v. Hampton (28 ibid., 538). Where the former proceedings had been found erroneous, it would seem scant wisdom to have them taken into consideration by the commissioners. 123 Gallie v. de la Rocque (25 ibid., 1 5 1 ) ; Journeaulx v. Hampton (28 ibid., 538). 124 See especially Regina v. Beauvoir (21 ibid., 296); Harris v. de la March (25 ibid., 169). Also Journeaulx v. Hampton (supra, n. 1 2 3 ) ; Gallie v. de la Rocque (supra, n. 123); Trachy v. Lempriere (supra, n. 122). 126 De la Rocque v. de la Rocque (28 APC, Dom., 296); Journeaulx v. Hampton (supra, n. 123). 126 Journeaulx v. Hampton (supra, n. 1 2 3 ) ; Gallie v. de la Rocque (supra, n. 123). In Marchant v. Beauvoir (23 APC, Dom., 374) where an appeal was returned for insular hearing, the island judiciary was reluctant

to grant execution of the sentence until the conciliar pleasure was known. 127 Gallie v. de la Rocque, supra, n. 123. 128 In Macham v. Carey (supra, n. 120), commissioners were to take bonds of the parties to prosecute the appeal before the Council within 40 days thereafter. Compare the usual Guernsey three- or four-month period, supra, n. 83. 129 Usually the commissioners were from the same island as the appeal, but cf. de Carteret v. Dumaresq (30 APC, Dom., 1 6 1 ) . The commission might be composed of the governor alone (Payne v. Constant, 27 ibid., 338), the governor, bailiff, and jurats (Le Febure v. Harmon, 28 ibid., 107; Gallie v. de la Rocque, 25 ibid., 1 5 1 ) , the governor, some jurats, and some laymen (Godfrey v. Messcrvy, 29 ibid., 500). But in some cases the Royal Courts themselves were used to reexamine causes (de Seulement v. de Seulement, 18 ibid., 39; le Hagais v. Cabot, 19 ibid., 140). Commission size thus varied from one (governor) to thirteen (Royal Court); cf. the ten in de la March v. Gosselin (27 ibid., 12). Personnel might be determined by the Council (Rowse v. Gower, 21 ibid., 298), the parties (Harris v. de la March, 25 ibid., 169), the jurats (Harris v. de la March, 26 ibid., 16) or insular executives (Regina v. Beauvoir, 21 ibid., 296; Rowse v. Labey, 27 ibid., 54).

RISE OF JURISDICTION

23

nished by island officials. 1 3 0 T h e function of the C o u n c i l at this time w o u l d seem to have been to move the court below or insular commissioners to a rehearing—if allegations made before the Board proved true. Probably no attempt w a s made by the Board "to bolt out the truth" of a c a u s e . 1 3 1 It is also likely that the Council Board did not encourage importunate suitors f r o m the Channel Islands by elaborate hearings any more than they encouraged the domestic variety. 1 3 2 T h e attitude displayed indicates preoccupation with more important matters

133

and irritation with the recurrent applications to

it by the litigious islanders. 1 3 4 Of a piece with this conciliar attitude is the deterrence of appeals by the infliction of imprisonment upon unsuccessful appellants

135

or by awarding costs to respondents. 1 3 ®

It would be a jurisdictional distortion to leave an impression that Channel Islands conciliar jurisdiction was limited to judicial appeals. M a n y letters issued from the Council in a variety of fields upon petitions of complaint, 1 8 7 since Channel Islands jurisdiction was essentially a microcosm of the conciliar jurisdiction exercised in domestic matters. T h e Board did not endeavor to entertain all complaints and give definitive orders therein. 1 8 8 Customarily 1,0 In setting forth the contents of petitions in conciliar letters much use was made of such phrases as "if his informasion be trew," "as he informeth," etc. For a good example see 19 APC, Dom., 139-40. In de la March v. Gosselin (27 ibid., 12) a sentence was declared void and of no effect, "we having asked the opinion of the Baili if and Jurats doe find that the said allañons ¡tic] was true;" cf. 28 ibid., 36. In Sare v. Lempriere (29 ibid., 58485) the Council was moved by petitioner's suit and the representation of Governor Paulet. 131 Cf. Pollard, Council, Star Chamber, and Privy Council under the Tudors,}S EHR 58-59. « 2 See 21 APC, Dom., 240; 23 ibid., 82. Cf. on the disposition of conciliar causes, Select Statutes and Constitutional Documents (ed. G. W. Prothero, 1906), 167. 183 See 13 APC, Dom., 103, where a certificate of Guernsey commissioners "which their Lordships have no tyme to peruse by reasons of other accions of service to her Majesties" was referred to the Master of the Rolls and Dr. Dale to consider. 134 Many directions to island commissioners contained clauses enjoining settlement of causes, "so that their Lordships be no furder trobled therewith," or similar sentiments. See 12 ibid., 187; 14 ibid., 47; 15 ibid., 427; 26 ibid., 347· 135 John de Carteret was committed by the

Board to the Marshalsea as well for soliciting a petition to overthrow an ancient Jersey court as for appealing without cause from a just sentence (16 ibid., 4). 138 Beauvoir v. De Vicke, 15 ibid., 336 (respondent to be satisfied for expenses put to by appeal); Perin v. Perin, 19 ibid., 35 ("we think it mee te that he having appealed without cause (as it is certified) should paie the defendance such costes as you shall thinke meete to award"). 137 The subject matter of these complaints was varied, including: debts owing (8 ibid., 1 1 3 ; 31 ibid., 342); disseisin (7 ibid., 36465; 8 ibid., 146; 14 ibid., 174); delay in execution of sentence (10 ibid., 276); wrongful detention of evidence of title (12 ibid., 16); rent disputes (13 ibid., 102); wrongful dowry detention (15 ibid., 48); judicial delays (19 ibid., 250, 330; 22 ibid., 434; 28 ibid., 386); denial of insular privileges (24 ibid., 220); grievous tax burdens (19 ibid., 249, 262); fear of hard measures (19 ibid., 262; 24 ibid., 222); maladministration of island officials (20 ibid., 118); illegal assumption of Admiralty jurisdiction (21 ibid., 427); wrongful imprisonment (22 ibid., 227); unconscionable practices (25 ibid., 378); fraudulent concealment of property (28 ibid., 286); breach of contract to marry (29 ibid., 728). 134 The Council restricted itself to hearing

24

RISE OF JURISDICTION

it referred the matter back to commissioners in Jersey or Guernsey to examine or determine. 139 But a hearing by the Council upon the certified proceedings of the insular commissioners might be provided. 1 4 0 In some cases the Council Table only exhorted the insular judiciary to correct their complained-of conduct. 1 4 1 Referees might be ordered to examine complaints and report to the sovereign. 142 A n ecclesiastical complaint might be referred to the Bishop of Winchester to examine and terminate. 143 There are indications that the Board came to find the flow of petitions from the islands irksome 1 4 4 and that some islanders in turn thought the conciliar jurisdiction too extensive. 145 W e have already noticed the methods used to discourage the presentation of unfounded petitions, viz., imprisonment 1 4 6 or the award of costs and damages to the aggrieved party. 1 4 7 To expedite petitionary matters a persistent complainant might be ordered to deposit security with the Council Board to substantiate his allegations. 148 On the other hand, the Council might order that parties complained of give bonds to appear before the B o a r d 1 4 9 or that a conciliar messenger be dispatched to insure appearance. 150 In summary, the Elizabethan period may be characterized as one in which conciliar appellate jurisdiction over the courts of the Channel Islands became firmly established, as one in which jurisdictional limitations were enunciated, but were immediately submerged in the omnicompetent aspects of conciliar jurisdiction. This was an era in which procedure was marked by lack of important complaints. See the 1565 complaint of the Guernsey inhabitants (7 APC, Dom., 221), but cf. the later reference thereof, ibid., 234. In 1580 conciliar hearings were held of more Guernsey complaints before and after reference to special commissioners (12 ibid., 174). The Board also heard the matters in controversy between Governor Leighton of Guernsey and Bailiff Wigmore et al. (15 ibid., 379). In 1597/8 Master of Requests Caesar and Council Clerk Beale were ordered to hear the complaints of three Guernsey jurats against Governor Leighton. Apparently reference was made because the Board found "the particularities many on both sides and the matters both of complaint and answere (being sett downe at large) to be longe and to have neede of some consideración" (28 ibid., 330). For conflict of desire to furnish relief to a supplicant and lack of time to entertain the complaint see 31 ibid., 59. 1 3 9 For variant terms of such references, compare 8 APC, Dom., 113; 9 ibid., 133; 11 ibid., 387; 24 ibid., 447. The personnel of the commissions varied widely. Compare 8 ibid.,

113; 10 ibid., 276; 19 ibid., 250; 11 ibid., 387; 13 ibid., 388; 16 ibid., 21; 18 ibid., 315. 1 4 0 See 8 ibid., 113; 13 ibid., 102, 160. 1 4 1 See 12 ibid., 130; 19 ibid., 250, 330. But the Board showed no hesitancy in intervening in lower court proceedings when public interests were involved. It even took the measure of ordering to appear before it jurats reluctant to convict for statements derogatory to the King and the kingdom (28 ibid., 26). 1 4 2 See 12 ibid., 62. 1 4 3 13 ibid., 104. 1 4 4 In 1598 the Council marveled to find so great a number of petitioners repairing to the Council Board from the islands especially when many matters made the subject of petitions were petty and could well be settled locally (28 APC, Dom., 508-9). 1 4 5 28 ibid., 412-13. 1 4 6 See 14 ibid., 26; 17 ibid., 162; 28 ibid., 420. 1 4 7 18 ibid., 315. 1 4 8 See 19 ibid., 137; cf. ibid., 213. 149 Ibid., 383; 20 ibid., 35. "o ibid., 66.

RISE O F J U R I S D I C T I O N

25

formalism and by absence of predictability. This long reign was a mere prologue in which nascent judicial power was cloaked by mechanical functions, in which a grandiose jurisdiction was maintained at the expense of measured deliberation—an epoch of reference to and of reliance upon the advice and actions of extra-conciliar bodies. CHANNEL ISLANDS APPEALS UNDER THE FIRST STUARTS

Due to an unfortunate destruction of the Privy Council registers, the early transitional years of the Stuart Council must remain obscure. 151 One bit of information has survived—that on June 9,1605, further regulations for Guernsey appeals were issued by the Board. 1 5 2 A s to the externals of the Council at this date, it can be said that membership during the reign of James I increased gradually until the Council approximately doubled that of Elizabeth in numbers. 153 Under Charles I membership usually stood between thirty and forty. 1 5 4 But the entire body seldom assembled; ten or twelve has been estimated as an average attendance. 155 This numerical increase combined with an increase in conciliar business, necessitating the adoption of a committee system to expedite the conciliar routine. 156 Generally, it can be stated that the K i n g was not present in Council, although Charles did attend more frequently as his reign progressed. 157 Geographically, the Privy Council tended to centralize at Whitehall. 1 5 8 A m o n g the institutional developments of the early Stuart period was the expansion of the Council's judicial and deliberative work. A n inevitable concomitant was the decline in the functional importance of ancillary conciliar groups. 159 A manifestation of this institutional growth is found in the active The Privy Council registers from Jan. i , 1601/2, to April 30, 1613, were destroyed by a fire at Whitehall in January, 1618 (APC, Dom., 1613-14, ν). 1 5 2 By this regulation no appeals were to be made from Guernsey concerning matters of inheritance under ¿ 40 of annual rent, nor for any movable goods under the value of ¿10 sterling (ibid., 1627, 370). 151

153

ι Turner, The Privy Council

of

England,

72-75· Ibid., 79. Ibid., 97, 100. There is noticeable an attendant nucleus of important officials of the state (ibid., 98-99). Meetings were so frequent that regular attendance would have been onerous (ibid., 93). 1 5 6 E. I. Carlyle, Committees of Council under the Earlier Stuarts, 21 EHR, 674. Some use of a form of committee system is found previously 154 155

in the reigns of Mary (4 APC, Dom., xxxv, 397) and Elizabeth (6 ibid., xi, 27-28; n ibid., xii; 21 ibid., x x i ) ; cf. Percy, op. cit., 3 7 39. Earlier in the Stuart period Sir Francis Bacon had advocated adoption of a committee system (Bacon's Essays [ann. R. Whately, 1863], 2 1 2 - 1 3 ) . ι Turner, op. cit., 101-2. Ibid., 86-92. 1 5 9 The large itinerant commission still retained some importance. See the March, 1616/7, instructions to Jersey commissioners Conway and Bird (APC, Dom., 1616-17, 187). Upon return of this commission many particulars appeared which required further consultation and some order from the K i n g or the Board, so the Lords referred the matter to a select committee to consider such matters as concerned the military and civil government and report to the Board that the Lords might 157 158

26

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part taken by the B o a r d in deciding appeals u p o n hearings held before i t . 1 6 0 T h e s e hearings w e r e not c o n f i n e d to the adversarial a r g u m e n t s ; in addition to h e a r i n g the parties, their representatives, a n d counsel, the B o a r d in f o r m u l a t i n g its j u d g m e n t m i g h t rely u p o n i n f o r m a t i o n about local l a w supplied by the island j u d i c i a r y . 1 6 1 S o m e t i m e s the C o u n c i l m i g h t act ex parte,

reversing

u p o n petition of the appellant f o r f a i l u r e of respondent to a p p e a r , 1 6 2 or u p o n respondent's petition, dismissing an appeal f o r failure to p r o s e c u t e . 1 6 3 T h e C o u n c i l also m a d e interlocutory disposition of causes w i t h o u t consultation w i t h a n y other b o d y . T h e s e dispositions w e r e m a d e f o r various reasons a n d in different w a y s . U p o n application of appellants, causes w e r e referred back to the islands f o r rehearing or r e v i e w . 1 6 4 W h e r e the sole issue w a s one of fact, the B o a r d ordered Jersey commissioners to e x a m i n e witnesses a n d to return a certificate o n the disputed point so that f u r t h e r action could be t a k e n . 1 6 5 O r w h e r e a cause could not be fitly e x a m i n e d in C o u n c i l , it m i g h t be referred back to the island j u d i c i a r y . 1 6 6 A similar reference m i g h t be m a d e be better prepared to advise the King. Matters ecclesiastical were referred to the Archbishop of Canterbury and the Bishop of Winchester (ibid., 1618-19, 84). 160 See Hue v. Lempriere (ibid., 1616-iy, 128); Messervy v. Mattingly (ibid., 1618-19, 230); Rex v. Baillehache (ibid., 1619-21, 265); Langlois v. Messervy (ibid., 1621—23, 2 4 1 ) ; Oliver v. Jacquett (ibid., 1623-2;, 192); cf. ibid., 1613-14, 604, 621, where original jurisdiction in a dispute as to the office of bailiff in Jersey was assumed, but upon hearing it was ordered that the matter be brought before the Chief Justice. 161

Langlois v. Messervy (ibid., 1621—23, 2 4 1 ) , where the Council stated that it was evident from letters from the greater number of the Royal Court that plaintiff-respondent by the law and custom of Jersey could not be put to his oath in this case, as claimed by appellant. 162 Rex v. Dumaresq (ibid., 1619-21, 280); de Rues v. Langlois (ibid., 1621-23, 319). 163 Rex v. Fiot, ibid., 1623-25, 196 (appeal declared void upon respondent's allegation that it was not prosecuted within three months and no cause shown for delay). 164 Hérault v. Auley, ibid., 1615-16, 290 (allegation that the cause was heard by too few jurats, ordered reheard in the presence of all or most of the Royal Court) ; Kellett v. Dumaresq, ibid., 1619-21, 323 (allegation that respondent "takeinge advantage of an imperfect verdict, contrary to equitie, and before the whole legall separación of the premisses was

tryed, caused the said verdict to be approved in a waste paper by the bailiff and some jurâtes there, to the great hurt and losse of him the said appellant," ordered a review made by twenty-four impartial persons chosen by both parties). Cf. the action upon the petition of Elias Dumaresq ordering Elias de Carteret et al. to call before them the petitioner, and one Duhamell, and to re-examine upon interrogatories the witnesses formerly produced in an assault suit. If these commissioners found that Duhamell had injured the petitioner, they were to cause him to make satisfaction, or otherwise to report to the Board the true state thereof with their opinion (PC 2/46/81). 165

In Hue v. Renouf (APC, Dom., 1621-23, 42) it was stated that "appealant produceth a certificate under the handes of 4 witnesses by which he endeavoureth to prove the sentence to be erroneous and the defendant hath the handes of divers of the jurattes which he hath gotten since the appeale certifieing the contrary." Thereupon, commissioners were ordered to call before them the above four witnesses and any others the parties produced and by interrogatories in writing take examinations on oath as to two stated issues. 166

In Messervy v. Godfrey (ibid., 1621-23, 144) the sentence appealed from concerned the full performance of a contract between the parties. This contract "consisteth of many particulars which cannot fitly be examined here, the same requiring a personall view and judgement." So the Royal Court by consent

RISE OF JURISDICTION

27

when the subject matter w a s of too little value to justify the expense of an appeal h e a r i n g . 1 6 7

O r a cause m i g h t be remanded to arbitration in the

islands. 1 6 8 In addition to these conciliar letters issued in causes coming before the Board by w a y of appeal, orders were made in nonappellate causes. N o great distinction w a s m a d e between appellate jurisdiction and jurisdiction to order rehearings or re-examinations in other causes. 1 6 9 T h e island rehearing seems to have been considered peculiarly of use w h e n an appeal w o u l d not lie; the attitude of the Council emphasized that subjects should not lack proper redress for formal reasons. 1 7 0 In this connection the doleance tance. 1 7 1 O f civil l a w origin, the doleance

w a s of great impor-

w a s in the nature of a complaint

against the judges rather than an appeal. It has also been defined as " a petition for a review of proceedings not brought up in the ordinary course of appeal."

172

T h i s f o r m of petition w a s considered the proper procedural step w h e n an appeal had been refused b e l o w . 1 7 3 U p o n application for relief by w a y of was ordered to take an "exact view and examination" in the presence of the parties whether the contract had been fully performed. In Oliver v. Jacquett (ibid., 1623-25, 192) the cause could not "be ordered or sett out heere [at the Council Board] by reason of the locali customes and usuages of that island and the many witnesses to be produced and examined in either part inhabiting in the said island." 167 Le Roulx v. Le Roulx (ibid., 1621-23, 7°)· 188 Chapman v. Le Geyt, ibid., 1621-23, 7° (sentence given by insufficient number of jurats). 169

In Bertram v. Dumaresq (ibid., 1618-19, 270) an appeal was entered (see ibid., 239), but a composition was reached by the parties and approved by the Council. Of this procedure the Council stated that "whereas wee understand that by the custom of the isle there is fyne or fee due unto you the bayliffe pour fol appel in cases where any appeale is not prosecuted, we have been moved least this should be taken for an appeale to prey you not to demand any such duty in this cause." One Poindextre having complained of some hard proceedings against him in a battery action, the Board declared that it was not usual to permit ex parte impeachment of insular justice. Since the complaint hinged on a question of fact, three persons in the island were ordered to take the testimony of witnesses and to certify the true state of the matter. From two reports returned with many examinations and depositions, it appeared that the proceedings were

such that they could not be approved of; the evidence not supporting the sentence, it was ordered repealed (ibid., 1618-ig, 370; ibid., 1619-21, 213). 170 In Gardener v. Marchant (ibid., i6i6-iy, 137) Gardener petitioned for relief against a Guernsey sentence in a battery action, alleging the partiality of several jurats. The Lords stated that they could not take notice of the matter by way of appeal and summon the parties over, "the matter beinge of such a nature as, by the customes of that island and the orders of this Boarde perhapps will not conveniently permitt any such proceedinges. But it beinge in no sorte reasonable that his Majesty's subjectes should for matter of forme want redresse, if there be cause of grievance," the bailiff and three jurats were authorized to review the previous proceedings, to examine such witnesses as were produced, and to make a final order in the cause. 171

On the doleance see Poingdestre, op. cit., 35 _ 37; 3 Le Geyt, op. cit., 339-44. It is alleged by the former that doleances were subject to the same rules as to entrance and prosecution as appeals (op. cit., 235). See infra (p. 32), the 1627 conciliar regulation of doleances from Guernsey, but this regulation on its face would not seem to extend to Jersey. 172 Report of the Commission Appointed to Inquire into the Civil, Municipal, and Ecclesiastical Laws of the Island of Jersey (1861), liv. 173 See In re Briard (APC, Dom., 1616-17, 2 1 3 ) ; In re de Carteret (ibid., 1618—19, 237). 2

28

RISE OF JURISDICTION

doleance, a rehearing below might ensue.174 But the exercise of such jurisdiction upon doleance was not uncontested by the local jurats. 175 There are other nonappellate causes and seemingly non-doleant causes in which a remand to the island "to better examine" some point is found. 176 During this early Stuart period the legal advisers continued to play a large part in the appellate process. It is observable that a greater number of definitive determinations emanated from this group than had earlier been the case.177 However, the interrelation of the Board, the legal advisers, and the insular commissions or judiciaries is puzzling; in a given appeal it is difficult to predict the course which will be pursued. Seldom evident or articulate is the rationale upon which the Board decided to hear certain causes itself, to refer others to the legal advisers or to return others to the islands, although this question must have been of peculiar importance to the individual litigant 174

In the case of In re Briard (supra, n. 1 7 3 ) , Lord Carew, the Guernsey governor, was ordered to set down some impartial course by means of commissioners in the island or elsewhere for hearing and determining the matter or else for certification thereof to Lord Carew. In the case of In re de Carteret (supra, n. 1 7 3 ) the Royal Court of Jersey with the governor or lieutenant-governor present was to re-examine the cause, to admit such evidence as was produced, and to proceed to sentence. 1TS In the case of In re Briard (ibid., 1616-17, 3 2 ; ) remonstrance was made to the appointed commissioners, nine Guernsey jurats (see supra, n. 174), that proceeding on the commission "would be very prejudiciall to the authority of their charter and the King's court there." The commission thereupon did not determine the cause, although it certified that the property in question belonged to Briard, but left it to the consideration of the Board. The Board, since the commission was grounded upon doleance and not appeal, ordered that the cause should be further heard before his Majesty's learned counsel in England, the jurats to send some of their number to be present if they thought fit. One reason for this objection may have been that one bailiff on the commission was from Jersey, a feature to which we have already seen objections made (supra, n. 89). This case may also be considered as a transitional step to the later doleance procedure, in which petitions of doleance were automatically referred to the appropriate Royal Court to answer before conciliar action was taken thereon; sec infra, p. 284. 178 One Clement Grin et uz. complained that the Royal Court of Jersey confirmed to Thomas Poindexter and Benjamin Gavey a deed of gift

obtained from Daniel Neel by sinister practices a few days before the decease of said Neel; that by island law such gift was of no validity without forty days survival thereafter, but might be revoked by the next of kin (petitioner's wife here). The Royal Court was thereupon ordered to re-examine the validity of the deed in question by such evidence as should be produced, and to confirm or disallow the same. From such sentence the aggrieved party was to be allowed an appeal; "upon such appeale the sentence and reasons of the same be inserted, together with the examinacions of the witnesses, and whole proceedinges of the cause to bee exemplifyed under the seale of that isle" (In re Grin, APC, Dom., 1618-19, 311). 177 See Messervy v. de la Rocque (ibid., 161314, 46); Baillehache v. Baillehache (ibid., 1615-16, 96); Dumaresq v. de Carteret (ibid., 1615-16, 169); Alford v. Guile (ibid., 161921, 408); Burton v. Hampton (ibid., 1623-25. 82); Gosselin v. Blanche (ibid., 1621-23, 42425); Briard v. Mansell (ibid., 1621-23, 506); Peyton v. Hérault (ibid., 1625-26, 1 1 6 ) ; Auley v. Le Jeune (PC 2/38/64); Blanche v. Quitteville (PC 2/39/384); cf. the action of the crown law officers upon the doleance of Edward Thompson. However, in addition to advising reversal or affirmance the legal advisers might accommodate the differences between the parties (De Vic v. Faleze, APC, Dom., 1613-14, 72; Marchant v. Marchant, ibid., 1619-21, 95), or they might advocate that the bailiff, assisted by some jurats, hear and determine all controversies between the parties without further appeal or petition to the Board (Girrard v. Girrard, ibid., 1623-25, 78).

RISE O F JURISDICTION

29

upon appeal. There is a related question as to the procedure employed when reports of the legal advisers were received at the Council Table. Was there automatic approbation of the report, followed by the issuance of a conciliar letter enclosing or embodying the report? It is indicated that in some cases the report was debated at the Board. 179 The legal advisers sometimes reserved policy considerations for the decision of the Council; 1 8 0 they likewise evidenced a tendency to leave disputed questions of fact to the decision of that body. 181 Where there had been a tedious cause replete with numerous orders and references, the Board might in desperation finally decide to hold a full hearing of the matter before itself.182 The personnel of the legal adviser group underwent a change during these reigns. Under James the bulk of the references were directed to the Attorney General and the Solicitor General. 183 These officers frequently were still referees during the reign of Charles, 184 but there are numerous examples also of recourse to the King's Advocate. 185 Sometimes references were also made 178

Unfortunately, in many eases the only entry in the Council register for an appeal is the conciliar letter determining the appeal. None of the earlier steps in the appellate course is recorded. But cf. the reference of a certificate of commissioners in a Guernsey dispute to the Attorney General and the Solicitor General, the Council "fynding the same to be verie long and to consist of many particulars" (ibid., ¡623-25, 189). " • D e Beauvoir v. Priaulx (PC 2/46/32). Upon debate on the Solicitor General's report, the Lords were not satisfied as to the scope of re-examination in the cause and ordered the reporting officer to explain in writing. But in this cause an order seems to have been issued previously without objection (PC 2/46/9). A later report of the Solicitor General is in the same terms as the one previously questioned. (PC 2/46/48). «0 PC 2/40/86. 1 8 1 In the attempts of Clement Masson to compel Hugh le Manquais to perform a contract of marriage with Masson's daughter, the King's Advocate examined the sentence of the Ecclesiastical Court in Jersey complained of by le Manquais and found no evidence of the alleged contract. The King's Advocate left it to the Board to decide whether the information now given was true or whether directions should be given for the Royal Court to examine the truth of the allegations and free le Manquais if unsubstantiated. The Board pursued the latter course (PC 2/40/86). See also the report of the Earl of Danby and the Attorney General upon a complaint as to the allowance 178

of interest in a sentence of the Guernsey Royal Court, that "being matter in fact we do not take upon us to control the same" (PC 2/40/188). 1 8 2 See PC 2/42/92, 327. 1 8 8 Specimen references are to the Solicitor General (APC, Dom., 1621-23, 494); to the Attorney General (ibid., 1621-23, 424); to the Attorney General and the Solicitor General (ibid., 1623-25, 78, 189); to Bird, Prerogative Court judge, and Marten, High Court of Admiralty judge (ibid., ¡623-25, 261); to Lord Zouch, Lord Carew, and the Attorney General (ibid., 1618-19, 335); to "his Majesty's councell learned" (ibid., 1618-19, 274); to Lord Carew, the King's Sergeant, and the Solicitor General (ibid., ¡615-16, 178); to Lord Carew, Secretary Calvert, and the Master of the Rolls (ibid., ¡623-25, 304). These cases in which councilors were joined with legal advisers represent a transitional step in the development of a committee system. 1 8 4 Out of eighty-seven references that have been noted for the reigns of the first two Stuarts, the Attorney General was named in twenty-five, the Solicitor General in twentythree. In eleven of these cases the Attorney General acted alone; in eight the Solicitor General acted alone. In seven references both the Attorney General and the Solicitor General were named. 1 8 5 The King's Advocate was named in at least thirty-one instances. In twenty-two of these cases he was named alone; in four with the Solicitor General; once with the Attorney and Solicitor Generals and the Vice-Chamberlain

30

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to particular m e m b e r s of the B o a r d ; this is explicable in s o m e cases on the g r o u n d that s u c h m e m b e r s w e r e g o v e r n o r s of Jersey or G u e r n s e y . 1 8 6 B u t also the L o r d P r e s i d e n t , the L o r d K e e p e r , the L o r d P r i v y Seal, the C o m p t r o l l e r , and others w e r e designated in r e f e r e n c e s . 1 8 7 A l t h o u g h in most instances the B o a r d m e m b e r s acted alone, in others they w e r e to call l a w y e r s to their a s s i s t a n c e . 1 8 8 T h e use of j u d g e s as referees became u n u s u a l . 1 8 9 A t this p e r i o d there is discernible an e m b r y o n i c c o m m i t t e e system, w h i c h operated c o n c u r r e n t l y w i t h the older reference system to cope w i t h C h a n n e l Islands m a t t e r s . 1 9 0 E a r l y in 1 6 3 2 a reference w a s m a d e to certain B o a r d m e m bers to hear c o m p l a i n t s about the administration of justice in Jersey a n d to consider a n d report corrective m e a s u r e s . 1 9 1 T h e same g r o u p w a s f u r t h e r e m p o w e r e d to hear a n d to certify its opinions to the B o a r d in all appeals f r o m that island then p e n d i n g . 1 9 2 C o m m i t t e e references w e r e also m a d e in other (PC 2 / 4 1 / 1 4 5 ) ; once with the High Court of Admiralty judge (PC 2/36/297); in another the Lord Privy Seal and the Earl of Danby were to call in the Solicitor General or the King's Advocate, if they wished (PC 2/49/399)· 186 The Earl of Danby, governor of Guernsey, was nominated in fifteen instances. He might be the sole nominee (PC 2 / 4 1 / 4 1 ) ; be joined with the Attorney General (PC 2/40/188); or be joined with another Board member (PC 2/40/484). In one instance Danby applied for the Attorney General's aid in hearing a cause In three cases Lord Jermyn, (PC 2/42/412.). the Jersey governor, was named; acting solely (PC 2 / 4 1 / 2 6 1 ) ; with Lord Wimbledon (PC 2 / 4 4 / 1 1 6 ) ; with the Lord Privy Seal (PC 2/44/421). 187 The Lord Privy Seal was named five times; members named at least once were the Lord Keeper (PC 2/40/484); the Lord President (PC 2/39/629); Lord Dorchester (ibid.)·, the Comptroller (PC 2 / 5 1 / 4 0 6 ) ; Secretary Coke (PC 2 / 4 0 / 2 0 1 ) ; the Earl of Totnes (PC 2/38/397); Lord Wimbledon (PC 2 / 4 4 / 1 1 6 ) . The Lord Privy Seal acted alone (PC 2 / 4 1 / 2 5 5 ) or jointly (see supra, n. 185, 186). The others, except for the Comptroller, acted jointly with other Board members. PC 2 / 4 1 / 1 4 5 ; cf. PC 2/49/399· 189 Several references were made to the judge of the High Court of Admiralty, joined with the Attorney General or the King's Advocate (see inter alia PC 2/36/297; PC 2/40/247). Littleton, Chief Justice of Common Pleas, was named with the King's Advocate in one reference (PC 2 / 5 1 / 2 7 7 ) .

180 In 1617 several committees were appointed, but none for Jersey or Guernsey. However, matters from these islands would probably go to the King's learned counsel as a committee for grievances in general (APC, Dom., 161617, 2 1 5 ) . The first references were in nonappellate matters. The 1627 hearing of Sir Philip de Carteret's report concerning the state and safety of Jersey was referred to the Earl of Totnes, Viscount Conway and Viscount Grandison (PC 2/36/210). In 1629-30 the hearing of a Jersey fee preccdency quarrel was referred to the Lord President, the Earl of Danby, and Viscount Dorchester (PC 2/39/629). Cf. supra, n. 185, 186, where councilors were joined with learned counsel as referees. 191 Sir Philip de Carteret, the Jersey bailiff, had presented a petition complaining of the various abuses and corruptions in Jersey judicial administration. The Lord Privy Seal, the Lord Treasurer, the Vice-Chamberlain, and Secretary Coke or any three of them were named to consider the matters complained of and to advise some fit course therein (PC 2/41/488). 192 After considering the complaints of de Carteret, the Committee was "also to heare, consider, and certifie their opinions in like manner, concerning all such appeales out of the aforesaid isle, as are now depending there" (PC 2/41/488). The Attorney General and the King's Advocate were to attend the named committee when they considered the complaints, but nothing is said as to such attendance at future appeal hearings.

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Jersey matters. 193 Upon a report from such a committee a further reference might be made to the crown law officers or other administrative officials.194 A n order was made in 1635 which established a committee to hear and determine all appeals from Jersey. 195 The establishment of this committee, however, did not prevent further references of Jersey appeals to the legal advisers. 198 T h e introduction of a committee to hear appeals thus proved premature. During the period under discussion the operation of the appellate system was impaired in several respects. In many cases parties appeared before the Board without giving adversarial notice and by false representations obtained favorable orders in their causes. 197 This would seem to be an obvious weakness in a system based to a large degree upon ex parte hearings. 198 If a letter or order were obtained by such misrepresentations or concealments, it was necessary for the injured party to appear and petition the Board for relief. The usual relief afforded was the suspension of the letter or order based upon false representations. 199 The Board might sometimes find itself abused by false allegations in complaints made to it. 200 193 See the references to the Lord Privy Seal, the Earl of Danby, the Vice-Chamberlain, Secretary Coke, and Secretary Windebank or any three of them (PC 2/43/302); to the Lord Treasurer, the Lord Privy Seal, the Earl of Dorset, the Vice-Chamberlain, Secretary Coke, and Secretary Windebank or any three or more of them (PC 2 / 4 4 / 3 6 1 ) . For terminological recognition of a Jersey committee see the mention of a report of the "Committee for the business of Jersey" (PC 2/43/368). 194 A committee report on Jersey abuses concerning revenues and government was referred to the Attorney General to call in LieutenantGovernor de Carteret and to direct and settle such order as was requisite (PC 2/44/426). There was also a reference to the Lord Treasurer in the same connecdon. 195 PC 2/44/634 (June 12, 1635). The committee consisted of the Lord Privy Seal, the Earl of Danby (governor of Guernsey), the Vice-Chamberlain (governor of Jersey), Secretary Coke and Secretary Windebank or any two of them. This committee was to call to its assistance the Attorney General, the Solicitor General, and the King's Advocate or any one thereof. 106 See Gedeon v. de Soulement (PC 2/47/96); de Carteret v. Dumaresq (PC 2/51/406). 197 Sec Auley v. Le Jeune (PC 2/38/64) ; Blanche v. Quitteville (PC 2/39/403, 448: PC 2/40/247, 376); Durell v. Scale (PC

2/39/684); Fiot v. Fautrat (PC 2/45/369; PC 2/46/428); Neale v. Messurier (PC 2/49/298). In Auley v. Le Jeune respondent falsely represented that appellant had not entered his appeal within the time limited. In Blanche v. Quitteville appellant obtained a favorable report ex parte without acquainting the referees with the former proceedings in the cause. In Durell v. Scale appellant misrepresented that his attorney was mad. In Neale v. Messurier appellant concealed earlier proceedings in the cause. In the closely related field of complaints see the Blanche-Gardiner dispute (PC 2/40/247), the Hue-Grossier dispute (PC 2/40/543), the Roberts-de Lisle-Priaulx dispute (PC 2/42/92). 108 But note that in Blanche v. Quitteville (supra, n. 197) and Neale v. Messurier (supra, n. 197) the orders were based on hearings before referees, not upon ex parte considerations by the Board. The danger of ex parte proceedings was guarded against to some degree by ordering the adverse party, if he had any objections, to show cause within a limited period (APC, Dom., 1626, 18). 199 An oath might be used to determine the truth of ex parte allegations where a suspending letter was sought (Auley v. Le Jeune, supra, η. 197). Or referees might be appointed to examine affidavits and take testimony (Durell v. Seale, supra, n. 197). - o u Sec PC 2/40/86, 543.

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The Council's authority was also circumvented by parties making application to the King and procuring Commissions of Review under the Great Seal in causes in which the Board had acted. Former proceedings were concealed, and thus the terms of the Commission inclined to be contrary to former orders issued in the cause by the Board. 201 Apparently the Board, upon discovery of the deception, was forced to bring it to the attention of the King and obtain a supersedeas of the Commission of Review. The false informant might be committed to prison. 202 In 1627 abuse of doleance procedure by Guernsey litigants was brought to the attention of the Board. 203 A previous attempt made by local ordinance in 1623 to remedy the abuse had apparently been unsuccessful.204 Therefore, the Council enjoined due observance of the June 9, 1605, Order in Council and ordered that no doleance be allowed without security given as in other appeals. Thereafter no manner of appeal, whether by doleance or otherwise, was to be made without security of ^ 1 0 given by complainant to be forfeited to the island poor in case of failure in his appeal of doleance. N o other warrants might be served in these causes but those issued immediately by the Board. 205 In 1635 the Privy Council arrived at the opinion that too many appeals were being taken from Jersey for mere purposes of delay. 206 T o rectify this abuse a £20 201

sterling appealable minimum was laid down; also, all appeals were

Salomon Blundell, after several sentences given in Jersey and affirmed on appeal in a suit with Robert Durel, by misrepresentations and concealment of the former proceedings in the cause obtained from the King a Commission of Review or Relief under the Great Seal of England directed to certain commissioners of Blundell's choice. These commissioners proceeded to hearing, disregarded all earlier proceedings, and reversed the former sentences. The King, upon being acquainted with this course, considered the consequence to island justice and to the authority of the Council Table, whose sentences demanded more respect from his subjects, and granted a supersedeas revoking the Commission and the proceedings had thereunder (APC, Dom., 1613-14, 1 1 4 ) . Thomas Marchant, the elder, concealing the former proceedings had in the cause, obtained from the King a commission under the Great Seal to Governor Peyton of Jersey et al. to hear and end a suit with Thomas Marchant, the younger. But Peyton was ordered by the Board not to alter any settlement made in the cause, notwithstanding the commission surreptitiously obtained (ibid., 1616-17, 326; ibid., 1618-19, 51)· 202 See ibid., 1613-14, 114.

203

The Guernsey inhabitants complained that the June 9, 1605, Order in Council (see supra, p. 25) was being violated by litigious persons, under the name of doleance, bringing over their parties and suits by warrants of divers persons without giving security and using such legal and accustomed forms as were used in other appeals (ibid., 162J, 370). 204 ι Recueil d'ordonnance1 de la cour royale de ¡'¡sie de Guernesey (ed. R. Macculloch, 1852), 146-47. 205 APC, Dom., ¡627, 3 7 0 - 7 1 ; Safford and Wheeler, op. cit., 250-51. For later violation of this regulation see PC 2/40/245; PC 2/45/ 396-97. 2oe PC 2/44/634. This abuse was peculiarly limited to Jersey. All seventeen appeals previously entered in the Council register for the reign of Charles I and abandoned were from Jersey. Of the thirteen appeals entered and abandoned during the reign of the first Stuart, twelve were from Jersey. Of course, respondent could always petition that the appeal be declared void, after the three month period limited for prosecution hnd expired; see Aulcy v. Le Jeune (APC, Dom., 1627, 396); Le Breton v. Bocquerell (PC 2/44/422).

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33

ordered Co be prosecuted between the beginning of Easter T e r m a n d the e n d of M i d s u m m e r T e r m . Provision w a s also m a d e f o r a w a r d of damages and infliction of penalties for failure to prosecute w i t h i n the time limited. 2 0 7 T h i s action is worthy of note, because only a f e w years earlier there had been c o m plaint that appeals f r o m Jersey were being prevented by the island judiciary. 2 0 8 Several attempts were made to appeal in cases w h e r e an appeal would not lie, notably in the case of criminal causes in G u e r n s e y . 2 0 9 A l t h o u g h these attempts were unsuccessful, the Board indicated that the nonavailability of an appeal w o u l d not deprive an aggrieved party of some other f o r m of relief. 2 1 0 T h e Council w a s further irritated because of the flouting of its authority by the islanders. O n e aspect of this contempt is seen in the difficulty encountered by the Board in enforcing its orders within the i s l a n d s . 2 1 1 In an extreme case a 207

PC 2/44/634-35. It was also ordered that the governor or his deputy be present at all sentences in any matter which concerned the royal interest or prerogative, and that the King's ministers might appeal wherein the King was concerned; cf. 3 Le Geyt, op. cit., 319. 208 Complaint was made that appeals were generally prevented in cases where they should have been permitted, whereby the Jersey court arrogated to itself the authority of a supreme tribunal. This was termed by the Board so far beyond the limits of the court's commission and the laws and customs that it might have been taken notice of by another method than admonition, "the rather considering the care that hath been alwaies taken here upon appeales to countenance and mayntaine the justice of that court." The court was thereupon directed to give the subjects the customary liberty of appealing to the Privy Council (APC, Dom., 1619-21, 107). 208 A petition was presented from the Royal Court complaining against John Blanche for appealing from a March 10, 1628/9, sentence in a criminal matter, claiming that by custom no appeal should be allowed. The Board answered that if the allegations were true, the sentence was to stand and be in force, and the court was to proceed to sentence in another cause of the same nature without admitting an appeal (PC 2/39/290). In Neale v. Messurier (PC 2/46/49) an attempted appeal in a criminal cause was disallowed, on the basis of the restraining October, 1580, Order in Council. But the Solicitor General, to whom the matter was referred, reported that Messurier had opposed the allowance of the appeal on the ground of some former order to bar appeals in criminal causes, although an

appeal was admitted in a recent esse produced by Neale as precedent. 210 PC 2/43/567. The Board stated "for if it should fall out that a man cannot appeal here upon a criminal cause as is pretended, yet there is then the greater reason why the proceedings should be full and if such apparent injustice were indeed done as is pretended then both the civil laws and all reason willeth that he should have recourse to hit soveraigne by way of doleance which is the only remedy left, where appeales by lawe are taken away." 211 See Le Geyt v. Messervy (PC 2/38/404; PC 2/39/135) where the recalcitrant attitude of Messervy seems to have influenced the Board in deciding that he should be proceeded against in the Court of Star Chamber, and Blanche v. Gosselin (PC 2/39/518) where the Board, finding the dilatory conduct of the Royal Court strange and offended that conciliar directions were neglected, ordered that such directions be put into force. See also PC 2/41/389 (dispute between one Roberts and Peter de Lisle and Thomasina Priaulx); PC 2/42/181 (Royal Court of Guernsey failed fully to execute certificate of Reeves, the King's Advocate). It was necessary peremptorily to order the Jersey Royal Court to obey directions made upon the doleance of John Le Vavasseur. Apparendy some jurats questioned the order and the Board reheard the whole matter and was confirmed in its opinion. But it was felt that such presumption from the islanders should not be tolerated in futuro (PC 2/41/546). The Jersey Royal Court also refused to enroll a conciliar letter in one cause where the letter was slighdy damaged (APC. Dom., 1616-17, 239).

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JURISDICTION

conciliar messenger m i g h t be dispatched to the islands to enforce an o r d e r . 2 1 2 T h e B o a r d also m e t w i t h recalcitrance a n d i n d i f f e r e n c e w h e n attempts were m a d e to c o m p e l parties to appear before it pared.

213

or to appear properly pre-

214

I n its m a i n outlines, procedure d u r i n g the first Stuart period w a s similar to earlier procedure, but traces of f o r m a l i z a t i o n m a d e their appearance. A s to the early steps upon appeal, little a d v a n c e w a s m a d e , although it d i d become exceptional f o r the appeal not to be entered in the P r i v y C o u n c i l r e g i s t e r . 2 1 5 B u t it w a s still rare to h a v e the appearance of the respondent entered t h e r e i n . 2 1 6 T h e C o u n c i l e m p l o y e d some species of s u m m o n s or notice in certain appeals, but little i n f o r m a t i o n is available as to the extent of its use or the m a n n e r of its issuance.217 212

Upon one Le Vavasseur's informing the Board that orders issued in his behalf had not been obeyed, an open warrant was directed to Francis Taylor, conciliar messenger, to go to Jersey and see the orders obeyed; anyone blocking execution was to be taken into custody and brought before the Board to answer the contempt (PC 2/43/548). 213 See PC 2/42/2·}·}. Contradictory orders might result from the ex parte nature of many hearings; see PC 2/43/174. PC 2/38/397. 218 There is no evidence that a summons was issued automatically upon entry of the appeal. It was sdii usual to recite that the appeal was entered in the Privy Council Register for the indemnity of the appellant (Dumaresq v. de Carteret, APC, Dom., /613-14, 567), and/ or to enjoin prosecution of the appeal (Baillehache v. Baillehache, ibid., 408). As to the time in which an appeal could be entered, note the claim advanced by Peter Beauvoir of Guernsey of a year and a day in which to enter an appeal after sentence had been given (PC 2/40/90); but cf. the dismissal of Beauvoir's appeal three days earlier for nonprosecution (PC 2/40/89). In Messervy v. Dumaresq (PC 2/40/378), an appeal was entered late, but affidavit was made that the delay was not caused by appellant's laches. The appeal was therefore ordered to stand good until sufficient objection was made. 218 Only three cases occurred during the James I period. Baillehache v. Baillehache (APC, Dom., 1613-14, 409) ; de Jersey v. Brehault (ibid., 1618-19, 209) ; Briard v. Le Marchant (ibid., 224). Appearance was stated to be entered in the register for respondent's indemnity, and respondent was enjoined to

attend until dismissal or until the appeal was determined. A few more instances are found during the reign of Charles I. See Fiot v. Le Brocq (PC 2/43/634); de Beauvoir v. Priaulx (PC 2 / 4 5 / 3 4 1 ) ; Briard v. Bonamy (PC 2/46/235). 217 In Rex v. Dumaresq (APC, Dom, 161921, 280) it was recited that the respondents "havinge ben (accordinge to the lawe and custome in such cases required) lawfully and sufficiently warned to appeare here to mayntaine their pretended tythes and the said sentence and interlocutory orders, did faile to appeare at all therein." In de Rues v. Langlois (ibid., 1621-23, 3 ' 9 ) 't was related that the "said Langlois having neglected to come hither upon summons from the provost there according to the custome of warning persons from thence, a speciali warrant was granted from hence to warne him to appear here, wherein he hath altogether fayled, notwithstanding that the appealant hath appeared with a certificate testifying the signification thereof made unto the said Langlois the third day of November last" and that appellant be given judgment by default. In Messervy v. de Carteret (PC 2 / 5 1 / 2 1 6 ) a conciliar letter to the Royal Court stated that respondent had failed to appear in due time to answer, although it had been certified under the hand of the provost of the parish that respondent had sufficient notice of the appeal. The Council being ignorant whether respondent had just cause for non-appearance, the Royal Court was to give a second summons to respondent to appear and answer within forty days. In Briard v. Bonamy (PC 2/46/235) respondent was summoned by the King's Serjeant in Guernsey to enter an appearance within forty

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The evidence indicates that hearings were not of a judicial, appellate nature based upon a record made in the courts below. In one case a cause was referred back to the islands because of the expense involved in having the parties come to England and produce their evidence. 218 In another case the Board was of the opinion that a cause could be more conveniently examined in Jersey. 219 Or the Council sometimes made an order for the taking of evidence in the islands and the return thereof to the Board. 220 Upon appeal, further evidence was stated to be admissible, 221 but it was also stated that such new evidence could not serve to justify a sentence where no evidence was produced below. 222 If a party was prevented from attending a hearing and presenting his evidence, a rehearing might be granted. 228 days. For further mention of a forty day summons see de Rues v. Hues (PC 2 / 4 2 / 3 2 4 ) . The crown law officers as referees seem also to have exercised a summoning power; see In re Blanche (APC, Dom., 1623-25, 84). 218 Maret v. de Carteret (PC 2 / 4 0 / 1 4 6 ) . The appellant prayed directions in the cause, since die amount involved was small and since it would be expensive for all sides to come over and produce their evidence as in the ordinary case of an appeal. The Board found the cheapest and most expeditious settlement was to order the Royal Court to see the matter referred to arbitrators selected by the parties; otherwise, the bailiff as referee was to examine on oath the witnesses and proof necessary to be produced on both sides and then to give a final order so as to free the Council from further complaint. 219 Le Febure v. Hamilton (PC 2 / 4 8 / 1 9 2 ) . The King's Advocate found the cause very intricate and fit to be examined in the place itself, the burden of complaint being that not all of appellant's evidence was heard below. The Lieutenant-Governor and certain jurats were to re-examine the cause upon proofs and to compose it if possible, or otherwise to return the depositions taken to the Board and appoint a time for the parties to appear thereat. 220 Neale v. Messurier (PC 2/48/620). Appellant did not possess copies of the acts of the court in the cause which allegedly had been denied him, nor could he afford to bring his witnesses over. Therefore, certain Guernsey officials were ordered to examine all the witnesses produced by appellant and return the examinations to the Board; the greffier was to attend these officials with all the acts of the court and provide petitioner with such copies

as he desired. Sec also Oliver v. Bisson (PC 2/48/486), where upon appellant's petition the Lieutenant-Governor and two others were directed to view such evidence and examine such witnesses as should be produced before them by both parties for the better discovery of the truth of the cause, then to certify to the Lords the true state thereof together with their opinions. In de Carteret v. Daverne, (APC, Dom., 1618-19, 274) learned counsel were of the opinion that a commission should issue to examine evidence produced by appellant in the island, since some of his witnesses were improperly excluded below; evidence so taken was to be returned with the commission's opinions thereon. 221 In the dispute between John Hérault and John Durell the aggrieved party was to be allowed an appeal from the sentence below tu the Board, "where further proofs may be made and justice done with more speed, and expedition than hath bin in that Isle where both parties complain of delayes" (PC 2/39/281). 222 In Fiot v. Le Brocq the report of the King's Advocate stated that the sentence appealed from was grounded solely on the allegations of the respondent; that no evidence or confession supported the sentence; that both parties offered new evidence before him, which might ground a future sentence, but could in no way serve to justify or confirm the former sentence. It was therefore advised that the sentence be declared void which was ordered accordingly (PC 2 / 4 4 / 1 1 0 ) . 223 In de Carteret v. Gourfalour (APC, Dom.. 1627, 434) appellant was prevented from attending the hearing because of attendance upon crown service in Jersey. Upon petition for rehearing before the Lords or such others

3

6

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A n o t h e r indication of the f u n c t i o n a l attitude of the B o a r d can be seen in cases i n v o l v i n g exhaustion of remedies b e l o w . In one case the C o u n c i l r e f u s e d to accept jurisdiction w h e r e definitive sentence had not been g i v e n b e l o w , 2 2 4 but in other cases it s h o w e d n o reticence in issuing orders in a cause still p e n d i n g before the inferior c o u r t . 2 2 5 It even sometimes intervened in a suit below a n d h a d the proceedings c o n t i n u e d before a differently constituted b o d y . 2 2 6 O n the other h a n d , it occasionally ordered the l o w e r court to proceed to sentence, on the theory that the a g g r i e v e d party could appeal as u s u a l . 2 2 7 Jurisdiction in an undecided cause m i g h t be conferred upon the B o a r d by an island court.228 A s the above instances indicate, the jurisdictional v i e w s of the C o u n c i l w e r e inconsistent. Statements w e r e m a d e that the jurisdiction of the B o a r d limited to appeals or doleances

was

in causes w h i c h had been before the insular

c o u r t s . 2 2 9 I n practice, jurisdiction w a s accepted in complaints w h e n there h a d been no judicial proceedings in the i s l a n d s . 2 3 0 In addition, there w a s the less f o r c e f u l intervention of the C o u n c i l in island affairs by means of precatory as they should appoint, Judge Marten of the High Court of Admiralty was ordered to be joined with the King's Advocate to rehear the cause and report to the Board. In Dumaresq v. de Carteret (ibid., ¡613-16, 254) respondent, after a conciliar letter issued in the cause, informed the Board that by reason of royal service in Jersey he could not attend a previous hearing in England. The cause was referred to the island judiciary for re-examination with orders to forbear executing the earlier letter. 224 In a dispute between John Hérault and John Durell the King's Advocate was of the opinion that the cause should not be heard at the Board until definitive sentence was given in Jersey. The Board thereupon admonished the Royal Court not to receive any frivolous allegations, but did not restrain it from hearing any new matter conducive to reaching the truth; the aggrieved party was to be allowed an appeal, if desired ( PC 2 / 3 9 / 2 8 1 ) . For earlier proceedings in the cause see PC 2/38/501; see also APC, Dom., 1626, 433. 225 Upon the petition of one Peter Clungeon it was ordered that the Guernsey Royal Court proceed to sentence in a cause with one Dobree without requiring production of an account book which was in England, or else that Dobree or his agent come to England to view the book (PC 2/46/47). Later, upon Dobree's petition that there might be a larger sum due him upon his account with Clungeon than was

sued for, it was ordered that the Royal Court, before giving sentence, examine the accounts and cause them to be examined and audited by two merchants or attorneys, and afterwards settle such order as was agreeable to justice (PC 2/49/408). 229 See PC 2/43/600. 2 " PC 2/51/75™*PC 2/40/188. 229 One Messervy complained that his tutor, John de Carteret, had refused to make an accounting and petitioned that he be compelled to do so. The King's Advocate advised that it was improper for the Board to make any order therein, since the matter had never depended in the Jersey courts and therefore was not liable to cognizance of the Board either by way of appeal or of dolcance. The matter could only be recommended to the court below for a speedy hearing (PC 2/48/ 155). Simon Eflart, of Guernsey, complained of some "hard dealings" used toward his father by Thomas de Lisle and prayed relief. "Although the case seemes to deserve commiseration (if the information be true), nevertheless because this Board doth not take notice of suites in law concerning that isle but onely in cases where there is an appeale, we have not thought fit to order any thing in favour of the peticioner but to referre him back unto the ordinarie course of justice in that isle" (APC, Dom., 1619-21, 296). 230 See APC, Dom., ¡623-25, 304.

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letters. These conciliar instruments issued in fewer numbers than in Elizabethan times; most of them concerned allegations of hard usage or inability to secure justice. 2 3 1 In addition to correcting judgments of the island courts, the Board acted in an administrative capacity as regards these courts. It settled disputes where conflicting claims were made to judicial appointments 2 3 2 or judicial precedency. 233 It reviewed the suspension of a jurat, 2 3 4 ordered the election of a new jurat to replace a perverse incumbent, 235 and ordered an investigation into the actions of a complained-of jurat. 23 ® It also acted to prevent delays in the operation of the judicial machinery below. 2 3 7 That the Board did not look upon complaints made to it with an unfavorable eye is indicated in the costs awarded successful complainants. T h e Board might itself assess such costs upon report of referees 2 3 8 or might give general directions to the court below for the allowance of reasonable costs. 239 Some of the complaints heard by the Board entailed a great number of references and a very tedious course. 240 In these causes the habitual petitioner might be discouraged by the necessity of giving security in the islands before a petition could be safely presented to the Board. 2 4 1 T h e rising storm of domestic commotion during the later years of the reign of Charles precluded conciliar occupation with appeals or any other matters from the Channel Islands. Entries relating thereto in the Privy Council register after 1640 arc scarce. 242 The operation of 16 Charles I, c. 10, would account for some diminution, in that complaints were barred thereby. A s has been said previously and as is borne out by conciliar entries, the act was not conceived as prohibiting appeals to the Council from Jersey and Guernsey. 2 4 3 Despite the loss of records for the initial years of the early Stuart period and the distractions of the closing years, certain features stand out. T h e machinery for handling appeals remained similar to the earlier period, but there was a 231 Sec APC, Dom., 1613-14, 453 (hard usage); PC 2/39/425 (undue practices); PC 2/42/62 (deprivation of property); APC, Dom., 1611-23, 235 (inability to prosecute cause in ordinary course of justice) ; PC 2/39/ 423 (inability to secure performance of contract to marry); PC 2/46/124; PC 2/48/143 (inability to secure justice locally); PC 2/43/ 437; PC 2/44/367; PC 2/46/294, 295 (hard usages of creditors). 232 See APC, Dom., 1613-14, 621; ibid., 1615-16, 178, 287. 233 See ibid., 1627, 450; PC 2/39/33. 234 APC, Dom., 1621-23, 351. 235 Ibid., 1623-25, 355. 236 Ibid., 1618-19, 457; ibid., 1619-21, 354. 237 See ibid., 1619-21, 63, 3 7 1 ; ibid., 16212 3. 15·

238

See PC 2/39/631; PC 2/40/246, 543; PC 2/42/181; PC 2/43/436; PC 2/44/41. » · See PC 2/38/65; PC 2/39/665; PC 2/40/ 245240

The extended controversy between one Roberts and Peter de Lisle and Thomas ina Priaulx can be traced through PC 2/41/60, 389, 476; PC 2/42/55, 92, 233, 327, 338, 401, 527· 241

See PC 2/50/110; PC 2/52/568. In 1644 the King in Council at Christ Church, Oxford, admitted an appeal after the usual time for entry had lapsed (PC 2/53/ 223). 243 But cf. CSP, Dom., 1641-43, 143-44. where some attempt was made to question the authority of the Council Board. 242

3

8

RISE OF

JURISDICTION

reallocation of e m p h a s i s . M o r e cases w e r e determined by the B o a r d itself a n d b y the legal a d v i s e r s ; f e w e r cases w e r e relegated to the decision of insular c o m missioners. C o n c i l i a r exercise of a determinative, judicial function b e c a m e m o r e f r e q u e n t — t h e impression that the B o a r d functioned largely as a c l e a r i n g h o u s e is w e a k e r . A n e m b r y o n i c committee system f o r C h a n n e l Islands matters a p p e a r e d , but it a s s u m e d n o i m p o r t a n t position in conciliar practice. E f f i c i e n c y a n d d i g n i t y of operation w e r e largely lacking—misrepresentations, evasions of conciliar orders, a n d insular recalcitrance constituted pitfalls for the u n w a r y applicant to the C o u n c i l T a b l e . R e g u l a t i o n s g o v e r n i n g appeals f r o m the isles w e r e s u p p l e m e n t e d , but f e w p r o c e d u r a l advances e m e r g e d in the practice of the period. THE INTERREGNUM D u r i n g the I n t e r r e g n u m a c u r i o u s interlude in the history of conciliar r e v i e w is to be f o u n d . A t o n e period the P r i v y C o u n c i l attendant upon C h a r l e s II i n his continental peregrinations undertook to hear and determine appeals. T h e s e appeals w e r e f r o m the Jersey R o y a l C o u r t and w e r e heard w h i l e C h a r l e s w a s at St. G e r m a i n ( F r a n c e ) a n d in J e r s e y . 2 4 4 T h e procedure consisted of a p r e l i m i n a r y petition f o r leave to appeal, f o l l o w e d by presentation of the appeal a n d a h e a r i n g t h e r e o n . 2 4 5 T h e scanty extant information indicates that the available councilors e n d e a v o r e d to a f f o r d the parties an adequate h e a r i n g . 2 4 8 244 Charles II was present in Jersey from September 17, 1649, to February 23, 1649/50 (2 Hoskins, Charles the Second in the Channel Itlands [1854], 310, 3 7 5 - 7 7 ) . Since Guernsey favored the Parliamentary cause (ibid., 3 1 1 1 2 ) it is doubtful whether Charles ever visited that isle during his exile ( 1 ibid., xi). The hearings held by the Privy Council outside the realm occur in the period from August 7, 1649, to February 1, 1649/50. These appeals may have been brought from political considerations to allow Charles and his Council to exercise regal functions, they may illustrate the litigious quality of the islanders, or they may represent an honest need for appellate review. At any rate, they served to preserve the appellate tradition. Meetings were held at St. Germain (probably at the Lord Keeper's lodgings; see PC 2 / 5 4 / 1 8 ) , St. Hillary (probably at the Lord Treasurer's lodgings; see PC 2 / 5 4 / 1 0 ) , and at Castle Elizabeth, the royal residence (see 2 Hoskins, op. cit., 3 1 7 ) . Persons attending one or more of these meetings were the Lord Keeper, the Lord Treasurer, Lord Hopson, the Chancellor of the Exchequer, Lord Culpepper, Secretary Long, Sir

Edward Nicholas. Attendance varied from three (PC 2/54/18) to seven (PC 2 / 5 4 / 1 7 ) ; the latter meeting was the only one attended by the King and the Duke of York. 245 See de Carteret v. Le Febure (PC 2 / 5 4 / 6-8); Blundell v. Roualt (PC 2/54/18). 246 In Blundell v. Roualt (supra, n. 245) before affirming a sentence of the Royal Court, the sentence and petition of appeal was read, the proofs formerly produced in the cause were examined and maturely considered, and counsel were heard fully. In Batterill v. Bisson (PC 2/54/20) a long and full hearing of both sides was held before sentence was reversed. Even where the appellant failed to prosecute an appeal, and the respondent petitioned for affirmance of the sentence below, the councilors considered the petition and sentence below with the evidence and proceedings therein, before affirming the sentence of the Royal Court (de Carteret v. Le Febure, PC 2 / 5 4 / 10). In the same case the King, although satisfied with the judgment on appeal, said that he would rehear the appeal himself in Council. However, the hearing was later referred to Council members (PC 2/54/17).

RISE OF JURISDICTION

39

Conciliar indecisión might be resolved by reference of a cause to the bailiff and jurats to rehear. 2 4 7 Because of the prevalent political disturbances, procedural requirements were waived to enable litigants to be heard on the merits of their causes. 2 4 8 T h i s brief interlude had no great institutional importance, but for Jersey, at least, it did preserve the appeal tradition. U n d e r the Commonwealth use was made of various committees by the Councils of State to expedite matters relating to the Channel Islands. 2 4 9 D u r ing this interval, however, no appeals appear to have been made from the islands. 2 8 0 A f t e r the Protectorate w a s established, appeals once again came from the islands to the Privy C o u n c i l . 2 5 1 In October, 1655, a committee was established to hear all Guernsey appeals. 2 5 2 In July, 1656, the identical group was authorized to treat Jersey appeals in the same m a n n e r . 2 5 3 In A p r i l , 1658, 247

See de Carteret v. Du Parq (PC 2/54/22). Failure to prosecute the appeal within the usual time limited was waived in Blundell v. Roualt (supra, n. 245); Batterill v. Bisson (supra, n. 245); de Carteret v. Du Parq (PC 2/54/22). Appellant was allowed a longer period than the usual forty days to enter his appeal in de Carteret v. Le Febure (PC 1/54/ to). 2,9 There were eight councils of state previous to the Protectorate (1 Turner, op cit., 245). For early Guernsey committees see CSP, Dom., 1649-50, 383; ibid., 1650, 8. Under the third council of state there existed a Jersey committee (CSP, Dom., 1651, 205) and one for Guernsey (ibid., 450). The fourth council referred some Jersey petitions to the Committee for Trade and Foreign Plantations (CSP, Dom., 1651-52, 502). The fifth and sixth councils utilized the Scottish and Irish committee for Channel Islands references (CSP, Dom., 1652-53, 256, 341, 345). - 5 0 Probably because recent disturbances in the islands had left the judicial systems disorganized; see CSP, Dom., 1651-52, 502; ibid., 1652-53, 116. There is also evident a tendency to avoid complaint jurisdiction; see ibid., 1651, 200; ibid., 1651-52, 149; ibid., 1652-53, 438; ibid., 1653-54, 203. But in a February, 1651/2, account of the civil government of Jersey made by Bailiff Lempriere to Parliament appeals to the King in Council were included (2 Hoskins, op. cit., 397-98). A 1652 pamphlet treats of the appeal to the King in Council as an existent institution. "Of the Court of Heritage, the last part of the Court of Cattell, and Extraordinary, appeales might be made to the King and Counsell; for moveables, not for under the value of twenty 248

pounds sterling, but for matter of inheritance, there is no limitation, appeales must be made immediately after sentence given, yet sedente curia, and two sufficient sureties given within a sennight for the prosecution of them within the time limited which is, the said appeales must be entered in the booke of Counsell causes within three moneths, and prosecuted within one yeare; and in case the appealant doe not reverse the sentence, and procure an order from the counsell of mal jugé, bien appelle, then he forfeits twenty crownes to the bailly" (Stocall, Freedome; or, The Description of the Excellent Civili Government of the ¡slami of Jersey [London, 1652], 5-6). 251 The conciliar body under the Protectorate was known as the Protector's Council or the Privy Council. 252 Governor Bingham petitioned the Protector and Council that the inhabitants had always been allowed appeals from the island courts to the King in Council, that some inhabitants had long attended at great charge on appeals in the hands of Jessop, clerk to the Council, and prayed a hearing. It was ordered in Council that Whitelocke and Widdrington, Treasury Commissioners, the Lord Chief Baron of the Exchequer, the Recorder of London, and John Sadler and Nathaniel Bacon, Masters of Requests, receive all appeals of the inhabitants of Guernsey, hear the parties, inquire into the truth of the cases, and report to the Council, with their opinions (CSP, Dom., 1655, 362-63). Quaere the import of the Act establishing the commonwealth (2 Firth and Rait, Acts and Ordinances of the Interregnum, 122) upon appeals. 253 CSP, Dom., 1656-57, 19. An earlier petition of appeal from Jersey was not acted upon,

40

RISE OF

a f u r t h e r a p p o i n t m e n t of

JURISDICTION

referees f o r Jersey

and

Guernsey

appeals

was

m a d e . 2 5 4 U n d e r the Protector R i c h a r d an a p p o i n t m e n t w a s m a d e of C o m missioners of A p p e a l s f o r Jersey a n d G u e r n s e y . 2 5 5 A line w a s d r a w n b e t w e e n appellate jurisdiction a n d other C h a n n e l Islands matters, w h i c h w e r e handled in a different f a s h i o n . 2 5 0 T h e n e e d f o r l a w y e r s to cope w i t h appeals w a s obviously r e c o g n i z e d by the P r i v y C o u n c i l . P r o c e d u r e u p o n appeal w a s by petition, the first step b e i n g the presentation of the petition of appeal to the P r i v y C o u n c i l . T h e petition w a s then referred to the C o m m i t t e e f o r P e t i t i o n s . 2 5 7 I n some cases the petition then seems to h a v e been referred by that c o m m i t t e e to the designated appeal referees. U p o n receipt of the report of the referees, the C o m m i t t e e in turn reported to the C o u n c i l ; if the C o u n c i l a p p r o v e d the report, an order w a s issued t h e r e o n . 2 5 8 I n other cases the petition of appeal w a s reported b a c k to the P r i v y C o u n c i l b y the C o m m i t t e e as fit f o r reference to the appeal referees. T h e

Council

w o u l d thereupon send the petitions to the referees to report back to the C o u n c i l . 2 5 9 I n one case the Protector O l i v e r a n d his C o u n c i l a s s u m e d the h e a r i n g of a n a p p e a l . 2 6 0 A n o t h e r procedural possibility w a s for a cause to be returned to the islands f o r settlement by referees there

201

or f o r f u r t h e r h e a r i n g

by the local judiciary before the referees decided the a p p e a l . 2 6 2 B u t any apperhaps because of lack of jurisdiction (ibid., 1655-56, 149). 254 Channel Islands petitions concerning appeals made to the Protector from judgments given in the island courts were to be referred to Whitelocke and Widdrington, Treasury Commissioners, Lislebone Long, the Recorder, and John Sadler and Nathaniel Bacon, Masters of Requests, who were to receive all such appeals depending before the Council, learn the truth in the cases, and report thereon (•bid., 1657-58, 372). 255 Ibid., 1658-59, 306. 258 Ad hoc references were made (ibid., 1655, 37, 2 3 1 , 292, 305, 399). Composition with delinquents in Jersey occupied the attention of the Council at this time; see Green, ibid., xv-xvi. References were also made to the Scottish and Irish committees (ibid., 1653-54, 401), to the Committee on the petition of the burgesses of Westminster (ibid., 1654, 65), to the Scottish Committee (ibid., 1657-58, 363). 257 For the order appointing the Committee of Petitions see ibid., 1655-56, 2. 258 See the handling of respondent's petition in Gibault v. Le Tillier (ibid., 1655-56, 1 3 4 ) ; the recommittal to the Committee of the Patron and Anley petitions ( ibid., 144); the

petition of Fautart for an appeal from a Guernsey judgment (ibid., 8 1 ) . 259 ibid., 1657-58, 372. 280 Wolsley, Sydenham, Strickland, Jones, and Lisle were ordered by the Council to see how the Guernsey appeal of Fautart v. Symons stood and report (ibid., 1657-58, 84). Upon their report it was ordered that the case be heard before the Council (ibid., 100). Upon a hearing and full debate of all the evidence, the Protector and Council saw no cause to differ from the judgment below (ibid., 107). 281 In de Carteret v. Dumaresq (ibid., ¡65758, 1 1 9 ) Philip Le Geyt and five other Jerseymen named by the parties were to examine and determine all differences between the parties. In Dumaresq v. Pitton (ibid., 120) by consent the difference was referred to Governor Guibon of Jersey and five others who were to examine witnesses, give judgment and award costs, their sentence to be final. 282 In Fautart v. Symons (ibid., 1655-56, 188) the referees reported that they could not decide the matter without a trial at law; thereupon, a copy of the report was sent to the Guernsey Royal Court to examine witnesses on oath, test the truth of the matter, and report thereon. The return made was

R I S E OF JURISDICTION

41

praisal of the relative value of this short-lived system would be based on insufficient data concerning a small number of appeals. EARLY CONCILIAR CONTROL OF COLONIAL JUSTICE

Having thus described the development of the Privy Council's appellate jurisdiction for the Channel Islands before the Restoration, we shall now examine conciliar control of justice in the English colonies. The extensive authority over the administration of justice in the various colonies that was exercised by the Privy Council in the eighteenth century was the result of a slow accretive process. The early agencies of English exploration and colonization were individuals and companies operating under patents granted by the King. These patents usually conferred a large degree of autonomy, including broad judicial powers.2®3 The problem, therefore, of settling a judicial system in such plantations and the supervision of the administration of justice therein was primarily of private, not public, concern. When governing bodies possessed of judicial powers were established in overseas plantations, it was to be expected that relief from judicial acts of these overseas bodies would be sought by application to the directing body of a company or individual patentee in England. This procedure merely followed the precedent of at least one of the older great chartered trading companies 264 —a group from which the exploration and colonization companies borrowed liberally in charter forms and in methods of organization and operation.285 Even when the crown retained some degree of control, as by the instrumentality of a Council of Virginia under the 1606 Virginia patent, no endeavor was made to establish an appellate system; the 1606 royal instructions to the colonial presidents and councils provided only that judicial proceedings should be summary and verbal, that the judgment or sentence alone be recorded.266 Obviously any effective appeal from such proceedings would have been difficult. Failure to reserve an appeal to the King was no startling omission from the early charters to colonization companies. In the early seventeenth century to a great extent the entire practice of colonial grants was based on Chancery referred to the Committee on Appeals from Guernsey to report (ibid., 7656-57, 100). See also Anley v. Le Febvre (ibid., 3 3 1 ) where a certificate returned by the governor and the bailiff of Guernsey was confirmed. 288 See inter alia 1 Thorpe, Federal and State Constitutions (1909), 51 (Gilbert), 55 (Raleigh) ; 3 ibid., 1680 (Maryland), 1833 (New England), 1858 (Mass.); 7 ibid., 3801 (Virginia); 1 Lefroy, Memorials of the Bermudas (1877), 95.

264

Acts and Ordinances of the Eastland Company ( 1 1 Camden Soc. Pub. [3d ser.], 1906; ed. M. Sellers), 52-53. 266 ι Records of the Virginia Company of London (ed. S. M. Kingsbury, 1906), 12; Goebcl and Naughton, Law Enforcement in Colonial New York. (1944), c. i, n. 10. 268 ι Brown, Genesis of the United States ( ' 8 9 7 ) . 7 0 - 7 1 · The 1606 patent made no mention of judicial powers (7 Thorpe, op. cit., 3783)·

42

R I S E OF JURISDICTION

traditions that had developed about domestic corporations which were already under conciliar control by act of Parliament. It probably did not even occur to the granting authorities that a patent appeal reservation was necessary. If it was conceived that operation in dominions outside the realm distinguished colonization patents from the domestic variety, there was probably a consciousness that under feudal theory the crown retained supervisory jurisdiction. For the relation of the crown to the Channel Islands and the Isle of Man was still regarded as essentially feudal in nature. Further, reservation of any appeal to the King was not a customary element in the immediate precursor of the colonization patent, the trading company charters, although there was de facto recognition of this right.2®7 The colonization companies operated under conditions vastly different from those usual to the trading companies; to a great extent this was not recognized by the granting authorities in their patents.268 But some capital might be made of the clause frequently inserted that conferred upon English settler-inhabitants the rights of English subjects.289 Appellate review was a judicial luxury that few litigants in infant plantations could afford, separated as they were by miles of ocean from the appellate body, and hampered by lack of adequate transportation facilities. Moreover, societies in the process of formation are not forcing grounds of intricate legal questions. The ordinary subject of complaint will be about arbitrary action by executive-judicial governing bodies, usually a question of fact. Since the earliest charters reserved no appeals to the crown, the normal locus for appeal was to the home governing body or to the proprietor. During the career of the Virginia Company of London, in which the appellate function was vested, there was but one appeal or "complainte in nature of an appeale." This "appeal," by Captain Brewster from an October, 1618, sentence of a "Martiall Court" held by Captain Argali, resulted in a hearing by the Quarter Court of the company in May, 1620, when the sentence was voided.270 Of more fre287

Acts and Ordinances of the Eastland Company, xxii, Ixxi-lxxiii, 155-59. 268 The trading company charter usually contemplated operations in foreign territory under the rule of another sovereign with a judicial system controlled by such sovereign; the causes to be decided in the factories would be limited both in subject matter and in parties. But in the colonization charters there was contemplated no alien sovereign and no established court system. 289 See Schlesinger, Colonial Appeals to the Privy Council, 28 Political Science Quarterly,

287. For the charter provisions see inter alia 1 Thorpe, op. cit., 51, 55; 3 ibid., 1681, 1839, 1856^57; 7 ibid., 3788, 3800; i Lefroy, op. cit., 94. For discussion of the inherent right of the subject to appeal to the King see infra, pp. 74-75, 140-44. 270 The course of the appeal may be traced in ι Ree. Va. Co., 217, 219, 222, 226, 230, 273, 309, 343, 358, 360-63, 365-67. 371. 374· The point in issue was the use of martial law by Argali, the deputy governor of the colony, to sentence Brewster for words spoken in a private dispute.

RISE OF JURISDICTION

43 271

quent occurrence were orders by the court upon petitions of complaint, or orders wherein the Governor and Council in the colony were admonished to do justice in a particular cause. 272 That ultimate authority was not conceived to reside in the company is indicated by mention of appeals to the King for relief against alleged unjust action by the Quarter Court. 2 7 3 The importance of this company appeal period is slight, but it may have served to facilitate the later imposition of crown control over plantation judiciaries. From 1619 onward events combined to stimulate royal interest in control over colonization activities. The clashes between the crown and the Virginia Company which culminated in the 1624 dissolution of the latter were more the result of domestic political struggles than a deliberate aggrandizement of crown power over the plantation. For interest focused primarily upon the relations of the crown and the company in England; the question of control over the settlements was rather obscured, although jurisdiction over complaints against the company was conferred upon crown commissioners, and a royal commission of inquiry was dispatched to Virginia. 274 Further conciliar commissioners for the affairs of Virginia were appointed after the abolition of company government. 275 Upon the accession of Charles I it was formally proclaimed that the government of Virginia should not be committed to any company or corporation, as it was not fit or safe to intrust the ordering of state affairs to such bodies. 276 Yet in 1627,1629, and 1632, respectively, we find charters granted to the Earl of Carlisle, the Massachusetts Bay Company, and Lord Baltimore, each conferring broad autonomy. 277 Several episodes in Massachusetts Bay soon graphically revealed the desirability of established agencies of colonial administration. In 1632 complaint was made to the crown by Thomas Morton, Philip Ratcliff, and Sir Christopher Gardiner, all sufferers at the hands of the Massachusetts Bay authorities, which placed the conduct and attitude of that colony in a seditious and rebellious light. 278 Support was given the complaint by the influence of Sir 271

2 ibid., 97, 1 1 9 ; cf. ibid., m. Ibid., 104, 105. 273 For threats by one Samuel Wrote to appeal to the King see ibid., 199-200, 203, 214. In relation to this appeal it was given as a legal opinion that "if either by sufficient testimony of any present, or by other good evidence it could be made appeare unto the Court, that his Majestic hath accepted of that appeale, then the Court was bound without any farther medlinge in the buissines to reserve the matter entire to his Majesties pleasure from whom they derived all the power and authority they have" (ibid., 249). 272

274

See 3 Osgood, The American Colonies in the Seventeenth Century (1926), c. ii; 1 APC, Col., # 9 8 . 275 ι APC, Col., #122-24. We have seen no evidence of the "similar commissions" for other plantations mentioned by Andrews, British Committees, 14. 276 18 Rymer, Foedera, 72-73 (May 13, 1625). 277 See CO 2 9 / 1 / 1 - 1 2 ; 3 Thorpe, op. cit., 1846, 1669. 278 See 3 Osgood, op. cit., 56-60; Morton, The New English Canaan (Prince Soc. Pub., 1883, ed. C. F. Adams), 43 et seq.

44

RISE OF JURISDICTION

Ferdinando Gorges and Captain John Mason, both claiming that the Massachusetts Bay patent infringed upon previous grants from the Council of N e w England. 279 When no action followed a favorable hearing before a committee of the Council on this complaint, Gorges turned for aid to Archbishop Laud, who was intent upon repressing dissent in the plantations.280 Following a 1634 inquiry by the Privy Council under Laud's guidance into its nature and origin, the 1629 patent was allegedly declared void. 281 The first coherent attempt at imperial control followed as a natural successor to the previous Committees for N e w England and for Foreign Plantations.282 In April, 1634, Charles I, by commission, named certain members of the Privy Council to handle matters for Foreign Plantations. The instrument conveyed broad powers of hearing complaints and seemingly also appeals. 283 In addition, proposed restorations of a company form of government for Virginia recognized the principle of recourse to the Privy Council by appeal or otherwise from decisions of the governing body of the company. 284 In the decade preceding the domestic disturbances of the 1640's intervention of the Privy Council in colonial matters was most frequent in the affairs of Virginia. This intervention in some instances took the form of directive ex parte orders that justice and right be done certain petitioners,285 or more definite orders were sometimes issued upon complaints reported on by ancillary conciliar bodies.286 Closer to appeals in nature was the ordering of rehearings in the colony of both civil 2 8 7 and criminal causes 2 8 8 following ex279 ι Sir Ferdinando Gorgei and His Province of Maine (Prince Soc. Pub., 1890, ed. J. P. Baxter), 158-60. 280 Ibid., 161-63; 3 Osgood, op. cit., 59-62; 1 APC, Col., # 3 0 2 , 306. 281 The New English Canaan, 61. 2 8 2 See ι APC, Col., # 3 1 3 , 330. 2 8 3 This is the body generally known as the "Laud Commission." A quorum of five was sufficient "to hear and determine all complaints, at the entrance and suit of the party grieved, whether it be against the whole colonies themselves or any governor or officer of the same, or whether complaint touching wrongs exhibited and depending, either between the whole bodies of the colonies, or any private member thereof, and to summon the persons before you, and they or their procurators or agents being on both sides heard, finally to determine thereof, according to justice" (1 Hutchinson, Hist. Col. and Prov. Mass. Bay, 420). Whether appeals would lie from the colonial courts depended on the interpretation given by the commission to the power to establish courts, etc., wherein the patentees

were given power to constitute and ordain "manner of process and appeals from and to the said courts" (ibid., 419). 2 8 4 Authority granted to the President and Council was to be under the control of the King and the Privy Council, "particularly of the Lords and other Commissioners for forraigne Plantations, upon Appeale or other information" (1 APC, Col., # 4 0 3 ) . 285 Ibid., # 1 6 7 , 274. 286 Ibid., # 1 9 0 . As to one aspect of the cause the Council ordered that in case any proceedings were had against the petitioner during his absence, no final judgment should be passed until the proceedings were transmitted to the Board and further order given therein. 2 8 7 In the case of Laurence Evans it appeared that petitioner's agent had been negligent in prosecuting the cause in the Virginia courts and that evidence and instructions forwarded to the agent had not reached him (ibid., # 4 3 2 ) . A cause between Samuel Mathews and John Woodhall was ordered reheard by the Governor and Council; all the councilors were to attend the hearing, and no parties to the

RISE OF JURISDICTION

45

amination by ancillary conciliar bodies. Applications for relief against judicial conduct are few in number, and no recognizable appellate system emerges from these puerile efforts to supervise colonial administration. As to procedure, it can be said that use of the ubiquitous conciliar petition for relief from judicial proceedings in the plantations cannot be differentiated from proceedings by way of petition in nonjudicial matters. THE RECALCITRANCE OF MASSACHUSETTS BAY

The earliest of the long series of challenges of the right of the King to hear appeals from the plantations occurred in Massachusetts Bay. These constituted early manifestations of the struggle to achieve autonomy which marked the career of that colony. Thus, in 1632 a malfeasor was punished for threatening to "have it tried" in England whether he was lawfully punished or not.289 In 1637 John Wheelright, sentenced to banishment, attempted an appeal to the King, but was informed that an appeal did not lie, that by the royal grant the colony had power to determine without any reservation.290 The real harbinger of later bitter agitations was an episode in the colony which emerged from the presentation to the General Court of a remonstrance by Robert Child and six others in May, 1646.291 This petition, political in nature, was severely critical of existing conditions in the colony and advocated certain drastic reforms unpalatable to the existing regime.292 Obviously incause were to be excluded therefrom

{ibid.,

#434)· 288 Ibid., # 4 4 6 . Upon certificate of the Subcommissioners for Foreign Plantations it was ordered by the Council that part of the sentence which ordered banishment should be suspended until further notice from the Board, that two councilors should be excluded from the rehearing, and that property taken from the petitioner should be delivered to persons named by the Governor and Council until further notice from the Board. 289 2 Records of the Court of Assistants of the Colony of Massachusetts Bay (1904), 21. 290 ι Winthrop's Journal (ed. J. K. Hosmer, 1908), 240; cf. ibid., 273. Notwithstanding, Thomas Lechford presumed that the patent reserved and provided for appeals in some cases to the King (Plain Dealing [1642; ed J. H. Trumbull, 1867], 64). 2 9 1 The literature on this episode is extensive. T h e most detailed accounts are found in G. L. Kittredge, Dr. Robert Child the Remonstrant, 21 Col. Soc. Mass. Pub. ( 1 9 1 9 ) , 1 - 1 4 6 ; W. T . R. Marvin in his introduction to a reprint of Major John Child's New-England's Jonas Cast

Up at London (1647; reprinted Boston, 1869); 2 Palfrey, History of New England (1892), 165-79; W . Hubbard, General History of New England ( 1 8 1 5 ) , 499-519; P. Oliver, The Puritan Commonwealth (1856), 420-30; 1 Hutchinson, op. cit., 124-27; 1 Osgood, op. cit., 257-64; 3 ibid., I H - 1 2 . The other petitioners were Thomas Burton, John Dand, Thomas Fowle, Samuel Maverick, John Smith, and David Yale (Kittredge, loc. cit., 1 7 ) . 2 9 2 The reforms urged fell under several heads: First, the establishment of "the Fundamentall and wholsome Laws of our native County, and such others as are no way repugnant to them. . . . And for the more strict and due observation and execution of the said Lawes by all Ministers of Justice, that there may be a sctled Rule for them to walk by in cases of Judicature, from which if they swerve, there may be some Power setled, according to the Lawes of England, that may call them to account for their delinquencie, which may be a good means to prevent divers unnecessary Appeals into England." Secondly, that civil liberty and freedom be granted to all truly English.

46

RISE OF

JURISDICTION

t e n d e d f o r parliamentary c o n s u m p t i o n , it w a s regarded by the P u r i t a n leaders as a d e s i g n calculated to impose the t r a m m e l s of E n g l i s h control upon the commonwealth.293 W h e n in the N o v e m b e r , 1646, session of the G e n e r a l C o u r t the remonstrants w e r e s u m m o n e d before the court, they refused to acquiesce in the jurisdiction of that b o d y a n d appealed to the parliamentary commissioners in E n g l a n d . 2 9 4 T h e court, h o w e v e r , refused to a l l o w any appeal, g r o u n d i n g denial upon the t e r m s of the c h a r t e r . 2 9 5 A t a later session in the same m o n t h the six r e m a i n i n g remonstrants w e r e again s u m m o n e d before the General C o u r t , a n d a c h a r g e w a s read accusing t h e m of various seditious and subversive actions, i n c l u d i n g a disclaimer of jurisdiction by appealing before it w a s

known

w h e t h e r the court w o u l d g i v e sentence or n o t . 2 9 8 In a n s w e r C h i l d stated that they c o n c e i v e d it l a w f u l to appeal to the Parliament, but it w a s replied that appeals d i d not lie by the charter a n d that a premature appeal acted as a disc l a i m e r of j u r i s d i c t i o n . 2 9 7 A s a result of the h e a r i n g the petitioners w e r e f o u n d g u i l t y a n d fined in proportionate s u m s . 2 9 8 A l l the parties again appealed to P a r l i a m e n t against these sentences, but the court refused to receive the appeal.299 Thirdly, that liberty be given to reputable "members of the Churches of England" to be taken into the colony churches, or granted liberty "to settle themselves here in a Churchway according to the best Reformations of England and Scotland." This is followed by the threat of an application to Parliament, viz., "If not, we and they shall be necessitated to apply our humble desires to the Honourable Houses of Parliament, who we hope will take our sad conditions into their serious considerations." The "Remonstrance and humble petition" is set forth in Child, op. cit., 8-18. 203 E. Johnson, Wonder-Wording Providence of Sions Saviour in New England (1654; reprinted Andovcr, 1867), Book III, c. iii; Kittredge, loc. cit., 82-87; 2 Winthrop1! Journal, 297-99· 2n · 3 Ree. Mass. Bay (ed. Ν. Β. Shurtlefï, 18-4), 88-89; 2 Winthrop's Journal, 296. 20s Ibid., 296-97; E. Winslow, New-Englands Salamander Discovered (1647), 2 Mass. Hist. Soc. Coll. (3d ser.), 123. At a previous meeting of the court it had been propounded for consideration in what relation the colony stood to England. The magistrates all agreed that the charter was the foundation of the government and "thereupon some thought, that we were so subordinate to the parliament, as they

might countermand our orders and judgments, etc." (2 Winthrop's Journal, 290). But the advice of the elders on the question was that "we conceive, that in point of government wc have [been] granted by patent such full and ample powers . . . of a full and final determination of all cases in the administration of justice, that no appeals or other ways of interrupting our proceedings do lie against us" (ibid., 294). 2üe Ibid., 297-99; 3 Ree. Mass. Bay, 90-91. Remonstrant Thomas Fowle had sailed for England before the later session (Kittredge, loc. cit., 33). 297 2 Winthrop's Journal, 303. For the importance of the appeal as a basis for censure see 2 Winthrop, History of New England (ed. J. Savage, 1853), 430-31· 2BS 3 Ree. Mass. Bay, 94; 2 Winthrop's Journal. 304-5. Child was fined ¿ 5 0 , Smith, £ 4 0 , Maverick (who had not attempted a premature appeal [Kittredge, op. cit., 32, 3 8 ] ) , ¿ 1 0 , the others, ¿ 30 apiece. 299 "Upon which [the rendering of sentence] they all appealed to the parliament, etc. and tendered their appeal in writing. The court received the paper; but refused to accept it or to read it in the court" (2 Winthrop's Journal,

305)·

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4 7

Shortly afterwards an agent, E d w a r d W i n s l o w , was dispatched to E n g l a n d by the colony government to urge its interests and to defend its shortcomings before the Commissioners for Foreign Plantations. 3 0 0 W i n s l o w carried with him a petition to the commissioners which strongly urged acceptance of the v i e w that no appeals to Parliament lay from the determinations of the Massachusetts Bay authorities. 3 0 1 H e also urged this doctrine in a polemic pamphlet directed against opponents of his principal. 3 0 2 T h e E a r l of W a r w i c k and the other commissioners by implication supported this stand on the part of the 300

Ibid., 295, 3°9· After relating the attempt of Child et al. to appeal to Parliament the petition stated: "Their appeals we have not admitted, being assured that they cannot stand with the liberty and power granted us by our charter, nor will it be allowed by your honors, who well know it would be destructive to all government, both in the honor and also in the power of it, if it should be in the liberty of delinquents to evade the sentence of justice, and force us, by appeal, to follow them to England, where the evidence and circumstances of facts cannot be so clearly held forth as in their proper place, besides the insupportable charges we must be at in the prosecution thereof. These considerations are not new to your honors and the high court of parliament, the records whereof bear witness of the wisdom and faithfulness of our ancestors in that great council, who, in those times of darkness, when they acknowledged a supremacy in the bishops of Rome in all causes ecclesiastical, yet would not allow appeals to Rome, etc., to remove causes out of the courts of England. "Besides (though we shall readily admit, that the wisdom and experience of that great council, and of your honors, as a part thereof, are far more able to prescribe rules of government, and to judge of causes, than such poor rustics as a wilderness can breed up, yet) considering the vast distance between England and these parts, (which usually abates the virtue of the strongest influences), your counsels could neither be so well grounded, nor so seasonably applied, as might either be so useful to us, or so safe for yourselves, in your discharge, in the great day of account, for any miscarriage which might befal us, while we depended upon your counsel and help, which would not seasonably be administered to us" (ibid., 312). In his secret instructions Winslow was provided with an answer to the question why process was not made out in the King's name. 301

Hie answer stated inter alia "for avoiding appeals, etc" (ibid., 314). 302 In the episde dedicatory of Hypocrisie Unmasked (1646; reprinted Providence, 1916), an answer to a pamphlet of Samuel Gorton, Winslow's fourth request of the Earl of Warwick and the other commissioners was "to take into your serious consideration, how destructive it will prove to the well-being of our Plantations and proceedings there, (who by Gods blessing are growing up into a Nation) here to answer to the complaints of such malignant spirits as shall there bee censured by Authority, It being three thousand miles distant, so far as will undoc any to come for Justice, utterly disabling them to prove the equity of their cause, unlesse their estate bee very great." This statement was replied to by John Child in New-England's Jonas Cast Up at London ('647) 30-31, where he writes: "See and observe (Reader) how he seeks to stop all appeals from all this unjust sentences, whatsoever they may be contrary to the Lawes of England. Secondly, he would make their Honours to be the instruments to stop the current of the greatest liberty of English subjects there; he would engage the Parliament in it; and what a desperate business this would prove, every wise man may easily see; For being begun at this Plantation, by the same rule others might seek it should extend to all other Plantations, and then why not to Ireland? and why shall not example, custome, and fair pretences bring it into Wales and Cornwal, so over England?" In rebuttal Winslow stated: "And for the matters of appeals from New-England hither, which is three thousand miles distant, it will bee found to be destructive to them that there live: for no country can subsist without government, or repaire so farre to it; nor will any wise man accept a place in government where hee shall be exposed to goe so farre to give account of his actions, though they be never so just." New-England* Salamander

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Winthrop government. 3 0 8 However, such a parliamentary attitude did not suffice to discourage other attempted appeals to England. W h e n some of the remonstrants were further fined for subversive activities in drafting petitions for presentation to parliamentary interests in England in connection with their initial sentences, appeals were again unsuccessfully attempted. 304 T h e colonists apparently considered themselves victorious, for in a 1651 petition to Parliament they expressed gratitude for the stopping of appeals from the colony to Parliament. 3 0 5 T h e emphasis placed by the General Court upon the letter of the charter provisions foreshadowed what was to become major strategy in later controversies. Although the charter clearly contemplated the administration of justice in the colonies by the grantees, 306 the lack of any provision for an appeal from the decisions of the governing body to Parliament is understandable. Obviously, if a right of appeal had been inserted, the appeal would have been to the K i n g in Council, not to Parliament. But since the appeal denied here was made to Parliament, it did not afford an exact precedent for denial of an appeal to the K i n g when that question should arise. 307 W e have already seen the probable explanation for failure to reserve such appeal in earlier charters. 308 T h e problem of charter terms and English control was further complicated in the case of Massachusetts Bay by the circumstance that the charter did not preclude the company

from holding its meetings in the territory

Discovered, ι Mass. Hist. Soc. Coll. (3d ser.), 123. 303 A May 25, 1647, letter from the Commissioners after Winslow had presented the above petition stated: " A n d perceiving by your petition, that some persons do take advantage, from our said letter, to decline and question your jurisdiction, and to pretend a general liberty to appeal hither, upon their being called in question before you for matters proper to your cognizance, we thought it necessary (for preventing of further inconveniences in this kind) hereby to declare, that we intended not thereby to encourage any appeals from your justice, nor to restrain the bounds of your jurisdiction to a narrower compass than is held forth by your letters patent, but to leave you with all that freedom and latitude that may, in any respect, be duly claimed by you; knowing that the limiting of you in that kind may be very prejudicial (if not destructive) to the government and public peace of the colony." 2 Winthrop's /ournal, 337. In this connection note that the "Charter of Civil Incorporation"

granted to Providence Plantation by Warwick and the Parliamentary commissioners on March 17, 1643/4, contained no reservation of appeals. See 2 R.I. Hist. Soc. Coll., 259. For the authority of Warwick et al. see ibid., 250. 304 For an account of these activities see Kittredge, loc. cit., 3 9 - 4 1 . For the trial and sentence, ibid., 52-59; 3 Ree. Man. Bay, 1 1 3 . For mention of the appeal see Maverick, A Briefe Description of New England, 1 Mass. Hist. Soc. Proc. (2d ser.), 240; Clarendon Paperi, 2 N Y H S Pub. Fund Ser. (1869), 23. One ground of the second fine imposed upon Maverick was "appealing against the intent of his oath of a freeman" (3 Ree. Mass. Bay, llj). 305 ι Hutchinson, op. cit., 430. 306 See 3 Thorpe, op. cit., 1858. 307 See C. H. Mcllwain, The Transfer of the Charter to New England and Its Significance iti American Constitutional History, passim, in Constitutionalism and the Changing World ( ' 9 3 9 ) . e· Χ· 308 Supra, pp. 4 1 - 4 2 .

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granted.* 0 '

By the disposal of the holdings of shareholders resident in England to those who had emigrated, absentee company administration was replaced by local government. 110 This removal rendered impossible a system of appeals from company units outside the realm to the governing body in England such as operated in at least one trading company structure. 811 Distance breeds contempt for authority, and a company-governing group in Massachusetts Bay could indulge in actions and assume attitudes not feasible for a similar group located in England.

Let us now examine the situation where an appeal was reserved to a governing body or individual proprietor in England in its relation to a possible appeal to the King in Council. The Council of New England reserved an appeal to itself under certain circumstances in a grant to Sir Ferdinando Gorges and Captain John Mason, in 1632,812 and more generally in a 1635 grant to Mason. 318 We have seen no evidence that this right was ever exercised. The first express reservation of an appeal to a proprietor in a royal patent is found in the 1639 grant of Maine to Gorges. Appeals to the grantee or to his governor or chief deputy were to be allowed from the provincial courts within forty days of sentence if appeals in similar English courts were admitted. Further appeal was intimated in the clause that the exercise of all powers of 308 2 Scott, The Constitution end Finance of English, Scottish and Irish foint-Stocl( Companies to 1720 ( 1 9 1 2 ) , 201. A s Co the question whether it was intended that the charter and corporation should be transferred to N e w England see Deane, The Forms Used in Issuing Letters-Patent by the Crown of England, n Mass. Hist. Soc. Proc. ( i s t ser.), 166-88; Davis, History of the Judiciary in Massachusetts (1900), 25-27; Hilkey, Legal Development in Colonial Massachusetts, 1630-1686 (1910), 1 0 - 1 2 ; Barry, History of Massachusetts ( 1 8 5 5 ) , 174 et seq. There are official statements at a later date (1679-80) that the charter was originally to be executed in England and not in N e w England (3 Edward Randolph [Prince Soc. Pub., 1899, ed. R. N . T o p p a n ] , 49, 83). One of the grounds proposed by Randolph for a quo warranto proceeding against the charter was "their managing their Charter in N e w England whereas by the doquett of said Charter it plainely appeares that they were constituted a Corporation and to be a Governor and Company, etc: here in England" (ibid., 96). Compare the opinion of Attorney General Sawyer that "they may reside and act in N e w England" (ibid., 101). 3 1 0 2 Scott, op. cit., 201 ; cf. ι Andrews, Colonial Period, 3 7 1 - 7 3 .

See Acts and Ordinances of the Eastland Company, 52. 8 1 2 Gorges and Mason convenanted to establish a government in the lands granted to them "as neere as may be to the laws and customs of the realme of E n g l a n d " ; if charged with neglect of this duty, they were to conform to the directions of the grantor therein, "or in default thereof it shall be lawful for any of the aggrieved inhabitants and planters, being tennants upon ye said lands, to appeal to ye chief courts of justices of the President and councill" (3 Thorpe, op. cit., 1624). 3 1 3 Judicial and other powers were granted "saveing and allawayes reserving unto ye said Councill and their Successors power to receive heare and determine all and singular appeal and appeales of every person and persons whatsoever dwelling or inhabiting within ye said territoryes and Islands or any part thereof soc granted as aforesaid and from all Judgements and sentences whatsoever given within ye said lands and territoryes aforesaid" (4 Thorpe, op. cit., 2442). But this grant was probably void, since the Council of N e w England did not have power to transfer rights of government; see 1 Doc. and Ree. Rei. Prov. N.H. ( 1 8 6 7 ) , 37; W . H. Fry, New Hampshire As a Royal Province (1908), 23-24. 311

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government was to be subject to the regulation of the Lords Commissioners for Foreign Plantations.814 However, when at a September, 1640, General Court held by the proprietary councilors in the province several fines were imposed upon the turbulent divine George Burdett, we have it on hearsay that an appeal to England was denied; 3 1 5 whether directed to the proprietor, the King in Council, or some other body does not appear. More significant is an episode in the rivalry of two prominent figures in the province, George Cleeve and John Winter. 316 In September, 1640, Cleeve brought two actions against Winter in the General Court, one denominated trover, the other an "action of interruption," but both were in the nature of ejectment.317 In both cases judgment was given for the plaintiff, following jury trial. 318 Winter petitioned for leave to appeal to the proprietor before judgment was given on the verdicts, but the application was denied on the ground that the proprietor was present in the person of the court. 319 Robert Trelawny, Winter's principal, was then advised to resort to the "Lords Comitioners"—presumably those for Foreign Plantations—for relief if application to proprietor Gorges were unavailing.®20 Winter forcibly resisting levy of execution upon the two judgments, a recognizance was taken from him in April, 1641, to appear and answer at the June session of the General Court. 321 At this session Winter accordingly appeared and prayed an appeal from both judgments to "the most Honorable Lords of [the] High Commission for the State to whom as your petitioner [bejlueth it doth soly belong to Judge of causes and cases of [such] like nature, and to no other inferiour power whatsoever." 3 2 2 It scarcely seems likely that the ecclesiastical Court of High Com314

The clause in full read, "that the inhabitants and residents within the said province and premisses and passengers to and from the same may within fortie days after sentence given in the said courtes (where appeales in like courtes within this kingdome are admitted) appeale to the said Fardinando Gorges his heires or assignes or his or theire generali govcrnour or chiefe deputie of the said province or premisses for the tyme being to whome wee doe . . . give full power and authoritie to proceede in such appeals as in like case of appeales within this our realme of England" (3 Thorpe, op. cit., 1629). Apparently both these clauses originated with the Lords Commissioners for Foreign Plantations; see ι Province and Court Records of Maine (Maine Hist. Soc. Pub., 1928, ed. C. T . Libby), 1 3 , 1 5 , notes. 315 2 Winthrop, History of Neur England (ed. Savage), 1 1 - 1 1 ; Hubbard, op. cit., 3 6 1 . The official court records make no mention of the

demand for an appeal; see 1 Prov. and Ct. Ree. Me., 74-75. As a measure of self-protection such omission is understandable. 316 For some account of the relations of Cleeve and Winter see J. P. Baxter, George Cleeve of Casco Bay (Gorges Soc. Pub., 1885), 41 et seq. 317 ι Prov. and Ct. Ree. Me., 56, 58-64; Trelawny Papers, 3 Doc. Hist. State of Maine (ed. J. P. Baxter; 1884), 206-9, 225-32. 3,8 ι Prov. and Ct. Ree. Me., 6 1 - 6 2 , 64. For some account of the trials see Trelawny Papers, 244-47· Ibid., 233-34, 247. 320 Ibid., 241. Cf. the statement of Winter that, " I thinke is but litle right to be expected from this Court, but must seeke to the lords pattcntes from whence your patten was granted" (ibid., 247). 321 Ibid.. 252-57. 322 Ibid., 260-63. The interpolations are the editor's.

310

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51

mission was intended by the designation; 828 a contemporary account mentions this appeal as to "the Princ and Chancellor." 824 In all probability either the King in Council or the Lords Commissioners for Foreign Plantations was the intended appellate body. 328 Winter also attempted to attaint the juries, 82 · but the jurors countered with actions of slander against Winter and forced abandonment of any attaint.827 Finally, the General Court resolved the difficulty by a declaration that all actions in the province should be referred to arbitration, with one Stephen Bochiler as umpire. 328 Winter reluctantly submitted to this course,829 although it later appeared that proprietor Gorges had entertained the appeal and ordered all proceedings stayed.330 Trelawny also advised that in default of justice application could be made for Parliamentary warrant to cause the court to answer for their conduct in England. 331 But with interest absorbed in domestic disturbances, seemingly no capital was made at home of this incident in the distant province of Maine. However, the episode is significant as illustrating the impracticality, under the circumstances, of a proprietary appellate system and the prevalent vague concepts of public appellate jurisdiction in England. 882 LATER ROYAL CHARTERS

The importance of charter provisions or the lack thereof as illustrated in the Child episode did not seemingly permeate English administrative consciousness, or else personnel changes incident upon the Restoration served to obliterate recollection. In the Connecticut charter granted in 1662 there was no provision inserted for appeals to the King, although there was a specific bestowal of 3 2 3 For the jurisdiction of the Court of High Commission see Usher, The Rise and Fail of the High Commission (1913), 279, 338-41. 324 Trelawny Papers, 315. 3 2 5 Baxter assumes that the appeal was intended for King's Bench (Trelawny Papers, 316, note; George Cleeve of Casco Bay, 99). 328 Trelawny Papers, 263. For "the bill of errors and taynt" see ibi J., 268-69. One Robert Jordan declared a year later that Winter exhibited "a petiton of appeale to the Princ and Chancellor, by plea of an attajnt agajnst the jurors in the action of interruption in the behalf of the King, becaus the articles of the commission hecre (after the construction of the councellors for the Prouince) will allow no appeales in personall actions, but only in cases that concerne the Kinge" {ibid., 315-16). But the two commissions of Gorges contained no such limitation on appeals (1 Prov. and Ct. Ree. Me., 30-41). Although English practice allowed simultaneous writ of error and attaint

proceedings (see 3 Dyer 284b), Jordan apparently interpreted Winter's procedure as the institution of attaint proceedings in order to obtain an appeal therefrom if necessary. 327 Trelawny Papers, 318. 328 ¡bid., 319. 328 Ibid., 269-72, 279-80, 319. 330 Ibid., 273. 33» Ibid., 274. 3 3 2 However, appeal to an English proprietary body was later utilized in Bermuda (2 Lefroy, op. cit., 49-50, 123, 169, 309, 418-19), in the Carolinas (CSP, Col.; 1696-97, # 1 4 9 I; E. McCrady, History of South Carolina under the Proprietary Government [1901], 693) and in the Bahamas (CSP, Col., ¡yol, ,#982). A 1672 declaration of proprietary intent for New Jersey contained the provision that "all appeals, shall be made from the assizes, to the Governor and Council, and from thence to the Lords Proprietors; from whom they may appeal to the king" (5 Thorpe, op. cit., 2545).

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authority to create a judicial system. 833 A year later a charter was procured by Rhode Island and Providence Plantations, but again no provision was made for appeals in private causes. 334 This liberality is the more surprising in that the prevalent attitude of the English administrators favored extension of control over colonial possessions, and the conduct of the Massachusetts Bay colony was again the subject of complaint. 335 Various theories have been advanced to justify the liberal character of these charters, including recognition of the loyalty of these colonics, the character of the agents who secured the grants, court influence, and a scheme of the Earl of Clarendon to isolate Massachusetts. 330 Lack of administrative foresight and adherence to established forms probably account for the absence of appeal reservations. Curiously enough, in spite of the absence of a general appeal reservation in the Rhode Island charter, a 1666 colony "Act for the Calling of Special Courts" saved aggrieved parties "the liberty of appealing to His Majesty in Council in England, as in other cases is usually allowed." 3 3 7 The above Rhode Island charter is a principal exhibit supporting the theory of an animus against Massachusetts, for although the absence of a general appeal clause appeared to foreclose recourse by private litigants to the crown, the colony itself was granted the right to appeal to the King in all public disputes with other New England colonies. 338 The genesis of this provision may have been the boundary disputes surrounding the charter inception or, as suggested, a possible safeguard against an unpopular and truculent neighbor, Massachusetts Bay. 3 3 8 It is arguable that the operation of this clause would in effect amend the charters of contiguous colonies. For it would force an ad333 ι Thorpe, op. cit., 533. In the instructions of the General Court of Connecticut to John Winthrop, who was dispatched to obtain the Connecticut charter, it was desired that the patent "comprehend all the rights, priviledges, authority and imunities that are granted in the Massachusetts Colonyes Pattern" (1 Pub. Ree. Col. Conn., 580). 534 6 Thorpe, op. cit., 3 2 1 1 - 2 2 . There is some evidence that the colonists at the time of the granting of the charter conceived of King's Bench in England as the proper appellate tribunal. In October, 1662, John Hodson moved the General Court of Trials for an appeal to be granted him to the King's Bench in England in a cause with Peter Tollman and Ann Elton. The court, seeing no cause to grant the motion, referred Hodson to the next Court of Commissioners (2 Ree. Ct. Triait Col. Prov. Plant. [1922], 1 1 ) . But no application was made at said court (1 MS RI. Col. Ree., 170).

335

3 Osgood, op. cit., c. vi. Kaye, English Colonial Adminijtration under Lord Clarendon (1905), 47-50. 337 Acti and Lawi Col. RJ. ( 1 7 1 9 ) , 1 7 - 1 8 . 338 The clause in question provided that "in all matters of publique controversy which may fall out between our Colony of Providence Plantations, and the rest of our Colonies in New England itt shall and may be lawfull to and for the Governour and Company of the sayd Colony of Providence Plantations to make their appeales therein to vs, our heirs and successors, for redresse in such cases, within this our realme of England" (6 Thorpe, op. cit., 3221). 339 For an account of these boundary disputes with Connecticut see Kaye, op. cit., 44-46; 2 Andrews, Colonial Period, 43 et seq.; ι Ree. Col. R.I., 518. The contcxt of the clause in question supports the first theory. 338

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versary to a p p e a r before the K i n g w h a t e v e r the t e r m s of its charter, o r p e r m i t R h o d e Island to secure an ex parte h e a r i n g . 3 4 0 T h e C a r o l i n a patent w h i c h passed the seals shortly before that of R h o d e I s l a n d contained a clause w h i c h seemed to contemplate the possibility of a p peals to E n g l a n d , 3 4 1 but it remained f o r the 1664 patent to the D u k e of Y o r k to p r o v i d e in express terms for appeals to the K i n g in all causes decided w i t h i n the limits of the p a t e n t . 3 4 2 T h e second charter to the same patentee repeated the provisions of the earlier g r a n t w i t h respect to a p p e a l s . 3 4 3 T h e g r a n t s in t u r n b y the D u k e of Y o r k to the L o r d s Proprietors of N e w Jersey w e r e subject to this reservation, a n d some provision is f o u n d f o r such a p p e a l s . 3 4 4 O n the other hand, the 1 6 7 0 patent f o r the B a h a m a s contained no such appeal reservat i o n . 3 4 5 It is probable that the N e w Y o r k reservation w a s a measure d e s i g n e d to facilitate readjustments in a c o n q u e r e d province. T h e charter f o r P e n n s y l v a n i a , g r a n t e d in 1 6 8 1 , w h e n m o r e administrative experience had been g a i n e d , contained substantially the same provisions in r e g a r d to appeals as d i d that to t h e D u k e of Y o r k . 3 4 8 I n the c o n c o m i t a n t instruments of colonial control, the gubernatorial commissions a n d instructions, no provision as to appeals is f o u n d prior to ι ( η < ) * " 840 Kaye (op. cit., 46) seems to have failed to note this provision. 841 The charter contained a clause as follows: "and that the inhabitants of the said Province, nor any of them, shall at any time hereafter be compelled or compellable, or be any ways subject or liable to appear or answer to any matter, suit, cause, or plaint whatsoever, out of the Province aforesaid, in any other of our islands, colonies or dominions in America or elsewhere, other than in our realm of England, and dominion of Wales" (5 Thorpe, op. at., 1 7 5 2 ; cf. 2 Osgood, op. cit., 1 1 ) . 842 The charter granted wide judicial powers "saving and reserving to us our heires and successors ye receiving hearing and determining of the appeal and appeales of all or any person or persons, of in or belonging to ye territoryes or islands aforesaid in or touching any judgment or sentence to be there made or given" (3 Thorpe, op. cit., 1638-39). 843 Ibid., 1642. But note the mention by the Duke of York of an ultimate appeal to himself (3 Doc. Rei. Col. Hist. N.Y., 235). 344 In explaining the concessions made to the planters of New Jersey, the proprietors stated in 1672 that "all appeals, shall be made from the assizes, to the Governor and his Councill, and from thence to the Lords proprietors; from whom they may appeal to the King" (Grants,

Concessions, and Original Constitutions of the Province of New Jersey [ed. A. Learning and J. Spicer, 1 8 8 1 ] 3 3 ) . Directions given in the same year to the Governor and Council provided: "That in case of appeals, the appealant if cast upon his appeal, for England, shall pay as a fine to the Judge, twelve pounds besides all costs and damages, and to give in security in one hundred pounds there, for the prosecuting the same within eight months" (ibid., 38). Presumably this provision was meant to govern appeals to the proprietors rather than to the King in Council. In a 1674 declaration and explanation of the proprietor, Sir George Carteret, the above appeal hierarchy was preserved with a single rather than plural proprietors (ibid., 56). As to the regulation of appeals it was stated "that in case of appeal for England the appealant be bound to pay all cost and charges if caste; and upon the appeal, shall pay as a fine to the judges twelve pounds, besides all costs and damages adjudged against him in the Province, and to give in security of an hundred pounds here for prosecuting the same within eight months" (ibid., 54). 345 Hist. Doc. Rei. Bahamas Islands (comp. H. Malcolm, 1910), II. 348 5 Thorpe, op. cit., 3038. 341 See infra, p. 81.

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Meanwhile, the controversy over the right of appeal from Massachusetts Bay to authorities in England, raised in the case of Dr. Child, was not allowed to languish. Upon the Restoration there was an increased awareness on the part of English officialdom of the importance of the colonial possessions and of the necessity for establishing a system of colonial administration.348 Within a few months of the return of the King, the need for imperial control appeared, when the actions of Massachusetts Bay were complained of in petitions of grievance.349 At least one Restoration pamphlet adverted to the former denials of appeals by this colony.350 Informed by Leverett, its agent in England, of the threat to impose a royal governor, the General Court forwarded a sycophantic address to the King and shrewd Fabian instructions to its agent. 361 Among other instructions it was insisted that no appeals be allowed to England in any cause; 3 5 2 Leverett is alleged to have asserted this right in no uncertain terms. 353 In 1661 divers petitions complaining of various actions of the Massachusetts Bay government were presented to the Privy Council.354 Samuel Maverick, an indefatigable opponent of the Puritan regime, took great pains to bring the offending colony under some form of imperial control.355 In his accusations against the colony Maverick utilized the Child episode to advantage as an example of arbitrary and recalcitrant conduct.356 Whether advocating the dispatch of a general governor or of commissioners to New England, he advised that the power to hear appeals be granted.357 While declarations were being made of an intention to send commissioners to New England, 358 the offending colony avoided de jacto recognition of a right of appeal by inaction upon a royal order that Quakers imprisoned under sentence of death or other corporal punishment be forwarded to England for such treatment as the law provided and their actions warranted.359 348

3 Osgood, op. cit., 143 et seq. 2 Hutchinson Papers (Prince Soc. Pub., 1865), 48. 850 See Gardiner, New England's Vindication (1660; Gorges Soc. Pub., 1884), 3 1 - 3 2 . 351 2 Hutchinson Papers, 43, 47. 352 "As also that no appeale may be permitted from hence in any case civili or criminali, which would be such an intollerable and unsupportable burthen as this poore place (at this distance) are not able to undergoe, but would render authoritie and government vaine and uneffectuall, and bring us into contempt with all sortes of people" (ibid., 48). 353 He is reported by Samuel Maverick to have declared that before the colonists would admit of appeals to England they would deliver New England up to the Spaniards (Clarendon 349

Papers, 24, 30). See also the report of Mason et al. to the King (CSP, Col., ¡66¡-68, #230). 354 Ibid., # 4 5 , 50, 5 1 , 53, 80. 355 The issuance of the 1664 commission (infra) has been attributed to the perseverance of Maverick. See W. H. Sumner, History of East Boston ( 1 8 5 8 ) , 156. 358 See Clarendon Papers, 23, 29-30, 4 1 , where for obvious reasons the case is misrepresented. 357 Clarendon Papers, 26, 36. He also urged as a condition for continuation of the Massachusetts charter, "that they admitt of Appeales on iust and reasonable grounds" (ibid., 43). 358 CSP, Col., 1661-68, # 3 7 0 , 437. 350 ι Osgood, op. cit., 286; 3 ibid., 165-66; G. E. Ellis, The Puritan Age and Rule in the Colony of Massachusetts, 1629-1685 (1888),

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JURISDICTION

55

F i n a l l y , in A p r i l , 1664, a commission w a s issued by the K i n g to C o l o n e l Richard Nicolls, Sir Robert Carr, George Cartwright, and Samuel M a v e r i c k to exercise w i d e a n d varied p o w e r s in the several N e w E n g l a n d c o l o n i e s . 3 6 0 U n d e r the terms of this general commission a b r o a d p o w e r to hear all c o m plaints a n d appeals w a s b e s t o w e d ; 3 6 1 the exercise of the p o w e r in M a s s a c h u setts B a y w a s s o m e w h a t circumscribed by provisions in another c o m m i s s i o n a p p l y i n g to that colony a l o n e . 3 6 2 T h e commissioners a r r i v e d in Boston d u r i n g J u l y , 1664, a n d acquainted the G e n e r a l C o u r t w i t h the terms of their c o m mission. A s a result, in the f o l l o w i n g October an address of the court in s t r o n g t e r m s w a s f o r w a r d e d to the K i n g , c o m p l a i n i n g of deprivation of p o w e r a n d subjection to the w i l l of o t h e r s . 3 6 3 T h e commissioners, h o w e v e r , f o l l o w i n g the J u l y preliminary, departed the colony to attend to the conquest a n d pacification of N e w N e t h e r l a n d and then to effect a b o u n d a r y settlement b e t w e e n N e w Y o r k a n d Connecticut. U p o n the return of s o m e of the commissioners 477 et seq.; cf. i Sewel, History of the Quakers ( 1 8 1 1 ) , 472-76; 2 Besse, Collection of the Sufferings of the People Called Quakers ( 1 7 5 3 ) . 225-26. M 0 For the character of the personnel see 3 Osgood, op cit., 1 7 1 - 7 2 ; Kaye, op. cit., 8 1 - 8 3 ; 10 Mass. Hist. Soc. Proc. (ist ser.), 381-82. Nicolls alone of the four commissioners could boast of some legal training (Ε. A. Jones, American Members of the Inns of Court [ 1 9 2 4 ] , 164). Maverick mentioned the necescity of an able lawyer being sent as "there is not one in New England that pretends any thinge as to the knowledg of the Lawes of England" (Clarendon Papers, 36). * β 1 The commission carried "full power and authority to heare and receive, and to examine and determine, all complaints and appeales in all causes and matters, as well military as criminal and civil" (3 Doc. Rei. Col. Hist. N.Y., 64). Cf. 3 Osgood, op. cit., 183-84, that "the mild tone of their instructions had seemed to preclude such action [hearing appeals]." In some quarters the commission was stated to be one of oyer and terminer (4 Ree. Mass. Bay [Part II], 197; Washburn, Sketches of the Early Judicial History of Massachusetts Γ1840], 35). But compare the terms of the instant commission with that of an English commission of oyer and terminer in 1 Holdsworth, HEL, 669. It has also been asserted that "there can be no doubt but that the power of hearing and determining appeals was a violation of the charter, by which no such right had been reserved even to the king him« e l f (Kaye, op. cit., 87).

"23 Doc. Rei. Col. Hist. N.Y., 53- "You shall not receive any complaint of any thing done amisse by any Magistrate, except it appeares to be against their Charter, which is to regulate and bound all their actioqs; nor shall you interrupt ye proceedings in justice, by takeing upon you ye hearing and determining any particular right between party and party, but shall leave all matters of that nature to ye usuali proceedings in ye several! judicatories of ye country; except those proceedings be expressly contrary to ye rules prescribed by the Charter, or that the matters in difference doe arise from some expressions or clauses contained in some grant under our Great Seale of England: in all which you are to proceed according to justice, after a due examination of all matters and circumstances." 8β3 it w a s complained that instead of being governed by rulers of their own choosing and laws of their own making, they would be subject to the arbitrary power of strangers, proceeding not under established law, but according to their own discretions; that officials in executing laws would be subject to complaints and appeals and to the determinations of new judges, whereby government would be rendered void and of no effect (1 Hutchinson, op. cit., 446-47). The Earl of Clarendon replied in March, 1664/5, that it could not be presumed that the King had or would leave his subjects in New England without redress by an appeal to him when proceedings had been irregular and against the rules of justice {ibid., 450-51)·

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JURISDICTION

to B o s t o n i n J a n u a r y , 1 6 6 4 / 5 , t h e y f o u n d o p p o s i t i o n a r o u s e d a n d v a r i o u s i n v i d i o u s r u m o r s c i r c u l a t i n g c o n c e r n i n g the p u r p o s e s of the

commission.364

C o n c e i v i n g it necessary t o bolster their prestige b y e x t r a - M a s s a c h u s e t t s

Bay

action, three c o m m i s s i o n e r s t r a v e l e d t h r o u g h P l y m o u t h , C o n n e c t i c u t ,

and

R h o d e Island, h e a r i n g appeals a n d c o m p l a i n t s . 3 8 5 R e j o i n e d b y N i c o l l s in M a y , bit b y bit the c o m m i s s i o n e r s m a d e k n o w n t o the G e n e r a l C o u r t their special p u b l i c instructions f o r M a s s a c h u s e t t s . O n

a

p r o p o s a l of the c o m m i s s i o n e r s to h e a r the c o m p l a i n t of o n e J o h n P o r t e r , it w a s u r g e d that the e n t e r t a i n m e n t of s u c h c o m p l a i n t w a s a n i n f r i n g e m e n t o f the patent. A

c o n f e r e n c e w a s h e l d b e t w e e n a c o m m i t t e e of the G e n e r a l

Court

a n d the c o m m i s s i o n e r s o n the m a t t e r ; the c o m m i t t e e o f f e r e d to a c c o u n t f o r a n y p r o c e e d i n g s of the G e n e r a l C o u r t , b u t c h a r a c t e r i z e d as i n s u f f e r a b l e t h e desire that it stand o n a level w i t h a sentenced c r i m i n a l at the b a r of a t r i b u n a l n o t r e c o g n i z e d i n their c h a r t e r . 3 ® 8 T o other instructions it w a s protested b y the G e n e r a l C o u r t that h e a r i n g a n d d e t e r m i n i n g appeals f r o m its j u d g m e n t s w a s inconsistent w i t h the c o l o n y c h a r t e r . 3 8 7 A f t e r s o m e f u r t h e r d i s c o u r s e , the G e n e r a l C o u r t w a s a s k e d d i r e c t l y w h e t h e r it r e c o g n i z e d the a u t h o r i t y of the c o m m i s s i o n . 3 8 8 U p o n the r e t u r n of a n e q u i v o c a l a n s w e r the c o m m i s s i o n e r s 884 It was reported inter alia that the form of government would be interrupted by the admission of appeals (3 Doc. Rei. Col. Hist. N.Y.,

87). 365 A few trifling complaints were heard in Plymouth. In Rhode Island, where the inhabitants, including the governor, readily submitted to be tried by the commissioners, more complaints were heard. Some of these were ended, some referred to arbitration, some to the General Court; some of the latter were returned again to the commissioners for determination (3 Doc. Rei. Col. Hist. N.Y., 97). In Rhode Island, Samuel Gorton complained of Massachusetts "not admitting of any appeals to his majesty in any case" (Danforth Papers, 8 Mass. Hist. Soc. Coll. [2d ser., 1826], 68-69). 398 ι Hutchinson, op. cit., 208; Danforth Papers, 9 1 - 9 2 . At this conference the commissioners "endeavoured to proue by severall clauses in their charter, that appeals did belong to the King, and sayd they are tyed by their charter not to make lawes contrary to the lawes of England, now to hinder any caus from coming to the King's bench, or the Chancery is certainly contrary to the lawes of England, the King is judge of those 2 courts; but instead of causing them to come thither to answear, his Majesty had sent Commissioners hither for their greater ease etc."

(Clarendon Papers, 95). It was further demanded by the commissioners how the King could perform his duty of seeing justice duly administered in the colony if appeals were not made to him. As laws were to be reasonable and wholesome who should judge them to be so but the King. "Or who will not judge them to be nether wholesome, nor reasonable when they deny the king that great prerogative of hearing appeal«?" It was also urged that the colony was no more than a corporation, and that no corporation in England could refuse an appeal to the King (ibid., 96). Cartwright related further that "the commissioners also pleaded the submission of the 3 other colonies, who had suffered appeales to be made to, and determined by the Commissioners and yet had nether lost their charter, nor any of their priveledges granted them, nor were forced to quit their habitations nor had yet any cause to complayn" (ibid., 97). But in vain; the General Court had resolved on a course of conduct from which they could not be dislodged. 367 1 Hutchinson, op. cit., 209; Danforth Papers, 67. 368 Danforth Papers, 75. "His majesty sent us with commission to sit as a court of appeals, in these his majesty's dominions; but we are told, that the inviolable observation of your charter seems inconsistent with our hearing

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57

announced their intention of sitting the next day as a Court of Appeals to hear and determine a cause moved by one Thomas Deane and others, where the Governor and Company were defendants, and accordingly summoned the parties. 3 ® 9 The General Court met this challenge with a declaration proclaimed by trumpet proscribing the hearing. 370 Consequently the hearing was not held, and the commissioners terminated further negotiations, declaring that the matter was being referred to the King. 3 " 1 This stand of the colony in the matter of the appellate jurisdiction of the commissioners was set forth at some length in a justificatory narrative by the General Court. 3 7 2 The points elaborated upon in this narrative were the actions of the commissioners in the Porter and Deane episodes. It was related that although the charter granted full judicial powers, the commissioners had not executed a lawful sentence against a notorious offender (Porter) but afforded him protection until they could rehear and determine the case. 373 It was complained that although the charter was to be a sufficient discharge for putting laws into execution, the General Court and specific persons had been summoned before the commissioners to answer complaints involving rights between private parties and also the complaints of delinquents, 874 and furthermore that although the charter granted the colony legislative powers, the commissioners had declared that they would proceed to judgment in their appellate sessions according to their own discretion. 375 The committee had insisted that jury trial was a privilege of the subject, yet the commissioners had constituted a court of appeals without trial by jury and had stated that they and determining complaints and appeals." Therefore, the commissioners desired positive answer to the question "whether you do acknowledge his majesty's commission, wherein we are nominated commissioners to be of full force to all the intents and purposes therein contained." 369 3 Doc. Rei. Col. Hist. N.Y., 107; 1 Hutchinson, op. cit., 2 1 1 . The cause was that of Thomas Deane et al. against the Governor and Company, and Joshua Scottow (Danjorth Papers, 83). 370 ι Hutchinson, op. cit., 2 1 1 - 1 3 ; Clarendon Papers, 68-69. 871 ι Hutchinson, op. cit., 213. This sudden termination was alleged to have silenced about thirty petitions desiring justice against the colony authorities (3 Doc. Rei. Col. Hist. N.Y., III). 372 The narrative of the transactions with the royal commissioners is found in 4 Ree. Mass. Bay (Part II), 157-273.

373 Ibid., 2 2 7 - 1 8 . Compare the answer of Cartwright to the narrative on this point (Clarendon Papers, 93-94). 374 It was alleged that the commissioners had declared that they would not refuse complaints in cases decided more than twenty years earlier although the judges therein were dead (4 Ree. Mass. Bay [Part II], 228; cf. ibid., 196). 375 Ibid., 228. But see ibid., 197, where the commissioners when asked by what law they would proceed to judgment answered, "By the law of England." See further Cartwright's statement that the reason for such answer was that the commissioners were commanded by their eleventh instruction "to giue such reparations to Thomas Dean as upon the merritts of the cause, and by virtue of the said act of Parliament he ought to receiue. But if they had been to haue heard John Porters caus they would haue considered the laws of that colony" (Clarendon Papers, 97).

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would have no jury in any case that they heard. 376 It was also pointed out by Governor Bellingham that subjects were not totally without redress, since appeals lay from inferior to superior courts within the colony. 377 All these objections only served to obscure the underlying fact that it had been resolved from the first not to allow appeals to England. 37 8 In their report to the K i n g the commissioners made due mention of this recalcitrance on the part of the Massachusetts Bay government. 3 7 9 Charles II, affronted by the conduct of the colony, recalled the commissioners and ordered agents from that colony to appear in England for a full investigation of the matter. 380 After some debate on the matter, the General Court declined to send the requested representatives to England. 3 8 1 Since the energies and the interests of the home government were concentrated in other fields, no further steps were taken to bring Massachusetts Bay under royal control until another decade had elapsed. 382 3 7 8 4 Ree. Mats. Bay (Part II), 228. See also ibid., 197, where the commissioners are reported h stating that their commission was a commission of oyer and terminer and they would have no jury. Compare Cartwright: " T o the question, whether the Commissioners would use a jury or no, it was answeared If they were to hear a cause, where matter of fact was to be proved, they would use a jury. But in this case of Mr. Deans; where the fact was already proved, and confessed, they would use none" (Clarendon Paperi, 9 7 ; cf. ibid., 66; ι Hutchinson, op. cit., 208). Cartwright also pointed out that chancery causes did not require a jury, but added that "it did not concern them how w e would proceed in a tryall, when they were resolved before hand, that they would not be tryed by us" (Clarendon Papers, 105). It was also asserted that the commissioners had answered affirmatively to the question "whither, on their hearing of appeales from the sentence of those Courts, they would admitt any new evidences other than the former Court had presented to them at the first hearing thereof" (4 Ree. Mass. Bay [Part II], 197; ι Hutchinson, op. cit., 208). 3" Clarendon Papers, 62. 378 Ibid., 97, 105. " 9 3 Doc. Rei. Col. Hist. N.Y., n o ; CSP. Col., 1661-68, #1103.

In a royal letter to the colony in April, 1666, it was stated that their attitude indicated, despite their protestations of loyalty, that they believed "that his Majesty hath noe jurisdiction over them, but that all persons must acquiesse in their judgments and de380

terminations h o w unjust soever, and cannot appeale to his Majesty, which would bee a matter of such a high consequence as every man discernes where it must e n d " (1 Hutchinson, op. cit., 453). 3 8 1 In discussing the import of the King's order it was stated inter alia: " T h o u g h no appeal lies to his majesty, so to stop justice, but it may proceed to the uttermost, yet the king may accept any complaint, and require an answer thereto, so that our absolute power to determine must not abate the king's prerogative" (Danforth Papers, 1 0 0 - 0 1 ) . A t a General Court of October 10, 1666, various sentiments were expressed on the subject of sending agents to appear before the K i n g as ordered. Some urged that agents be sent with conciliatory gifts; if demand were made why the governor, Major Hawthorne and others did not appear, they were " t o plead with his majesty, shewing how inconsistent it is with our being, for any to be forced to appear to answer in a judicial way in England, to answer cither appeals or complaints against the country." But "this last proposal was obstructed by sundry, as being ruinous to the whole; and so nothing can be done" (ibid., 110). 3 3 2 Kaye, op. cit., 139; 3 Osgood, op. cit., 192; ι Edward Randolph, 42. For a contemporary discussion of the sovereignty of Massachusetts under the charter, written after the termination of the commission, see 46 Mass. Hist. Soc. Proc. (3d ser.), 285-301. For a 1671 comment of Edward Montagu upon the commission see 2 Harris, Life of Edward Montagu (1912), 339-40·

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59

THE NAVIGATION ACTS

T h e part played by the Navigation Acts in fostering an "appeal consciousness" among the English administrators should not be overlooked. Since enforcement of a government policy was involved, interest was generated over colonial judgments in seizures under the Acts, particularly in the matter of appellate remedies against unfavorable judgments. Investigation by English officials of the attitudes and practices of colonial governments and courts, including those touching appeals, was stimulated. Enforcement of the Acts provided a subject matter, hitherto largely lacking, which justified the expense and inconvenience of appellate proceedings in England. Enforcement also fostered the development of colonial admiralty jurisdiction, thus supplementing the jurisdictions subject to appellate review. Prompted by petitions of the Mason and Gorges heirs and by merchants w h o complained of the Massachusetts Bay attitude towards the Acts of Trade, the question of the relations between that colony and England was reopened by the English administrators in i676. 38S Wary of employing another royal commission, the crown dispatched Edward Randolph to Massachusetts Bay to summon agents for the colony to appear in England, ostensibly for the settlement of the claims of Gorges and Mason. 3 8 4 In his contacts with the Massachusetts Bay authorities Randolph soon discovered that the colony had not weakened its former stand on the question of the finality of its judgments. 385 This attitude was therefore represented by Charles' emissary on his return as one aspect of an attempt to assert sovereignty. 886 A solution of the appellate problem was advanced in the premature scheme of establishing a general government in N e w England with a fit judicature for the determining of differences. 387 In 1679 Randolph again arrived in N e w England, this time commissioned as collector, searcher, and surveyor of the customs. 388 In his attempts to enforce the Acts of Trade, Randolph met with small measure of success. This 3 Osgood, op cit., 309 « seq. In the instructions given to Randolph that he inform himself on certain matters during his stay in New England there is no mention of the question of appeals; see 2 Edward Randolph, 197-99· 3 8 5 Governor Leverett is alleged to have stated, in an interview with Randolph, "that all matters in difference are to be concluded by their final determination denying any appeal to his Majesty" (1bid., 205, 219). 8 8 9 Randolph reported, "that they have formed themselves into a Common Wealth, deneying any Appeals to England" (ibid., 266; cf. 383

884

ibid., 226, 254). For allegations of judicial bias, making appeals a necessity, see ibid., 231. Compare the counterallegations of the New England agents (3 ibid., 10). 387 Ibid., 33. On his return to New England, Randolph urged "that there is an absolute necessity of Erecting a Great Council 1 chosen out of the chiefest and best of every Colony with a President to which men may appeale from the severall Judicatures of Each Colony else They will never be quiet, nor then long till His Majesty send over a General Governor" (ibid., 57). 388 ι Edward Randolph, 102, 120.

RISE OF JURISDICTION lack of success is attributable to many elements of opposition. Extra-legal conduct, preying upon the want of strong executive power imparted to Randolph, prevented seizures. 389 Even when seizures were made and tried in the local courts, bench and jury openly opposed any enforcement of the hated Acts of Trade. 8 9 0 Randolph found former statements of the doctrine of "no appeal" turned into reality in those cases in which appeals were attempted. 391 This attitude appears to have been contagious, for the harassed collector also complained that the New Hampshire Council denied appeals to the King, 3 9 2 despite the express terms of the royal commission for settling the province. 393 Apparently Randolph was not certain of the scope and function of the appeal as an instrument of imperial control. Upon his return to London he submitted several queries to the Attorney General concerning the use of appeals. T h e Attorney General in one instance answered unfavorably as to the allowance of appeals in seizure causes, 394 but in another opinion he affirmed the ,8e Threats of force were made when Randolph attempted seizures, and his deputies were beaten or threatened {ibid., 7 1 - 7 2 , 7 6 ; cf. 3 Osgood, op. cit., 2 2 9 ) . 390 In ten trials at Boston, Salem, and Piscataqua, nine seizures were cleared by juries; in the tenth case a £ 10 fine to the colony was levied for firing upon the Union Jack (3 Edu/ari Randolph, 8 5 - 8 6 ) . Randolph was forced to deposit security to answer damages before seizures were tried (ibid., 92). He was refused the assistance of counsel (ibid., 7 0 ) . Juries were alleged to consist of merchants or masters of ships (ibid., 7 5 ) . Acts of Parliament were not considered in force unless received by act of the Massachusetts assembly (2 ibid., 3 1 5 , 3 1 9 ; 3 ibid., 60). Damages were given against the collector (ibid., 8 4 - 8 5 ) . 381 Randolph, in praying a quo warranto proceeding against the Massachusetts government, alleged that "that Government hath denied to grant Appeals to your Majestie in Councill as well formerly to your Majesties Subjects there inhabiting, as in the late causes relating to your Majesties own affaires" (3 ibid., 89; cf. ibid., 7 8 - 7 9 , 96). 302 Ibid., 107, 108. The council threatened to punish those appealing from them to the King. Cf. at a later date the reasons advanced by Governor Cranfield for suspending some of the council, i.e., refusal to admit appeals to the King and statements that no justice could be had at the Council Board in England by strangers (ibid., 2 5 3 - 5 4 ) . 3,3 The 1680 commission to John Cutt as president to administer the province with a

council contained provision that "it shall and may be lawfull from time to time, to and for all and every person and persons, who shall think him or themselves aggrieved by any sentence, Judgment, or Decree pronounced, given, or made (as aforesaid) in, about, or concerning the title of any land, or other reali estate or in any personall Action, on writ above the value of Í, 50 and not under, to appeal from such Judgment, sentence and Decree unto Us Our heires and successors, and Our and their Privie Councell, But with and under this caution and limitation; That the Appellant shall first enter into and give good security, to pay full costs, in case no relief shall be obtained upon such Appeal" (4 Thorpe, op. cit., 2 4 4 8 ) . 304 Randolph queried "whether seizures made of ships and their loading illegally imported into New England, brought to a Tryall and cleered by Jury upon Appeal in Court to His Majestie in Councill cannot bee brought to a new Tryall upon the place? what directions are neccssary for procuring the same, And how Juries, (who upon Tryall of Causes relating to His Majesties affaires, bringing Verdicts contrary to evidence and the Letter of the Law) ought to be proceeded against?" (3 Edward Randolph, 9 7 ) . Attorney General Sawyer was of the opinion that "where a verdict is given upon an Information upon a Seizure or other penall Law no Appeale lyes, and 'tis rare that a new Tryall is awarded unlesse some miscarriage bee proved upon the Defendant by tampering with the Jury, or the Court bee satisfied that the Verdict was given

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general right of appeal to the King in Council, on the basis of the Channel Islands precedents, and the right of the King to regulate such appeals.*95 Shortly thereafter Randolph was directed by the Lords of Trade and Plantations to lodge appeals at the Council Board against the proceedings of the Massachusetts courts upon his seizures.396 In August, 1681, appeals were lodged in fourteen seizure causes, and the respective respondents were ordered to appear before the King in Council to answer the appeals.397 There is no evidence of the appearance of any of these respondents, despite the stern sanctions threatened in the summoning Order in Council. But the colony was informed of the royal pleasure to admit appeals in all cases relating to the revenue and ordered to comply therewith. 398 When Randolph returned to N e w England at the end of 1681 and continued his career of seizures, he again encountered much opposition from the government and the populace. 399 In some cases colonial officials interfered with the effective prosecution of appeals; 4 0 0 in other cases appeals were flatly against plaine and direct evidence and the direction of the Court" (ibid., 99). In answer to another query of Randolph (ibid., 98), Sawyer was of the opinion that "all orders for the King to pay Costs might be appealed from to the King and Council, and upon such appeal the Council might order money unduly levied to bee restored" (ibid., 99). S9S Randolph questioned "whether that Government ought not to admitt of Appeal es to His Majestic before and after Tryalls had in their Courts by Jury or otherwise?" and, secondly, "whether in Appeales made there by His Majestie's Officers and other His Subjects, good security ought not to been taken to answer before His Majestie here in England, and what course must bee taken if security bee refused?" (ibid., too). To these questions Attorney General Sawyer replied that "there is no question but the Sovereignty remaining in the King, an Appeale doth lye to His Majestie in Councill as from Jersey and Guernsey, And His Majestie in Councill may give rules, in what Cases Appeales may bee allowed, and how prosecuted, and for what value, as hath been done in the case of Jersey and Guernsey, with consideration had to the greater distance of the place; for it would bee an infinite vexation to allow a Latitude of Appealing in any Case, or before His Majestie in Councill have settled Rules, onlesse it bee in some exorbitant Case, which may have influence upon the Government" (ibid., 101).

,ee I b i d . , 103. It was also noted that "their Lordships will report that Summons bee issued out to the persons concerned therein to attend in a competent time." 897 2 APC, Col., # 4 4 . The respondents, either in person or by their respective attorneys, were to appear within four months after due notice, if they were still in any of the plantations; if elsewhere, then within such time as was sufficient for them to give their attendance. »»»3 Edward Randolph, 112. But cf. the opinion of Attorney General Sawyer, supra, n. 394. 398 He returned as deputy to William Blathwayt, the surveyor and auditor general of the revenues rising in America for the New England colonies, excepting New Hampshire. He was also collector of the customs by royal commission (1 ibid., 148-49). 400 In the trial of the seizure of the Hope of Boston Randolph was cast on the ground that he had no warrant to seize the ship. "The Governor and Magistrate allowed his Patent sufficient Warrant and sent out the Jury three times, but they would not alter the Verdict. He appealed but that would not be granted tho' not absolutely denyed, till hee heard from the Agents his Majesties Pleasure therein" (3 ibid., 167). Randolph also complained that he was served with execution for ¿ 1 0 0 either to deliver the Swallow, which he had seized, or to pay ¿ 100, "this notwithstanding he has appealed to His Majesty in that Case as he

62

RISE OF JURISDICTION

denied, and it became necessary for Randolph to petition the King to allow the entry of appeals and to summon respondents in three seizures. 401 A t the same time the Massachusetts Bay agents in England were endeavoring to justify actions of the colony;

402

to the accusation that appeals were denied in

revenue matters, they intimated the burden upon the subject of unlimited appeals to the King. 4 0 3 Finding appeals unavailing, the collector had recourse to other remedies. In the seizure of the ketch George, when a verdict against the King was given contrary to the law and evidence, the jury was coerced into amending its verdict by a threat of attaint. 404 However, in May, 1683, Randolph, in obedience to an order, returned to England and was active in drawing up articles in support of quo warranto proceedings against the Massachusetts Bay Company. Inevitably the matter of appeal recalcitrance was included in these articles. 406 T h e quo warranto proceedings, however, were dropped, and scire facias for the repeal of the patent was substituted. It is difficult to state how important the matter of refusal of appeals was in this proceeding; at any rate, the denial of appeals is not enumerated in the Chancery decree vacating the charter. 406 That recalcitrance to conciliar review was not endemic to Massachusetts Bay may be seen from the fact that the Governor of Jamaica questioned his council in October, 1673, whether an appeal from an Admiralty Court sentence to the King or to a Court of Delegates should be received or not. T h e council unanimously declared that it would prove of ill consequence and has right to do by His Majesty's Order" (ibid., 183). It was also complained by Randolph "that notwithstanding his Appeals Ships are permitted to go away without giving security to stand a further Tryall" (ibid., 1 1 4 ; cf. ibid., 172, 175). 401 For the petition and appeal see ibid., 2045. However, this appeal is not entered in the Privy Council register. See also the list oí seizures in which allegedly there should have been condemnations, but the seizures were arbitrarily freed (ibid., 2 1 1 - 1 2 ) . 402 Randolph questioned "who would believe that during the tyme their agents are accounting for former contempts, they should be so daring as to denye appeales to his Majestic in Councill from their Courts" (ibid., 215). 403 Instructed "to represent that Appeals in all cases of His Majestie's Revenue would bee burdensome" (ibid., 202), the agents, Dudley and Richards, represented "that if without either restriction of the Sume or difficulty of the Case all matters Indifferendy may be by

the Officer or his deputy be removed from his Majestys Courts there and the Subject forced to Transport himselfe into this Kingdome of England it will force them to quitt their goods upon any pretense rather than Suffer Such Inconvenience and thereby wholly discourage all Trade in that his Majestys Plantation of which wee humbly pray His Majestys gratious consideration" (ibid., 199). *°*lbid., 217-18, 220, 258. Randolph proposed to proceed under 23 Henry VIII, c. 3 (An Act concerning perjury and punishment of untrue verdicts). 405 Enumerated were refusal of appeals to the King in Council in matters relating to the crown (3 Edward Randolph, 229); refusal to deliver copies of records in appeals before the King (ibid., 233); the claim of Massachusetts that the 1664 commissioners pretending to hear appeals was a breach of their privileges (ibid., 234). 408 242 MS Mass. Archives (3 Hutchinson Papers), 321-25.

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would tend to subvert the government if once admitted; furthermore, that there never had been any such precedent of an appeal allowed, either in Jamaica or in any of the King's dominions beyond the seas.40T THE RESTORATION APPELLATE SYSTEM FOR THE CHANNEL ISLANDS AND THE COLONIES

Having pursued the concatenation of recalcitrance to a logical stopping place, we must retrogress to pick up other narrative threads. One task facing Charles II and his Council upon the Restoration was the re-establishment of the appellate system for Jersey and Guernsey. Another was to provide an administrative system for the plantations. It shall be our task to show how attainment of these objectives ultimately resulted in the location of appellate jurisdiction over both Channel Islands and plantations in one body. Within a few months after the return of Charles II to England and his assumption of the rights and the duties of the crown, the question of Privy Council jurisdiction over Channel Islands matters was mooted.408 But it was not until January, 1660/61, that the first appeal from these islands was entered.40® The Interregnum and its disturbances were reflected by Orders in Council confirming judicial proceedings in the islands during that period, but permitting aggrieved parties to appeal within the usual time following the date of publication of the order. 410 These orders opened the conciliar floodgates to a rush of Jersey appeals. 411 The initial appeal presented for adjudication was first referred to lawyers, then after a hearing before the King in Council, to an ad hoc committee. Upon its report an issue of fact was ordered tried in Jersey.412 Shortly, however, to cope with the large number of appeals 407 CSP, Col., 1669-74, # 1 1 5 0 . This declaration may be explained by the doubts surrounding the proper appellate jurisdiction over colonial vice-admiralty courts—a doubt not yet dispelled decades later. See infra, p. 177 et seq. 4 0 ' The petition of two merchants was referred to the consideration of Wiseman, the King's Advocate, to inform the King whether any affairs concerning the inhabitants of the islands of Jersey and Guernsey had been or might be determined by any court of judicature in the kingdom but by his Majesty's Privy Council (PC 1/54/67). 4 0 9 Dumaresq v. de Carteret (PC 2/55/84). 4,0 PC 2/55/175 (Guernsey), 178 (Jersey). 4 1 1 Twenty-four such appeals are entered within six months of the date of the order; the majority in one day, August 7, 1661 (PC 2/55/313-26). Guernsey appellate business was practically nonexistent; for the first mention see Rozell v. Bouillon (PC 2/55/366).

4 1 2 Le Breton v. Esnouf. Examination of the appeal was referred to Dr. Zouch, judge of the High Court of Admiralty, Dr. Mason, Dr. Walker, or any two of them, who were authorized to summon the parties before them and upon hearing the cause, to state the matter of fact and their opinion thereon to the Board (PC 2/55/145). The Board then ordered the sentence referred to four referees to settle or certify the cause to the Board. This order was objected to by appellant, so the King in Council ordered the parties to attend the Board, with counsel if desired, for hearing and determination of the appeal (PC 2/55/318). Counsel were heard by the Board, "but in regard the case betweene them was not truly stated," a further hearing was referred to the Lord Privy Seal, the Lord Chamberlain, the Earl of Anglesey, Lord Holies, the ViceChamberlain, Secretary Nicholas, and Secretary Morice. Dr. Mason and Dr. Walker, the

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a r r i v i n g f r o m J e r s e y , a c o m m i t t e e w a s e s t a b l i s h e d o n N o v e m b e r 8 , 1 6 6 1 , to hear and

to d e t e r m i n e s u c h appeals.·113 S e v e r a l m o n t h s later

(February

5,

1 6 6 1 / 2 ) a c o m m i t t e e f o r G u e r n s e y appeals w a s established on s o m e w h a t diff e r e n t t e r m s . 4 1 4 A s f a r as c a n be d e t e r m i n e d f r o m the P r i v y C o u n c i l r e g i s t e r s , t h e L o r d P r i v y S e a l a n d t h e V i c e - C h a m b e r l a i n w e r e the m a i n s t a y s o f b o t h committees; n o other designated m e m b e r s attended r e g u l a r l y . 4 1 5 T h e s e comm i t t e e s a r e r e p r e s e n t a t i v e o f the g r e a t p r o l i f e r a t i o n of C o u n c i l w h i c h took place between 1660 a n d

committees

1667.416

I n F e b r u a r y , 1 6 6 7 / 8 , i n a n e n d e a v o r to s t r e n g t h e n the c o m m i t t e e

system,

f o u r s t a n d i n g c o m m i t t e e s of the C o u n c i l w e r e established—for f o r e i g n affairs, for military a n d n a v a l matters, for trade, and for grievances a n d complaints. T h e C o m m i t t e e f o r T r a d e w a s t o c o n s i d e r w h a t e v e r r e l a t e d t o the f o r e i g n plantations, I r e l a n d , S c o t l a n d , a n d Jersey a n d G u e r n s e y . It w a s also f u r t h e r o r d e r e d t h a t " t h i s C o m m i t t e e c a l l i n g u n t o t h e m his M a j e s t y s A t t o r n e y

Gen-

e r a l i , o r else h i s M a j e s t y s A d v o c a t e , d o f r o m h e n c e f o r w a r d h e a r e all C a u s e s t h a t b y w a y o f A p p e a l e c o m e f r o m t h e Isles o f J e r s e y a n d G u e r n s e y . " surviving referees, were to have notice to attend ( P C 2 / 5 5 / 3 3 8 ) . Upon a committee report that certain factual issues should be tried below, an Order in Council issued to that effect (PC 2/55/348). 41 > " F o r as much as appeales are many tymes brought for delayes to hinder justice; it is thought fitt and ordered, that no appeale shall be allowed in any case under twenty pounds sterling; and that all appeales whatsoever shall be prosecuted between the beginning of Easter terme and the end of midsomer terme and not otherwise. And it was further thought fitt and ordered, that the Lord Privy Seal, the Earl of St. Albans, Governor for the island of Jersey, Mr. Vice-Chamberlain, Mr. Sec. Nicholas, Mr. Sec. Morice or any two of them, calling unto them his Majesty's Attorney General and Sollicitor General and his Majesty's Advocate, or any one of them bee hereby authorized a Committee for the hearing and determining of all appeales to be brought as aforesaid, and in case the person appealing shall not presente his appeal with effect before the said Lords Committee within the time before limited, then the defendant to be dismissed with good damages for his unjust molestation, and such further penalty as their Lordships shall thinke fitt" (PC 2 / 5 5 / 4 3 7 ) . In November, 1666, the Lord Chamberlain of the King's Household and Lord Berkeley were added to the committee ( P C 2 / 5 9 / 2 2 5 ) . 4,4

N o appeals were to be allowed under the

417

But

value of forty pounds in goods or chattels and forty shillings of yearly rent of inheritance; all appeals were to be prosecuted with effect within one year and a day after sentence below. The committee was to consist of the Lord Privy Seal, Lord Hatton, governor of Guernsey, the Vice-Chamberlain, Secretary Nicholas, and Secretary Morice or any two of them. The provisions for calling in the Attorney General and Solicitor General and the King's Advocate and for sanctions for nonprosecution were the same as for Jersey (PC 2/55/538). 415 The difficulty of discovering the working personnel lies in the fact that many committee orders were entered under Council headings, so that the committeemen present when the order was issued cannot be determined. At practically every meeting the Lord Privy Seal and the Vice-Chamberlain were present. In about one-half the recorded meetings a third member was present; larger attendance was rare. For practical purposes the two separately named committees appear to have been one. 410 Seventy-two temporary and standing committees have been listed as appointed for the years 1660-67 (2 Turner, op. cil., 189; Evans, The Principal Secretary of State [ 1 9 2 3 ] , 2 3 3 ) . 417 Order in Council of February 12, 1667/8 (PC 2 / 6 0 / 1 7 6 ) , printed in part in 1 APC, Col., # 7 4 7 . This committee consisted of the Lord Privy Seal, the Duke of Buckingham, the Duke of Ormond, the Earl of Ossory, the

RISE OF J U R I S D I C T I O N

65

the creation of these committees did not prevent the formation of other ad hoc committees for Channel Islands references.418 When this Committee for Trade was undermined by the appointment in 1670 of select Councils for Trade and for Plantations,418 a separate committee for Jersey and Guernsey probably handled insular matters.420 In 1679 another reformation of the conciliar committee system took place, by which the Council was reduced in numbers to thirty, and it was ordered that the Committee for Trade and Plantations be likewise a "Committee for the affairs of Jersey and Guernsey." 4 2 1 After the Revolution of 1688 the same persons who composed the Committee for Trade and Foreign Plantations were constituted and appointed a Committee for the affairs of Jersey and Guernsey.422 No further important institutional change is found until the establishment of the Board of Trade in 1696. Turning now to the administration of the plantations, we find that a conciliar Committee for Trade and Plantations was appointed on July 4,1660. 428 But in December of the same year matters of colonial administration were segregated and delegated to an advisory Council for Foreign Plantations, to which merchants and "colonial experts" were appointed.424 Early in 1665 colonial administration reverted to conciliar hands and was subdivided among numerous committees.425 In February, 1667/8, as we have seen, plantation Earl of Bridgewater, the Earl of Anglesey, the Earl of Lauderdale, Lord Arlington, Lord Holies, Lord Ashley, the Comptroller, the ViceChamberlain, Secretary Morice, Sir William Coventry. The usual day of meeting was to be every Thursday in the Council Chamber and oftener as the presiding officer directed; three or more were to be a quorum. After the orders on appeals had been prepared in due form by the Clerk of the Council they were to be read and approved at the Council Board before being signed, so that they could receive the approbation and authority of the whole Council "which before used to passe distinctly from the Committee only by a derivative power from the Board." Compare the earlier committee regulation of January 3 1 , 1667/8, which omitted mention of hearing of appeals as a committee function (Andrews, British Committees, 88-90). In October, 1668, Sir John Trevor, principal Secretary of State, was added to all committees (PC 2/61/67). 418 On May 24, 1665, a committee was appointed to consider the petition of the inhabitants of Guernsey against Governor Hatton and his answer thereto (PC 2/58/149). On July 22, 1668, a petition of Jerseymen was

referred to the Earl of Craven and the ViceChamberlain (PC 2/60/394). «1» Andrews, British Committees, 97. 420 See PC 2/65/74; 3 Turner, op. cit., 200201. 421 PC 2/68/26. For composition of the committee, twenty-two in number, see 1 APC, Col., pp. 819-20. The reform failed in its main purposes, but it served to keep reduced the number of Privy Councilors; see 2 Turner, op. cit., c. xvii; Davies, Council and Cabinet, ¡679-88, 37 EHR, 47-52. 422 PC 2/73/21 (February 26, 1688/9). For composition of the committee see the February 16, 1688/9, Order in Council (PC 2/73/8; CSP, Col., /6S9-92, # 1 7 ) . Lord Lumley was added to both committees by the February 26 order. Lord Godolphin was added to all committees on November 20, 1690 (PC 2/74/56). The Earl of Bridgewater was appointed to the Committee for Trade and Plantations and the Committee for Ireland in May, 1691 (PC 2/74/172). But he also attended meetings of the Committee for Jersey and Guernsey. 423 ι APC, Col., # 4 8 4 ; 3 Doc. Rei. Col. Hist. N.Y., 30. 424 Andrews, British Committees, 67. 425 Ibid.. 79-80.

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matters and Channel Islands affairs were delegated to one conciliar committee.426 In July, 1670, the earlier advisory Council for Plantations was revived 4 2 7 and in September, 1672, it was strengthened by the addition of jurisdiction over matters of trade.428 In December, 1674, the commission of this body was revoked, and plantation affairs reverted to the care of the Privy Council Committee for Trade and Plantations.429 Then in February, 1674/5, Charles by commission confirmed jurisdiction of these matters in that committee.430 As we have already seen, in 1679 this committee also became a Committee for Jersey and Guernsey. 431 None of these transient schemes of colonial administration made provision for exercise of an appellate jurisdiction over colonial courts, yet this jurisdiction was not for this reason declined. Although there was much agitation in New England concerning the right of appeal to the King in Council or to Parliament, the first "appeals" came from the West Indian possessions. These "appeals" were not true appeals, as they came to be known later, but were rather "petitions in the nature of an appeal." 4 3 2 For convenience of terminology we shall refer to this petitionary species as appeals. There is no evidence that the Council Board conceived of itself as acting in a judicial, rather than an administrative capacity in handling them. That in several cases relief was sought against an executive acting in a judicial capacity may have obscured the nature of the function performed. It should be noticed, however, that the various Restoration committees and select councils established to deal with plantation matters did not exercise jurisdiction in appellate matters until 1672.433 Judicial determinations were thus largely confined to the Privy Council itself and to colonial executives by delegation therefrom. There was no fixed procedure employed by the Council Board to settle these early causes. In a 1666 appeal from Barbados, Middleton v. Chamberlain, the Board after reading the petition of the appellant ordered Lord Willoughby, the Barbados governor, to examine the matter and certify to the Council the true state thereof, together with the laws and customs of that plantation in such cases.434 Upon return of the report of Lord Willoughby the Council referred 424

Supra, n. 407. Andrews, British Committees, 97. 428 ¡bid., 106-7. 429 3 Doc. Rei. Col. Hist. N.Y., 228. 430 Ibid., 229. 431 Supra, p. 65. 482 For contemporary use of this terminology see Smith v. Smith (CSP, Col., 1669-74, #1146). 433 A Committee for Hearing Plantation Appeals may have existed (see Andrews, British Committees, 8o), but we have seen no evi· 427

dence of or reference to its operation. Middleton v. Chamberlain (PC 2/59/198). It does not appear from what court the appeal was taken. The appellant alleged that Chamberlain sat on the bench at the trial, that respondent's brother was the jury foreman, and that the rest of the jury were "friends and creatures of their own procuring." But it is difficult to reconcile the latter part of this allegation with the statement that many of the jurors objected before judgment, but could not be heard. No question could arise con-

134

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67

it to the Solicitor General for his opinion, since there was "much matter of law therein." 436 His report was read, approved, and ordered to be communicated by Willoughby to the Barbados judges, signifying the royal pleasure that in any new ejectment brought by appellant the proceedings were to be according to the report of the Solicitor General.436 In Vines v. Collins, in 1668, Lord Willoughby was directed by the Council to consider the allegations of a petition from Barbados complaining of a wrongful condemnation in the Admiralty Court, and if sustained, to appoint a time for a rehearing of the whole matter.437 In Bradbourne v. Beaf{e, in the same year, a petition complaining of a judgment based upon an ex parte report of auditors was ordered sent to Willoughby to do justice therein. If the complaint appeared well grounded and no relief had been afforded, the Council was to be informed of the reasons thereof, that further order might be made upon application.438 In Middleton v. Chamberlain we find recognition of the practical rule that colonial judicial proceedings should not be judged by English standards.439 In some cases, however, the Council Board itself heard causes. In a Maryland case, following the procedural preliminaries of a petition, answer, and reply thereto, the litigants were heard by the King in Council. After listening to counsel for the petitioner and for Lord Baltimore, the proprietor of Maryland, another hearing was appointed at which Charles Calvert, the deputy governor who had condemned the ship in question, was heard in answer to the petitioner's allegation.440 At the first hearing the Council was of the opinion that the sentence was erroneous, but upon the second hearing the condemnacerning the patent making no provision for appeals ( i MS Coll. Letters, Patents, Charters and Commissions Relating to Trade and Foreign Plantations, 355 [ L . C . ] ) , since the patent of the Earl of Carlisle had been previously assumed by the crown (Harlow, History of Barbados, 1625-85 [ 1 9 2 6 ] , 131— 32; Williamson, The Caribbee Islands under the Proprietary Patents [ 1 9 2 6 ] , 2 1 1 - 1 2 ) . 435 PC 2 / 6 1 / 4 2 2 . 438 PC 2/62/49. 437 PC 2/60/147. Appellants complained that their ship Hopewell had been condemned by Henry Willoughby, Deputy Governor of Barbados, by private order contrary to admiralty law, that appellants being at a distance failed to take their appeal within fifteen days and were thus barred from an appeal; a rehearing before Lord Willoughby was therefore prayed. 438 PC 2 / 6 1 / 6 8 ; CSP, Col., 1661-68, #1852. 438 In his report in Middleton v. Chamberlain (supra, n. 435) Solicitor General Finch stated that certain errors were assigned by the trustee

of the appellant, but were not heard, "and I concerne that they were only Errors in forme, and ought not to weigh, if they had been heard, it being impossible that the Pleadings and Entryes at Barbados should be so exact in forme as the Pleadings in Westminster Hall" {PC 2/62/49). See also CSP, Col., 1669-74, # I I 2 > where it was asserted that judicial proceedings in Barbados should be summary, without formality, since it was impossible that proceedings there should be the same as in England. In connection with this attitude, note the hostility to the legal profession expressed in the Jamaica rules of court (ibid., #604 I). 440 Gookin v. Calvert (PC 2/60/256, 305, 356, 369). The cause involved the condemnation of appellant's ship for violation of a Navigation Act, 1 5 Charles Π, c. 27. For the proceedings in the Provincial Court in January, 1 6 6 5 / 6, against the Hopewell see 49 Md. Archives, 560—63. For sale of the ship following condemnation see 57 ibid., 10.

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tion was upheld, since appellant failed to prove that Calvert had licensed the ship to trade in Maryland. 441 The Maryland charter contained no appeal reservation, 442 and normally appeals from the Provincial Court were made to the Upper House of the General Assembly, 443 but apparently no opposition was made to the jurisdiction of the King in Council in this instance. In a 1672 Barbados cause, respondent was given the alternative of a rehearing before Lord Willoughby and some of the Council of Barbados or attendance on the King in Council for decision in the cause. 444 In two 1672 cases the Council for Foreign Plantations was regarded as the body to which application should be made to secure a representation to the King advising relief in cases of unlawful seizure. 445 But no authority is found in the instructions of that Council for exercise of such jurisdiction.449 After the establishment of the initial Council for Trade and Plantations, in September, 1672, some causes were referred by the Privy Council to this body to consider and report.447 This appears to have been ad hoc supplementation of the standing instructions of this body. 448 The available evidence indicates that determinations of this body were not reached in a manner associated with appellate judicial hearings. There is nothing to indicate that both parties were heard on appeal, and certainly the consideration of a cause was not restricted to any record made in the court below. 449 It would appear that an effort was PC 2 / 6 2 / 2 1 8 , 246. Cf. the earlier complaint from the colony that, "appeals to his Royall Majesty into England [were] termed criminali and denyed" (5 Md. Archiva, 139). 442 3 Thorpe, op. cit., 1677. 443 ι Md. Archives, 481, 5 0 9 - 1 1 , 5 1 3 - 2 2 , 5 2 7 30; 2 ibid., i l , 1 3 - 1 4 , 33, 59-δο· 444 Maynard v. White (PC 2/63/258). If he desired the latter alternative, White was to give security to appear and accept the decision, and to attend the King in Council within three months after notice. Cf. in connection with this cause CSP, Col., 1669-74, #349, 843; ibid., 1675-76, # 3 9 6 . 445 Petition of Clugstone et al. complaining of the seizure of the ship James by Sir Charles Wheeler at Nevis (CSP, Col., 1669-74, # 8 1 3 ) . Petition of Knight et al. concerning the seizure of the William and Nicholas by Wheeler at Anguilla (ibid., # 8 2 3 - 2 4 , 853). 448 See Andrews, British Committees, Appen. II. 447 Rabba Couty v. Beeston (CSP, Col., 166974, # 9 6 8 , 999) concerning the ship Trial condemned by a Nov. 23, 1 6 7 1 , sentence of the Jamaica Vice-Admiralty Court under authority of an act of Parliament, on finding 441

that owner-petitioner was not a denizen; Smith v. Smith (PC 2/64/45) in which petitioner John Smith complained that by jury ignorance or corruption a verdict and judgment had been obtained against him in Nevis during his absence, and prayed an order to stay execution or award restitution and that Thomas Smith be ordered to England so that both parnés might be heard before the King in Council, petitioner being willing to pay costs if judgment went against him. The latter petition was referred to the Council for Trade and Plantations to examine and report what was fit to be done for petitioner's relief (CSP, Col., 1669-74, #"07. 1136). 448 See Andrews, British Committees, Appen. III. 448 In Rabba Couty v. Beeston, the Council for Trade and Plantations perused an exemplification of the sentence, heard Beeston who had rendered the sentence, and found that the sentence was grounded on the presumption that Couty, a Jew, was accounted a foreigner. But by certificates obtained by appellant from Governor Lovelace of New York after the trial below, it appeared that Couty had lived as a free burgher for several year*

RISE OF JURISDICTION

°3· The "Admiralty Journal" is in Catalogue of Naval MSS in the Pepysian Library, 57 Navy Record Soc., 45, 1 2 1 , 249, 253 (as to James' authority), 633 (as to royal reservation of right). 92

Specimen Stuart colonial vice-admiralty commissions are in 2 Pub. Col. Soc. Mass., 187 (Willoughby, Barbados); 199 (Dudley,

New England); 201, 203 (Andres, New England). The 1678 commission of Edmund Andros is in 2 Book, of Patents, 1 4 1 (N.Y. Secretary of State). This patent opens with a recital of James' plantation jurisdiction. It is not completely enrolled, but so far as copied corresponds with Lord Willoughby's. Dongan's royal commission of 1686 imparting viceadmiralty powers is in 3 Doc. Rei. Col. Hist. N.Y., 377. Andros' Dominion gubernatorial commissions are in 2 Pub. Col. Soc. Mass., 44, 57It should be noted that the source of gubernatorial authority was the subject of debate in January, 1677/78, when the Lords Committee considered the 21st article of the Earl of Carlisle's instructions as to the power of viceadmiral and of erecting courts of admiralty. The question arose whether said powers should be received from the King or from the Duke of York. It was finally agreed that Carlisle by commission from the Duke to be vice-

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For some years to come colonial admiralty jurisdiction depended upon two instruments, the governor's commission and the commission issuing from the Admiralty itself. After the passage of the Act for Preventing Frauds the question of the more effective enforcement of the navigation laws led to a recanvassing of the proper constitution of colonial admiralty administration and the decision to place the commissioning in the Admiralty. This becomes the rule during the eighteenth century, and very shortly after 1697 the clause conferring the office of vice admiral upon the colonial governors is dropped from the gubernatorial commissions.93 The form of vice-admiralty commission used by the last Stuarts contains a clause saving the right of everyone to appeal to the Lord High Admiral or "our Lieutenant the Commissioner General or Special by us constituted or appointed." In the face of this curious jurisdictional arrangement, the question whether or not there was any appeal possible to the King in Council or to the High Court of Admiralty from the sentences of the vice-admiralty courts established under these patents was perplexing. Sir Thomas Exton, High Court of Admiralty judge, being consulted on the problem in 1686, was of the opinion that strictly speaking there was no appeal from Acts of Trade condemnations in colonial vice-admiralty courts, but that the King might speciali gratia admit complaints against such condemning judgments. He stated that he had seen other unjust decisions in other colonies, but since no appeal lay to him he could only advise a petition to the King. 94 Sir Richard admiral was sufficiently empowered to erect courts of admiralty and to exercise the place of vice-admiral without any additional authority. Yet for the better notification of this power it was agreed to insert a clause in the royal instructions as to exercising all powers of the vice-admiral according to such commissions, instructions, and authority as were received from the Duke of York (CO 3 9 1 / 2 / 197, 198). 83 The documents on the reorganization are in 2 APC, Col. # 6 3 5 ; CSP, Col., 1696-1699, # 1 0 7 (presentment of the Commissioners of Customs referred to "Council of T r a d e " ) ; # 142 (Council of Trade's report, Aug. 1 3 , 1696, favorable to establishing vice-admiralty courts); # 5 1 1 (second report, Dec. 1 7 , re extension to proprietary colonies); #405 (Admiralty report, Nov. 1 9 ) ; # 4 6 6 (report of the Attorney General, Dec. 4. favorable to crown erecting admiralty courts in proprietary colonies); # 6 0 6 (petition from proprietors for vice-admiralty commission, Jan. 2 1 , 1696/7).

The two-commission system had not been disturbed after the Revolution of 1688. It is also to be noticed that Bellomont's gubernatorial commission for New York, sealed June 18, 1697, after the presumable settlement of the vice-admiralty issue (4 Doc. Rei. Col. Hist. N.Y., 266) still contained the viceadmiralty clause, whereas the patent of the same day for the governorship of Massachusetts Bay did not (2 Pub. Col. Soc. Mats., 76). Lord Cornbury's gubernatorial commission of 1 7 0 1 still has the vice-admiralty clause (Misc. MSS Cornbury, N Y H S ) , but Hunter's of 1709 has not (5 Doc. Rei. Col. Hist. N.Y., 92). See also infra, n. 97. 94 CSP, Col., 1685-88, # 9 3 1 . Exton justified appeals on the grounds that they would cause colonial courts to follow rules of law more carefully and administer justice impartially, and that lack of appeals would deprive owners living in England or Europe of their defenses, having no knowledge of the proceedings until after condemnation.

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LORDS

COMMITTEE

91

Raines, h o l d i n g the s a m e j u d i c i a l position, also w a s of the o p i n i o n , in 1 6 8 7 , that the H i g h C o u r t of A d m i r a l t y w a s n o t a court of appeal a n d that n o relief could be obtained a g a i n s t a n a d m i r a l t y c o u r t c o n d e m n a t i o n in the L e e w a r d Islands, except b y exercise of the r o y a l p r e r o g a t i v e . 9 5 U p o n this o p i n i o n , a n appeal to the K i n g i n C o u n c i l w a s a l l o w e d the r e c l a i m a n t in the A n t i g u a Vice-Admiralty Court.96 A f t e r the R e v o l u t i o n of 1 6 8 8 the patents issued to c o l o n i a l v i c e - a d m i r a l s reserved an appeal f r o m a n y d e f i n i t i v e sentence or interlocutory decree to the H i g h C o u r t of A d m i r a l t y of E n g l a n d . 9 7 W a s it possible in the f a c e of these patents still to a p p e a l to the K i n g i n C o u n c i l ? I n 1 6 9 5 the q u e s t i o n w a s p u t to the A d v o c a t e G e n e r a l a n d the H i g h C o u r t of A d m i r a l t y j u d g e as to w h a t b o d y an appeal w o u l d lie to f r o m a B a r b a d o s V i c e - A d m i r a l t y

Court

judgment.

T h e s e officials w e r e of the o p i n i o n that the a p p e a l lay to the K i n g in C o u n c i l , 85 CSP, Col., 1685-88, # 1 2 8 0 . However, it should be noted that the High Court of Admiralty had exercised appellate jurisdiction over the English vice-admiralty courts at án earlier period; see ι Select Pleas in the Court of Admiralty (Seiden Soc. Pub., ed. R. G. Marsden, 1897), 200-201, lxv, lxxii. See also 2 Browne, Compendious View of the Civil Law and of the Law of the Admiralty (1802), 490-91, who seemingly bases this appellate jurisdiction on 8 Eliz., c. 5, which is not apposite. It was also contemporaneously held that appeals lay from all sentences, interlocutory decrees and grievances of any vice-admirals to the High Court of Admiralty (Clerke, Praxis curiae admiralitatis Anglice [1722], 53). See also the vice-admiral patent reserving a right of appeal to the High Court of Admiralty in Baker, The Office of Vice-Admiral of the Coast (1884), 50. This eighteenthcentury patent is said scarcely to vary from the older patents (ibid). At this period appeals also lay from the Irish vice-admiralty courts to the High Court of Admiralty of England (Crump, op. cit., 103-4, x6i ; 2 Wynne, Life of Sir Leoline Jenkins [ 1 7 7 4 ] , 788; PettySouthwell Corres., 1676-87 [ 1 9 2 8 ] , 66). Crump states that the ambiguity as to the appellate jurisdiction over the colonial viceadmiralty courts was caused by the separation of the Irish and colonial establishments from the English by the Test Act of 1673 (Crump, op. cit., 103), but this explanation fails to account for the fact that Irish vice-admiralty appeals were still carried to the High Court of Admiralty in England (ibid., 1 6 1 ) . 98 A ship seized, condemned, and purchased

by Captain St. Loe in the Antigua ViceAdmiralty Court arrived in England and was arrested there at the owner Kirwan's suit; possession was decreed the owner by the High Court of Admiralty. These proceedings altering possession as decreed in Antigua were considered highly irregular by the Lords Committee; possession was therefore ordered restored to St. Loe, and an appeal to the Council Board allowed Kirwan (Kirwan v. St. Loe, PC 2/72/468). 97

The change from the Stuart formula mentioned in the text supra, p. 90, reflects the alteration in royal prerogative resulting from the Revolution. Furthermore, the Admiralty was in commission until 1702, when Prince George of Denmark was made Lord High Admiral (cf. 2 Wm. & Mary, Sess. 2, c. 2, An Act Concerning Commissioners of the Admiralty). Sir William Phips' Vice-Admiralty commission of Dec. 29, 1691, is the earliest example of the clause we have seen (2 Pub. Col. Soc. Mass., 206). It appears in Bellomont's 1698 commission (ibid., 2 1 6 ) and is in the subsequent commissions for Massachusetts Bay, See also Cornbury's commission (1700) in 1 Benedict, American Admiralty (5th ed., 1 9 2 5 ) , 7 9 1 ; Hunter's commission ( 1 7 1 5 ) in 5 Doc. Rei. Col. Hist. N.Y., 424. This saving clause is apparently standard and is also inserted in governors' commissions to vice-admiralty judges; cf. the Morris (N.Y.) commissions of 1738 and 1762 ( 1 Benedict, op. cit., 810, 8 1 6 ) ; and that to James Michie (So. Car.) of 1753 (Jameson, Privateering and Piracy [ 1 9 2 3 ] ,

519)·

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since the court below which tried the ship was constituted by the governor's authority, not by virtue of any power committed by the Lords of the Admiralty.98 It should be noted that in addition to review in England of vice-admiralty court sentences, there was some degree of internal review possible in certain colonies." In December, 1664, Sir Thomas Modyford, Governor of Jamaica, appears to have heard an appeal from a vice-admiralty court sentence.100 This same governor, in 1670, stated that from the sentence of the admiralty court established at Port Royal an appeal lay to the governor, whose sentence was definitive. 101 In December, 1675, it was observed that an appeal lay from the commissioners of the admiralty court to the governor as vice-admiral.102 But in a September, 1683, relation of the state of Jamaica under Sir Thomas Lynch it was stated that "the Council" heard appeals out of the admiralty court, although few were taken. 103 It may be inferred that such an internal appeal might be utilized to prevent recourse to England; we have already seen the reception accorded Lieutenant-Governor Lynch's proposal to the Council whether an appeal from his sentence in the Admiralty to the King or Court of Delegates in England should be received or not.104 A decade later, an attitude is revealed in New York that, logically pursued, would permit an appeal to the King in Council in admiralty causes under the terms of the royal commission. In this colony the Vice-Admiralty Court, on September 24, 1687, condemned one-quarter part of the ship Beaver to answer a judgment of ¿49 plus / 1 3 / 1 5 costs.105 This was upon a libel and complaint of Frederick Phillipse and other part owners against Henricus Selyns et itx. for wrongful detention of the Beaver in Holland. 100 Selyns then petitioned Governor Dongan and the Council praying an appeal from this judgment to the Governor and Council, but, the sum being under . £ 1 0 0 , the petition was rejected.107 Apparently the gubernatorial commission directing allowance of appeals in cases of error "from our courts of New York" in "civil causes" over ^100 sterling was interpreted to cover admiralty appeals.108 98 Report of May 30, 1695, of Edward Ward, High Court of Admiralty judge, and Charles Hedges, Advocate General ( C S P , Col., 1693Φ . #1862). " C o m p a r e Crump, op. cit., i 6 i ("The only way then of getting redress from the sentence of a colonial admiralty court was by petition to the king in Council"). 100 2 Wynne, op. cit., 742. 101 ι Journals Assembly Jamaica ( 1 8 1 1 ) , Appendix, 22. It is uncertain when this review power was first established. An October, 1664, statement by Modyford of the condition of the island makes no mention of it in connection with the admiralty court establishment (ibid.,

21).

102

Ibid., 40-41, observations on the present state of Jamaica by one Cranfield. 103 Ibid., 46. Presumably the governor sat with the council; at least he possessed a commission as vice-admiral. 104 2 MS Mins. Jamaica Council, sub. Oct. 1 3 , 1673; CSP, Col., 1669-74, #"5°· 105 34 N.Y. Col. MSS (Part II), 73. 108 For the libel see ibid., 66; for the answer, ibid., 68; for the reply, ibid., 69. 107 35 ibid., 106; 5 MS Mins. N.Y. Council, 208 (Oct. 8, 1687). 108 3 Doc. Rei. Col. Hist. N.Y., 379. The commission of Dongan to Matthias Nicolls as judge of the Admiralty Court made no mention of appeals (34 N.Y. Col. MSS [Part //], 9).

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93 The importance of such an interpretation is that it seemingly resolved the question as to the final appellate tribunal. It specifically granted an ultimate appeal to the King in Council from a vice-admiralty court sentence. Furthermore, it made it highly unlikely that an appeal would be taken from the Governor and Council to the High Court of Admiralty. Yet chapter and verse for such confusion of appellate jurisdiction is found in the proceedings following upon a seizure made by Jahleel Brenton in New England under 15 Charles II, c. 7, and a condemnation by the Court of Assistants at Boston in February, 1689/90. Lawrence, master of the condemned Salisbury, was granted an appeal to the High Court of Admiralty, giving ¿500 security to prosecute with effect and answer all damages and costs awarded.109 In December, 1691, the court declared that it had been intended to grant the appeal to the King in Council and ordered the entry amended according to this intent.110 But the petition and appeal had already in the previous July been referred by the King in Council to the Lords Committee.111 In January, 1691/2, the bond given to prosecute the appeal before the High Court of Admiralty was ordered canceled, since an end of the affair had been made with the Commissioners of the Treasury, to whom the appeal should have been properly made! 1 1 2 Our principal interest in the vice-admiralty courts centers about their jurisdiction over seizures under the Navigation Acts. This jurisdiction was neither exclusive nor even uncontested.113 Since the proceedings in such seizures were criminal in nature,114 in some instances trials were had in special Courts of Oyer and Terminer. It remains for us to examine the appellate review possible in such cases. The case of the St. Jago de la Victoria illustrates a review process combining both Privy Council and Governor and Council. In 1689 this Dutch-owned ship, 109 ι Ree. Ct. Assistants Mass. Bay (1901), 342-44. «o Ibid., 360-61. 111

PC 1 / 7 4 / 2 1 9 ; CSP, Col., 1689-92, # 1 6 7 8 . PC 2 / 7 4 / 3 1 9 ; see also CSP, Col., 1689-92, # 1 9 0 2 , where appellant petitioned for a reference of the appeal to the Commissioners of Customs. 113 Under J 2 Charles II, c. 18, forfeitures could be sued for in "any court of record by bill, information, plaint, or other action wherein noe essoigne protection or wager in law shall be allowed." Under 13 and 14 Charles II, c. 1 1 , forfeitures could be sued for in the Exchequer or "any other His Majesties courts of record." These statutes gave rise to a controversy whether vice-admiralty courts were courts of record; see Crump, op. cit., 1 3 1 - 3 2 . Under 1 5 Charles Π, c. 7, forfeitures could be sued for in "any of His Majesties Courts 112

in such of the said Lands, Islands, Colonies, Plantations Territories or Places where the Offence was committed, or in any Court of Record in England." This in turn raised the question whether or not admiralty courts were "King's courts" (ibid). Cf. 3 Naval Tracts of Sir William Monson (Navy Ree. Soc. Pub., ed. M. Oppenheim, 1 9 1 3 ) , 427-29. A further complication arose from the provision of 1 3 and 14 Charles II, c. 1 1 , s. 1 3 , that in all actions for forfeitures for unlawful importations or exportations there should not be any party jury, but such only as were natural and free born subjects of the King. Customarily admiralty courts did not employ juries. But despite all these objections, suits under the Acts of Trade were brought in admiralty courts. 114

See CSP, Col., 1700, #574; 4 H. of L.

MSS ( n x ) , 1699-1702, at., lxxxvi.

352; ι Wynne, op.

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captained by Thomas Danieli and in the service of the Assiento, was driven into Jamaica by want of provisions on a voyage from Cadiz to Puerto Velo. After victualing and leaving Jamaica, the ship was seized by men of war at the order of Sir Francis Watson, the acting governor, for violation of the Acts of Trade. A special Court of Oyer and Terminer was erected for trial of the ship by commission from Sir Francis, and the ship was condemned. 115 Several irregularities were alleged in the proceedings—that such court was unknown except in case of piracy, that the court's establishers acted as judges and purchased the informer's share in the condemnation before judgment, that the evidence was corrupt, and that counsel were not obtainable by claimant. 110 Claimant petitioned the King in Council for relief, and the Dutch ambassador also intervened in the matter. 1 1 7 The governor was instructed that Danieli be admitted to appeal to the Governor and Council against the sentence of the Court of Oyer and Terminer, with further liberty to appeal therefrom to the King in Council. In the latter case authentic copies of the records and proceedings in the cause were to be transmitted with such information as should be taken therein on oath. 1 1 8 On June 4, 1690, upon petition, the Governor and Council accordingly ordered the vessel appraised and delivered to Danieli upon his giving security for two-thirds the appraised value in case of affirmance upon rehearing. 119 The appeal was ordered heard upon June 25, but on that date Sir Francis Watson pleaded lack of notice, and the hearing was adjourned to June 30. The Provost Marshall was also ordered to have ten jurymen at the former trial before the Governor and Council on that date. 120 A t the start of the hearing on June 30 respondents pleaded to the jurisdiction of the court; after argument and debate thereon, the plea was overruled. Appellants then advanced that Watson had not been governor, that even if he had been governor, there was a positive instruction not to erect any new court. Lastly, that the things bought were not for merchandise, but only necessaries and comprehended within the articles of peace at Madrid. After argument to the contrary the Governor and Council resolved that Watson was not governor; that if he had been governor, the instructions did not give power to erect any such court; that therefore the whole process was coram non judice and the judgment in itself void from the beginning. Even if the court were lawful, the factual contention of the appellants as to the nature of the articles " » C S P , Col., 1689-92, # 5 0 Jamaica Council, tub June 25, 114 CSP, Col., 1689-92, # 5 0 , ibid., #297, for allegations as of Chief Justice Elletson in the 2 APC, Col., # 2 9 5 ; CSP,

#179, 233» »35·

I; 4 MS Mins. 1690. 50 I; see also to the conduct cause. Col., 1689-92.

118

ι Labaree, Royal Instructions, # 4 9 2 ; cf. CSP, Col., 1689-92, # 2 5 8 . 116 4 MS Mins. Jamaica Council, sub June 4, 1690. 120 Ibid., sub June 25, 1690.

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95

purchased was upheld. Therefore, the sentence of the Court of Oyer and Terminer was reversed.121 A similar review process is found in Maryland. At a special Court of Oyer and Terminer, in January, 1692/3, the Margaret was condemned for violation of the Acts of Trade. 122 Although the reclaimant insisted upon a direct appeal to the King in Council, 123 he had to be satisfied with an appeal to the Governor and Council, "or further if occasion be." 1 2 4 The review granted in the Jamaica cause is sui generis, because of special conciliar intervention. In the case of Maryland the authority for the suggested hierarchy is not evident. The commission provision as to appeals to the Governor and Council was confined to civil causes.125 The only instruction relating to appeals in criminal causes, however inapplicable, had not even been issued for Maryland. 126 ORIGINAL JURISDICTION OF THE PRIVY COUNCIL

Having thus canvassed the appellate jurisdiction of the King in Council in matters colonial, it remains to inquire into its exercise of original jurisdiction. Such jurisdiction was declined when one Alvaro Peres de Tavora complained in November, 1676, that he had been disseised of Bombay lands and goods by the East India Company. 127 The company protested, at a June, 1677, Committee hearing, that if the matter were not left to the local courts, encouragement would be given the inhabitants to decline the settled course of law. Further, the company could not produce witnesses and evidence at such a distance.128 The Lords Committee thereupon agreed to report that, since it did not appear that petitioner had been denied justice upon a trial at law, it was not proper to give sentence in a cause which originally belonged to local courts established by charter. Therefore, petitioner was to be left to apply to such courts for redress.129 This report was approved, and an order accordingly issued by the King in Council. There is some indication, however, that appellate jurisdiction would be assumed, although the controlling East India Company charter contained no appeal reservation.130 121

Ibid., sub June 30, 1690. For the restraining instructions see 1 Labaree, Royal Instructions, #4«· CO 5/713/P 34CO 5/713/P 35· «« CO 5/713/P 34. 125 See supra, p. 79. 128 ι Labaree, Royal Instructions, #458. 127 For the conciliar petition see Cal. Ct. Mins. East India Co., 1674-76 (193·;). 379-81. For the company answer thereto sec ibid., 387-89; for the reply of the petitioner see ibid., 167779 (1938), 9 - » ·

128 CO 391/2/57· For notes of Sir Joseph Williamson on the hearing sec Cal. Ct. Mini. East India Co., 1677-79, 49. 129 CO 391/2/57; Cal. Ct. Mim. East India Co., '677-79, 51-52. For the submission of the petitioner to the company and the restoration of his estate see ibid., 97-98, 141. 130 For the charter relating to Bombay, where the matter arose, see Charters Granted to the East India Company (1773), 80.

φ

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A related question coming before the Lords Committee was whether plantation council boards possessed original jurisdiction. In June, 1676, one Giles Bland complained of the imposition of a ¿500 fine by the Virginia Governor and Council for an affront to another court. It was maintained that trial should have been by jury, every Englishman being supposed to carry the benefit of the laws of England with him. The Lords Committee conceived that a council table was invested with many authorities that had in all times been exercised and allowed of, and so ran into prescription, which was even the foundation of the common law. Although the English Council Board was restrained by 16 Charles I, c. 10, yet it was questionable whether that law extended so far as to effect a Virginia council. For in such a remote place it would be difficult to support the government unless there were an extraordinary power in the Board for emergencies. The Lord Privy Seal at first dissented, alleging that the ancient authority appertaining to the English Council could not be properly attributed to a council in Virginia, which was no ancient colony. It was finally advised that the petition be sent to the Governor and Council to answer within six months. 131 It is worth noticing here that when this question of the exercise of original jurisdiction by colonial council boards arose again in the next century, the Privy Council prohibited such exercise,132 except insofar as the Governor and Council might act as a court of chancery. COMMITTEE PROCEDURE; CHANNEL ISLANDS; PLANTATIONS

After this survey of conciliar jurisdiction, we now come to the procedure adopted by the Council Board and the Lords Committee in the exercise thereof. Here, again, it is desirable first to examine the appellate procedure evolved for Jersey and Guernsey by 1679, and during the years following, as a standard available in colonial matters. By 1679, as a matter of procedural chronology, virtually all appeals were first entered in the Council Register. Upon this entry, or shortly thereafter, a conciliar summons issued for respondent to appear and answer within forty days of service. 133 If respondent failed to answer upon due i » 1 CO 3 9 1 / 1 / 1 4 1 - 4 2 . 1,2 See infra, pp. 638-39. 133 The trend was toward summons issuance immediately upon entry; see Crow v. Syvret, appeal entered December 12, 1664 (PC 2 / 5 7 / 320), summons issued the following March 1 3 ( P C 2 / 5 8 / 7 4 ) ; de Carteret v. Payne, appeal entered Feb. 26, 1665/6 (PC 2 / 5 8 / 3 6 6 ) , summons issued on May 9 (PC 2 / 5 9 / 3 ) ; Hérault v. Dumaresq, appeal entered on September 1 , 1666 (PC 2 / 5 9 / 1 4 6 ) , summons issued September 26 (PC 2 / 5 9 / 1 7 0 ) ; L'Angle v. L e Couteur, appeal entered on April 5, 1673

(PC 2/63/409), summonses dated September 10 and December 12, 1673 (PC 2/64/93, 1 5 1 ) ; La Cloche v. de Carteret, appeal entered August 2, 1675, summons dated August 6 (PC 2 / 6 4 / 4 8 1 ) ; Maret v. La Cloche, appeal entered August 2, 1675, summons dated August 9 ( P C 2 / 6 4 / 4 8 1 ) ; Allen v. de Carteret, appeal entered October 2 1 , 1676, summons issued same date (PC 2 / 6 5 / 3 5 9 ) ; Ahier v. Richardson (PC 2 / 6 5 / 3 7 7 ) and Maret v. Dumaresq to the same effect (PC 2 / 6 6 / 2 1 9 ) . In some instances respondents entered an appearance before the appeal was entered. Rozell

T H E LORDS COMMITTEE

97

summons, appellant petitioned the Council Board for r e v e r s a l ; 1 3 4 conversely in case of nonprosecution respondent petitioned for dismissal of the a p p e a l . 1 " In the normal procedural course, after respondent entered an appearance, appellant petitioned the Council B o a r d to be heard on his appeal. T h i s petition w a s then referred to the C o m m i t t e e for Jersey and Guernsey to hear and report thereon. A f t e r such C o m m i t t e e hearing and report an Order in Council w a s issued based upon i t . 1 3 6 U n d e r this committee system the position formerly held by the legal advisers became m i n o r . 1 3 7 T h e delegation of the appellate function to insular commissioners w a s no longer accepted practice, 1 3 8 al· though recourse w a s still had to the island courts for information as to the state of the insular l a w . 1 3 · v. Bouillon (PC 2/55/366; PC a/56/96); Rcnouf v. Gibault (PC 2/58/15, 19); cf. Gosselin v. de Saumarez (PC 2/65/450; PC 2/66/17) where respondent complaincd that appellant had summoned said respondent to appear before entry of the appeal and without any order for such summons from the Clerk of the Council as was usual in like cases; that petitioner came over to enter an appearance upon such summons and was refused it. The Council awarded respondent £3 costs for loss sustained by such irregular proceeding«. By Order in Council, Jersey appeals were to be prosecuted between the beginning of Easter Term and the end of Midsummer Term (tupra, pp. 32-33). Therefore, it was concaved necessary that part at least of the forty days to appear fall within the said time limits; see Dumaresq v. Le Hardy (PC 2/60/119, 164). But this temporal limitation for prosecution appears to have been extended to Guernsey also by conciliar usage; sec the 1682 summons in Monamy v. Dobree from Guernsey (PC 2/69/436) and the recital in a July 6, 1697, summons (PC 2/77/36). But this regulation was by no means strictly observed. For Jersey violations thereof see PC 2/56/110, 1 1 9 ; PC 2/58/182; PC 2/60/205, 207; PC 2/75/56%. For Guernsey, see PC 2/70/199; PC 2 / 7 1 / 1 2 4 . But cf. Ahier v. Mallet, where when the parties appeared after the usual time for prosecuting appeals had lapsed, the hearing was put off until the next year (PC 2/72/716). i- 4 De la Cloche v. Le Hardy (PC 2/69/61); Dobree v. le Gentilhomme (PC 2/71/288). The Council at times exhibited a lenient attitude in giving summoned persons time to appear before it; see du Hamel v. de Guidici (PC 2/61/59, 106, 125). 13S Le Montais v. Mauger (PC 2/65/135) ;

de Carteret τ. Le Hardy (PC 2/71/285); Richardson v. Le Febnre (PC 2/71/490). 188 For representative cases see de Jersey v. Bonamy (PC 2/69/584, 674, 675, 679); Nicotic v. Gosselin (PC 2/70/136, 184, 187, 199); Vaudin v. Fautrart (PC 2/70/296; PC 2/71/90, 93, 124, 127); de Carteret v. de Carteret (PC 2/74/33, 19". 207, 225, 230); Le Moigne v. Valpy (PC 2/74/216, 389, 407; PC 2/75/151, 157); Scale τ. Mauger (PC 2/74/92; PC 2/75/92, 136, 180, 183). But cf. the seeming Committee finality in Journeaux v. Dumaresq (PC 2 / 7 1 / 1 1 9 , 170) where the reference terms were "to give such order therein, as their Lordships shall thinke fit." As to the general reduction to formality of Council Board functions see 2 Turner, The Privy Council of England, 104, 109. ist Pqt attendance of the King's Advocate at a Committee hearing see Fiot v. Gosselin {PC 2/69/328). In Briard v. le Brocq the appeal was referred to counsel "to state the cause" (PC 2/70/214). For reference of non-appellate matters to legal advisers see PC 2/73/400; PC 2/74/194· 158 See the statement of the Attorney General and the Advocate General in Andros v. Priaulx (PC 2/61/272) that "it is not fitt any person should have the liberty to 0y from a court first and afterwards to returne thither againe at his pleasure, drawing causes and persons to and fro to their grievance, cost, and vexation, and as to this cause in particular it being legally brought by the said Andros before his Majesty and the Board it ought to receive its determination here, and. not (o be remitted to the said island." " • S e e Gosselin v. de Quitteville (PC 2/69/ 683, PC 2/70/206, 214) where the Committee report advised reversal, if appellant could es·

98

T H E LORDS COMMITTEE

The dolcance was employed extensively during this period in cases where the Royal Courts denied an appeal, although such procedure displayed no uniformity at this period. In some cases of doleance appeals were allowed upon Committee examination and report.140 In others the Royal Courts were ordered to show cause why an appeal was denied, the order being issued either by the Committee 1 4 1 or by the Council Board itself.142 Also upon doleance the Council Board might admit an appeal in the first instance without any preliminaries.143 From these doleance proceedings should be distinguished "appeals by way of doleance." In the latter case the procedure was the same as that upon an ordinary appeal.144 Later, as we shall see, the term doleance becomes accepted nomenclature for all conciliar petitions for leave to appeal upon denials below from whatsoever source. The character of the hearings before the Committee for Jersey and Guernsey at this period was still upon occasions a proceeding de novo,145

but there is also

evident some opposition thereto.146 At this time, too, the rehearing attained tablish certain legal propositions to be the custom of Guernsey. Upon presentation of supporting certificates from local counsel, respondent was ordered to make answer thereto. Finally, after hearing the parties and their counsel, the consideration of the whole matter was left to the Royal Court to examine and report whether the custom was as certified. 1 4 0 See In re Efford (PC 2/75/143, 151, 158); In re Messervy (PC 2 / 7 5 / 3 7 1 . 373); In re le Messurier (PC 2/75/296, 412, 415). There is nothing to indicate that the Committee hearings were other than ex parte. 141 In re Messervy (PC 2/64/332, 391); In re Le Marchant (PC 2/70/198, 206). Cf. In re Patriarche (PC 2/75/180) where a Committee report advised that the doleance be admitted as within the time limited and that the Jersey Royal Court be ordered to transmit reasons for denial of the appeal. In re Richardson (PC 2/68/180). Cf. In re Mancell, where such order was made after a preliminary reference of the question whether an appeal should be admitted to the Commissioners of the Treasury (PC 2/75/144, 159, 161, 252). 143 In re de Carteret (PC 2/69/494). 1 4 4 See Le Marchant v. de Beauvoir (PC 2/65/367, 430, 450); Gosselin v. Le Hardy (PC 2/69/543, 674, 685, where before further proceedings were had the Royal Court was ordered to certify whether appeals by way of doleance after caution given ot ¿10 had ever been allowed in Guernsey for any cause under

the value of 40 shillings freehold or ¿ 4 0 in goods and chattels, PC 2/69/688); Gosselin v. de Saumarez (PC 2/72/665; PC 2/73/63, 141). Cf. In re Collas, where petition for leave to appeal by way of doleance resulted in a reversal upon the merits (PC 2/70/243, 250; PC 2/71/128, 170). 1 4 5 In Massey v. Guille (PC 2/71/288) the Committee advised affirmance, "no new matter being alleged before them, whereby to induce the setting aside the said sentence." In Efford v. Renouf (PC 2/75/168) an appeal was admitted at the Council Table, and the respective Royal Courts were ordered to cause such witnesses as should be produced by appellant to be examined upon oath and their depositions transmitted to the Board for its information in determining the appeal. In Valpy v. Le Moigne (PC 2/75/465, 468) the cause was remanded to the Jersey Royal Court that proof might be made of the damage sustained upon several occasions when the ship in question was alleged to have been plundered. 1 4 0 See de Carteret v. de Carteret (PC 2/74/ 225) where the Committee reported that at the hearing "defendant's counsell offered some evidence more than it appeared they did produce at the hearing in Jersey, which we though not fitt to receive," and advised that the cause be remitted to be heard again before the Royal Court. The Council ordered the Royal Court to rehear upon such evidence as had been or should be produced before the Royal Court by either party (PC 2/74/230).

T H E LORDS

COMMITTEE

99

some prominence as a (actor to be reckoned with in conciliar procedure. T h e s e rehearings w e r e granted upon petition to the C o u n c i l B o a r d after previous C o m m i t t e e hearing and report. 1 4 7 U p o n grant of such rehearing notice w a s provided the adversary parties to a p p e a r . 1 4 8 G r o u n d s f o r rehearing included allegations of n e w matter and of previous improper representation. 1 4 · T h i s system of rehearing w a s opposed as tending to prolong unduly appeals f r o m the i s l a n d s ; 1 5 0 it also brought out the lack of administrative continuity in conciliar f u n c t i o n i n g . 1 5 1 T h e time limitation for the prosecution of appeals m i g h t also be invoked as an obstacle to a r e h e a r i n g . 1 5 3 W i t h this brief description of C h a n n e l Islands procedure before us, it is possible to settle by inference the source of some phases of procedure upon colonial appeals. A s in the system just considered, t w o bodies were primarily concerned w i t h colonial appeals—the Council Board a n d the C o m m i t t e e of T r a d e a n d Plantations. F o r the most part, the f o r m e r restricted itself to f o r m a l action; the majority of the hearings took place before the C o m m i t t e e . B u t w i t h the exception of minor interlocutory orders the C o m m i t t e e possessed At the 1676 hearing of Norman v. Bisson, Secretary Joseph Williamson questioned whether allegations of new matter were proper either on appeal or on doleance (SP 47/1/ #37)· 147 Sec Maret v. Dumaresq (PC 2/68/158); Priaulx v. Thomes (PC 2/66/234). In some cases the petition for a rehearing was referred to the Committee, and the decision left to that body. Fautrart v. Rolland (PC ιΙη\Ι\φ, 163). See also Peryn v. de Carteret (PC 2/71/275) where following a rehearing before the Committee a further petition for a rehearing was proffered to the Council Board. The decision of the Council as to granting a rehearing appears to have been arrived at ex parte in most instances. But cf. Peryn v. de Carteret (PC 2/71/267) where respondent was ordered to return an answer to the Board showing cause why a rehearing should not be granted. The Order in Council allowing the rehearing might suspend the former order in the cause; see Priaulx v. Thomes (PC 2/66/234). 148 Maret v. Dumaresq (supra, n. 147); Priaulx v. Thomes (supra, n. 147); Fautrart v. Rolland (supra, n. 147). In Peryn v. de Carteret (PC 2 / 6 9 / 1 1 1 ) before a summons issued for the respondent to attend the Board, the appellant was ordered to give sufficient security to the clerk of the Council to pay die respondent all the costs and charges that he would incur in coming over and attending the

cause, if the rehearing resulted in a confirmation of the former order. 1«» Priaulx v. Thomes (supra, n. 147; counsel not fully instructed at hearing, new matter to offer); Maret v. Dumaresq (supra, n. 147; "petitioner hath matter to offer upon which he hath not yet been heard"). 1,0 The respondent in Peryn v. de Carteret (PC 2/69/162) alleged that rehearings would introduce a precedent whereby law suits would never end and the island inhabitants would be utterly ruined through vexatious delays and frivolous pretenses. 151 In Peryn v. de Carteret (PC 2/71/275) respondent alleged that appellant, after the sentence had been confirmed and when he thought the business might be forgotten, had, unknown to respondent, presented petitions to the Board and obtained references, but upon respondent's application they were as often dismissed. The third dismissal ordered that the King be no further troubled in the matter, but this edict did not prevent further application to both the Committee and the Board. 152 In Fautrart v. Rolland (PC 2/71/285) the Committee reported that it found no grounds to revoke or alter its former judgment, and since all appeals ought to be prosecuted within a year and a day, advised the confirmation of the former order in the cause. This regulation is alleged inter alia in Peryn v. de Carteret (PC 2/71/275) as a reason for not granting a rehearing.

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no executive power; its decisions gained force only from the orders of the Council Board. T h e course of an appeal before the Council and the Committee depended in the first instance upon whether an appeal had been granted below. In the eighteenth century, when the conciliar appellate system had become firmly established, it was seldom necessary to make a preliminary petition to the K i n g in Council for leave to appeal. But in the seventeenth century, when practice was undeveloped and the right to appeal not generally understood or accepted, it was often necessary to present such a preliminary petition. 163 In case an appeal had been granted below, the initial procedural step was presentation of the petition and appeal to the King in Council. T h i s petition and appeal normally gave a succinct statement of the cause of action and of the proceedings of colonial judiciaries thereon, alleged that good security had been given below, and prayed conciliar hearing and reversal. 154 After being read, the petition and appeal was then referred by the Council Board to the Committee to examine and report how they found the same with their opinion thereon. 1 8 8 After hearing and examining the appeal, the Committee reported to the Board its advice in the matter. T h i s report would then be adopted by the Council in the order which issued in final settlement of the cause.1®6 If we venture to call this the procedural norm in colonial appeals at this period a host of variations must be enumerated. In some cases the Privy Council itself entered upon the hearing of an appeal, then without definitive order therein referred the cause to the Committee to hear and report. 157 T h e procedural possibility also existed that following a Committee report the parties would be heard by counsel at the Board before an Order in Council issued. 158 In some causes the Committee merely decided upon reference 15s

More than one-third of the appeals during this period were granted upon application to the Council. This proportion is greatly increased if fourteen appeals of Edward Randolph arc included, but it is not certain that these appeals were granted by the Council; see PC 3/69/343· It is not to be taken that in each case of conciliar admission an appeal had been denied below. 154 See as an example the petition and appeal of William Vaughan, 1 6 8 ; , from four New Hampshire judgments, sentences, and decrees (Samuel Allen MSS). 158 Compare Witham v. Gray, a 1688 Barbados appeal from a February 17, 1 6 8 4 / ; judgment of the Governor and Council, where the reference to the Committee was to consider, to hear the appeal if they saw cause, and to report

thereon. This reference variation may have been due to the lapse of time before the appeal was presented and referred (2 APC, Col., #265). 158 For an example of conciliar appellate procedure in most rudimentary form see Ward v. Palmer, PC 2 / 6 8 / 3 7 1 , 425; CSP, Col., 167780, # 1 3 0 9 , 1 3 1 4 · 157 Bland v. Codd (Va.) (PC 2/70/255). Before the Committee could hear the appeal the parties agreed to submit the matter to arbitration. Lord Howard was designated as final referee if arbitration failed (CSP, Col., ¡68}88, # 3 6 , 49, 2 1 6 ) ; apparently such arbitration did fail (ibid., # 7 5 6 , 781, 782, 8 1 7 ) . 158 Darvall v. Hall (N.Y.) (PC 2/69/268, 421; CSP, Col., 1681-85, # 2 3 5 ) .

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whether the Council Board should hear an appeal or not. 159 A s another alternative, the principal hearing might be assumed originally by the parent body without any reliance upon the services of the Committee. 160 As has been previously indicated, in a large number of cases the Privy Council was preliminarily petitioned that an appeal be admitted from judgments or decrees of colonial courts. T o make this determination as to admission, various methods were utilized. 101 In certain cases the Privy Council decided ab initio without any consultation that it would admit an appeal as petitioned.182 In other causes the question of the admission of an appeal was referred to the Committee for its opinion in the matter, the conciliar order admitting the appeal being based upon the report of that body. 163 Of course, the Committee was not limited to its own knowledge; it might consult the crown law officers or the judges when legal knowledge was requisite.1®4 But 159 In Sharpe v. Dun (Barb.), an appeal was referred to the Committee to examine and consider the whole matter of the appellant's petition and to report to the Board how they found the same, with their opinion what was fit to be done thereupon (PC 2 / 7 6 / 1 4 7 ) . The Lords Committee considered the appeal at two meetings; counsel were heard, witnesses called, statutes read. Finally, it was agreed to move the King in Council that the parties be heard by the Board (CO 3 9 1 / 8 / 7 1 , 76). The report of the Lords Committee stated that the Board might hear the cause if they desired (PC 2 / 7 6 / 164). In Bate v. Gibbs, another Barbados appeal, substantially the same reference was made by the Privy Council; the Lords Committee reported that the parties concerned might be heard if the Lords Justices should so think fit (PC 2 / 7 6 / 1 6 0 , 164; CSP, Col., 1693-96, #1979)· 160 Cooke v. St. Loe (PC 2 / 7 1 / 4 7 5 ) . 161 Since there are no cases evident where an appeal was refused by the Privy Council, it is safe to conclude that admission standards were extremely liberal. There is nothing in the cases to indicate that a denial of an appeal by the courts below was a condition precedent for application directly to the King in Council for leave to appeal. 162

Wright v. Cornwall (N.Y.) (PC 2/69/634; apparently the appeal was admitted merely upon reading the petition for the allowance of an appeal from an October, 1682, judgment of the General Court of Assize; the appeal was referred directly to the Lords Committee to examine and report the state of the matter with their opinion thereon); Scott v. Dyer (PC 2 / 7 1 / 3 8 9 ) ; In re The Swallow (PC 2 / 7 2 / 4 5 6 ) ;

Knight v. Hallett (PC 2/72/666)·, Elletson v. Danieli (PC 2 / 7 4 / 2 7 4 ) ; Sharpe v. Dun (PC 2 / 7 6 / 1 4 7 ) ; Brenton v. Lawson (2 APC, Col., # 4 8 0 ) ; Brenton v. Wilkinson (ibid.). 163 Bland v. Codd (Va.) (CSP, Col., 1681-85, # 6 2 0 , 623, 625; PC 2 / 6 9 / 5 4 1 ) ; Thayre v. Savage (Mass.) (PC 2 / 6 9 / 5 9 1 ) . As the allegations of Thayre of wrongful dispossession from lands in Braintree involved the claim of Massachusetts Bay to that land, the agents for that colony were called upon to answer the petition by the Lords Committee (CSP, Col., 1681-85, # 8 3 4 , 9 1 2 , 9 3 1 , 9 3 5 ) ; see also Raynesford v. Gorges (Barb.), where although the initial register entry appears to be a petition and appeal (PC 2 / 7 1 / 2 7 4 ) , there was a report and Order in Council thereon admitting an appeal (PC 2 / 7 1 / 2 8 0 ) ; White v. de Castillo (PC 2 / 7 5 / 1 9 4 . 253; CSP, Col., 1693-96, #575" 76); Holder v. Coates (PC 2/76/92, 2 4 1 ) . 164 In Cooke v. St. Loe, an appeal from a Nevis Vice-Admiralty Court sentence, the Committee took the opinion of the judge of the High Court of Admiralty before advising the allowance of an appeal (PC 2 / 7 1 / 3 3 0 ) . The same opinion was taken in Kirwan v. St. Loe, an appeal from an Antigua Vice-Admiralty Court sentence (PC 2/72/468). In Holder v. Coates, an appeal from a Barbados ViceAdmiralty Court sentence, the petition for leave to appeal was referred by the Committee to the Attorney General and the judge of the High Court of Admiralty for their opinion whether the appeal should be admitted (CSP, Col., 1693-96, # 1 8 4 7 , 1862). In Hanson v. Rex, the Lords Committee contemplated taking the opinion of the Attorney General whether Governor Dutton of Barbados had proceeded

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the reference process in matters of law might be substantially shortened by the Council Board's taking the opinion of the crown law officers directly. 188 If the gravamen of an attempted appeal consisted of complaint against colonial executives, then such executives might be afforded opportunity to answer the petition for leave to appeal before admission was granted. 168 Other variations existed in that the decision whether an appeal should be admitted could be left to a colonial governor

187

or a trading company. 188 The Lords Committee,

however, refused to exercise jurisdiction over petitions for leave to appeal, without a reference from the Council Board. 1 8 9 It appears that for the most part these petitions for leave to appeal were considered in an ex parte manner, by both the Privy Council and the Committee. 170 Furthermore, the records of the proceedings below were not usually before either body when admission of an appeal was under consideration, for in many orders admitting appeals it was directed that the record below be transmitted. 171 From the very uncontested nature of this procedure one would properly in the imposition of a £, 1 5 0 fine on Samuel Hanson, but seemingly admitted an appeal without awaiting such opinion ( C S P , Col., 1681-85, # 4 8 0 , 484). 145 In Hubbard v. Smailes, the petition for leave to appeal was referred to Attorney General Treby to examine and having heard all parties concerned to report to the K i n g in Council how he found the same together with what he conceived fit to be done thereupon (PC 2 / 7 3 / 3 0 0 ) . Treby reported that he had examined the matter and heard the parries, that respondent had secured a judgment in 1688, but that "an appeal from such judgment at Bermuda doth of right lye to your Majesty in Council; and that has been the constant course and practice in cases of this nature." H e had tried to accommodate matters in vain, and therefore advised that petitioner should either pay over the money in question or give security for an appeal. The Order in Council followed the Attorney General's report (PC 2 / 7 3 / 4 2 4 ) . 196 Captain Francis Mingham, in a petition to the Council, complained of the condemnation of the pink Francis on January 22, 1 6 7 8 / 9 , in the Jamaica Vice-Admiralty Court held by Sir Henry Morgan, and prayed a rehearing before the King in Council. Copies of the petition were ordered sent to Morgan and Thomas Martin, the Receiver General, to return their answers thereto with copies of the Vice-Admiralty Court proceedings in the cause (PC 2 / 6 7 / 2 2 5 ) .

T h e answers are set forth at CSP, Col., 167780, # 1 3 0 4 , 1429. See also the procedure in the several criminal appeals, infra, pp. 1 0 7 - 8 . 187 Governor Kendall, en route to Barbados in 1689, was ordered to allow an appeal to one Ralph Lane, provided such appeal was consistent with his instructions and the island law (PC 2 / 7 3 / 2 4 3 ) . Lane had complained of imprisonment by Lieutenant-Governor Stede for taking an appeal to the King in Council. See infra, pp. 1 0 7 - 8 . But the appeal was admitted by the Council upon a report from the Committee (PC 2 / 7 5 / 5 0 ) , which had been petitioned by one Bushell in Lane's behalf (CSP, Col., 1689-92, # 2 5 7 0 , 2645-46). 198 In February, 1 6 9 0 / 1 , James T w y f o r d el al., owners of The Society, complained of a Virginia condemnation of some elephant teeth. T h e petition was referred to the Royal African Company to answer if they had any objection why an appeal should not be allowed (CO 3 9 ' / 7 / 3 - 4 ; CSP, Col, 1689-92, #822). ,ne I n October, 1685, Richard Young and Samuel Hanson petitioned the Committee for an appeal from a Barbados judgment on a ¿ 200 bond, but were advised to petition the K i n g that the matter be referred to the consideration of the Committee (CO 3 9 1 / 5 / 2 0 7 ) . 170

But cf. the procedure in Hubbard v. Smailes, tupra, n. 165, and CO 3 9 1 / 7 / 1 5 2 , 219. 171 Raynesford v. Gorges (PC 2/71/280);

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expect to find allegations of improper judicial conduct below which might not be capable of factual support. In Mingham v. Martin, Mingham petitioned for a rehearing of a Jamaica Vice-Admiralty Court sentence, but the Jamaican officials against whom he had complained regarded his petition as false and scandalous and secured judgments locally in defamation actions against the petitioner for presentation of such petition. 172 Consequently appellant was under the necessity of petitioning against the second sentences. A n appeal was admitted upon giving security, and the whole matter was referred to the Committee to consider and report. Upon their report all the sentences complained of were reversed. 173 In Bland v. Codd the Council of Virginia complained unavailingly that it was libeled by allegations in various of appellant's petitions.174 In Hanson v. Rex an appeal taken from one executive act precipitated more executive action from which in turn it was necessary to appeal. 175 These instances evidence the stubborn attitude frequently exhibited by colonial officials toward any attempts to curb their activities by appeal or complaint to England. One form of this recalcitrance was the denial of appeals, although denial might not in every case be unjustified. 176 The mere procurement of a favorable Order in Council directed against a colonial governor was not equivalent to the achievement of justice—the sanction behind an Order in Council might appear ineffectual to a resolute official located far from the purlieus of Whitehall. 177 A t times the Lords Committee Cooke v. St. Loe (PC 2 / 7 1 / 3 3 0 ) ; Scott v. Dyer (PC 2 / 7 1 / 3 8 9 ) ; Knight v. Hallett (PC 2 / 7 2 / 666; CSP, Col., 1689-92, # 4 3 0 , 507); Elletson v. Danieli (PC 2 / 7 4 / 2 7 4 ) ; White v. de Castillo (PC 2 / 7 5 / 2 5 3 ) ; Brenton v. Lawson (2 APC, Col., # 4 8 0 ) ; Brenton v. Wilkinson (ibid.)·, cf. Billop v. West (CO 3 9 1 / 5 / 2 3 5 ) · 172 Sir Henry Morgan, Deputy Governor and sole Admiralty Court judge at the complained o£ condemnation, received damages to the extent of £ 2 , 0 0 0 ; Thomas Martin, the Receiver General, was awarded ¿ 5 0 0 damages (CSP, Col, 1677-80, # 1 3 0 4 , 1379, 1398). 173 An unsuccessful attempt appears to have been made by the Board to have a preliminary hearing to determine whether an appeal should be allowed in the defamation cases (PC 2/68/ 28). The course of the case can be traced in PC 2/68/45, 243, 257, 267. The defamation actions were regarded as a contempt of the Council's authority. 174 CSP, Col., 1681-85, #1769. 175 See ibid., # 1 1 6 7 . 176 In Lane v. Stede the debts for which ap-

pellant was imprisoned amounted to only £ 1 4 6 / 1 3 / 4 , whereas it appeared to the Committee that in Barbados appeals were not usually allowed in personal actions under £ 300. Nevertheless, the Lords Committee advised that Lane be allowed to prosecute an appeal (CO 3 9 1 / 8 / 9 0 ) . But at the time this appeal was first denied, the Lieutenant-Governor was justified in refusing such appeal under his instructions; see 1 Labaree, Royal Instructions, # 4 4 3 . In Witham v. Rex Gov. Dutton claimed that according to his instructions he was directed to allow no appeals in criminal causes (CSP, Col., 1685-88, #293); cf. the attitude of the Committee, ibid., # 4 3 9 . For the instructional language as to criminal appeals see 1 Labaree, Royal Instructions, #443177

The petition for leave to appeal of Ralph Lane was first considered by the Privy Council on July l i , 1689 (PC 1/7^/177). The appeal was admitted in December, 1692 (PC 2/75/ 50). A year later it was necessary to petition for enforcement of this admitting order (PC

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in a realistic mood recognized their inability to exert pressure on recalcitrant colonial courts or officiais, at least by means of any appellate process. 178 Let us now trace the appellate course from the granting of the appeal to the determining Order in Council. W h e n conciliar appeals were made, it was usual during the period for appellants to give security to answer the award in case of affirmance, or to prosecute the appeal with effect, or both. 1 7 9 A s we have seen, the giving of security below was made mandatory by the various commissions and instructions issued to colonial executives. 180 But even prior to these expressions of imperial policy such practice existed in some colonies. 181 This practice was also afforced by colonial statutory provisions. 182 A n d as w e have already seen, these various requirements were supplemented by a February, 1683/4, conciliar order that no plantation appeals should be admitted at the Council Board unless sufficient security were first given by appellants as well at the Board as in their respective plantations to prosecute their appeals with effect and to stand the conciliar award. 1 8 3 Thus, where an appeal was admitted in the first instance by the Privy Council it was the normal pro2/75/295; CSP, Col., 1693-96, # 7 2 6 ) . In August, 1695, it was still necessary to issue an Order in Council that there be no obstructions to the bringing of the appeal (PC 2/76/179). See also the recalcitrant attitude of Bermuda Governor Goddard in his controversy with Isaac Richier (CSP, Col., 1693-96, #1724, 1887; PC 2/76/95; cf. CSP, Col., 1696-97, # 1 1 8 , 728). After the Committee of Trade and Plantations had ceased to function, Goddard was recalled as governor, and it was ordered that any new governor be instructed to let Richier appeal from all prosecutions (PC 2/77/12). 1 7 8 In Thayre v. Savage appellant alleged the ancient purchase of land in Braintree, New England, from an Indian sachem; that Massachusetts Bay had recently extended its jurisdiction to include Braintree and disposed of petitioner's land to Captains Savage and Clapp. Appellant was compelled to defend title at Boston, where the court refused to admit appellant's Indian deed and an appeal to the King in Council. Apptllant then came to England to appeal in person, but was dissuaded therefrom by the Massachusetts Bay agents on assurance of local justice. Upon return, appellant received no recognition of his claims, and ruin ensued (CSP, Col., 1681-85, # 8 3 4 ) · Cf. the answer of the Massachusetts Bay agents (Md., # 9 3 1 ) . Upon report of the Committee the appeal was ordered heard before the King in Council (ibid., # 9 8 9 ) . When an attempt

was made in the colony to secure the fulfillment of terms in the admitting conciliar order for sending over a copy of the Indian deed and for giving respondents notice, the order was rudely rejected and the King's authority contemptuously scorned (ibid., # 1 1 3 0 , 1620). Upon consideration of this action the Committee was of the opinion that petitioner would have to attend the issue of the quo warranto against the charter of Massachusetts Bay (ibid., # 1 6 2 1 , 1627). 1 7 9 As to security requirements of prosecution within a limited period, geography might be recognized by exceptions covering danger of the seas and the restraint of princes; see CO 5/1305/61 I; CO 37/1/34 (8). 1 8 0 See supra, pp. 80-84. The 1691 charter to Massachusetts Bay also contained security provisions, supra, p. 76. 1 8 1 In New York security was given in the cases of Ward v. Palmer (PC 2/68/371; CSP, Col., 1677-80, # 1 3 1 6 I V ) ; Darvall v. Hall (PC 2/69/268), and Wright v. Cornwall (CSP, Col., 1681-85, # 1 0 5 6 ) before any commission issued necessitating security. 1 8 2 See supra, pp. 84-87. 1 8 3 See supra, p. 87. This order was the byproduct of the dismissal of two New Hampshire appeals for nonprosecution; see CO 391/ 4/252, 258. But this Order in Council appears to have been sent only to the colonies of New Hampshire and Virginia (CO 391/4/331, 337)·

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cedure to make the giving of security by appellant a condition precedent to the appeal admission.184 Failure to give security could thus result in the final dismissal of an appeal. 185 In some causes security was ordered given by both parties to the appeal. 188 The amount of security varied widely, bearing no uniform relation to the amount involved in the appeal. 187 Under the standing instructions issued during this period there is some confusion evident in the matter of suspension of execution upon appeal to England. Earlier instructions seemingly contemplated suspension of execution upon appeal in the provision that security should be given by appellant that he would effectually prosecute the appeal and "answer the condemnation, as also pay such costs and damages as shall be awarded by us." 1 8 8 Apparently by the word "condemnation," borrowed from the civil law, was meant the award of the judgment appealed from. Accordingly, if execution were not suspended, there would seem little reason for posting security to "answer the condemnation." Yet in some instances when a specific provision was inserted that execution was not to be suspended by reason of any appeal to the King See inter alia Billop v. West (3 Doc. Rei. Col. Hist. N.Y., 3 6 7 ) ; Raynesford v. Gorges (PC 2 / 7 1 / 2 8 0 ) ; Cooke v. St. Loe (PC 2 / 7 1 / 3 3 0 ) ; Knight v. H a l l e « (PC 2/72/666). In all these causes security was presumably given the Council Clerk; see Bland v. Codd (PC 2/69/684). In Hubbard v. Smailes (PC 2 / 73/424) appellant was allowed to give security in Bermuda. In Bland v. Codd security was first ordered given in Virginia, but it was petitioned that because of respondent's influence, appellant could not raise security there. It was thereupon ordered that the clerk of the Council take good and sufficient security instead (PC 1/69/541, 684). But in some cases no security is mentioned; see Thayre v. Savage (PC 2/69/643); Sharpe v. D u n (PC 2 / 7 6 / 1 4 7 ) ; the various Edward Randolph appeals (PC 2/69/343). There is no mention of security in the order admitting several appeals of William Vaughan (PC 2 / 7 1 / 6 5 ) , but see Robert Mason's allegation (CSP, Col., 1685-88, #1002). 184

1 8 5 In Hubbard v. Smailes an Order in Council admitted an appeal from Bermuda provided security was given to Governor Richier, within a month of the arrival of the appellant in that island, to prosecute the appeal before the Board within six months after such security had been given, wind and weather permitting. Upon the giving of such security the governor was to halt all proceedings on the verdict and transmit authentic copies of all proceed-

ings in the cause to the Board; if no security were given, the appeal was to be dismissed (PC 2/73/424). A later order founded on a petition of respondent directed the governor that if security had not been given by the time the order reached him the appeal was to be finally dismissed and execution awarded without delay (PC 2/74/244). « • B l a n d v. Codd (PC 2 / 6 9 / 5 4 1 ) ; St. Loe v. Kirwan (PC 2/72/468); Elletion v. Danieli (PC 2/74/274); see also Richier v. Goddard, where it was petitioned by appellant that respondents be also compelled to give security for costs and damages (CSP, Col., ¡693-96, #2196). 1 8 7 T h e amounts ranged from ¿ 200 in Walton v. Walford (CO 1 / 5 1 / 7 1 Π ) ; W r i g h t v. Cornwall (CO i / 5 1 / ι ο ϊ I ) ; and Hubbard v. Smailes (CO 3 7 / i / # 3 4 [p. 8 ] ) , to ¿ 1 2 , 0 0 0 in Witham v. Rex (CSP, Col., 1685-88, # 2 0 3 ) . Some intermediate sums were ¿ 4 0 0 (PC 2/69/268), ¿500 (PC 2/75/50), ¿ 1 , 0 0 0 (PC 2 / 7 1 / 3 3 0 ) , ¿ 2 , 0 0 0 (CSP, Col., 1693-96, # 2 2 0 9 ; PC 2 / 7 1 / 1 8 1 ) . In the appeals of Jahleel Brenton, £1,100 security was given below, but an Order in Council commanded the colonial authorities to take sufficient security, not exceeding ¿ 1 1 , 0 0 0 , to prosecute the appeal and answer any determination therein (2 APC, Col., # 4 8 0 ) . But cf. the terms of the 1691 Massachusetts Bay charter, supra, p. 76. 188

ι Labaree, Royal Instructions,

#444.

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in Council, the former provision was also retained. 189 The operative effect of such retention would seemingly be to prevent any decrease in the amount of security necessary upon appeal. For obviously the amount of security necessary to cover costs and damages alone would be less than for costs and damages plus the amount of the condemnation. In the large proportion of cases admitted upon application to the Council, it might be assumed that the question of suspension of execution was moot. Still, there are instances in which appeals were admitted with advice that execution was not to be suspended because of such admission. 190 More surprising, in other cases all proceedings below were ordered suspended upon admission of appeals. 191 Apparently the issuance of such order depended upon making out a prima facie case of erroneous or oppressive conduct below. The instructional phrase "effectually prosecute" was capable of various meanings in the bonds furnished upon appeal, but the Council interpreted it to mean presentation of the appeal within a year. 192 At this point we must consider the procedure used to bring an appeal on to a hearing before the Committee. In some cases when the Council admitted an appeal, it would set the date for the hearing at the time of admission. 193 Or after reference of an appeal to it, the Committee might of its own initiative read the appeal and set a day for the hearing. 194 The respondent could expedite the hearing by a petition to the Council Board or the Committee that a short day be appointed for a hearing. 195 The Lords Committee would then appoint a day and give the parties notice. 196 If appellant failed to appear after being given adequate opportunity, the Lords Committee would recommend dismissal without a hearing. 197 188 190 191

Ibid., #445·

Elletson v. Danieli (PC 2/74/274). Billop v. West (3 Doc. Rei. Col. Hist.

N.Y.,

367); Witham v. Rex (CO 391/5/115·, CSP,

Col., 168;-88, #95); c f . ibid., #98; Hubbard

v. Smailes (PC 2/73/424). 192 See White v. de Castillo (PC 2/75/253). 193 Raynesford v. Gorges (PC 2 / 7 1 / 2 8 0 ) ; but this appeal was not heard on the specified day (PC 2/72/546). 194 See Wright v. Cornwall (CSP, Col., 1681-8$, # 1 0 4 6 ) ; Raynesford v. Gorges (CSP, Col., 1685-88, # 6 8 0 ) ; Thornhill v. Rex (ibid., # 1 4 8 1 ) . After the appeal was read, appellants in the last mentioned case were given three months to prosecute the appeal. 195

See PC 2/70/34, 48; CSP, Col., 1685-88,

# 9 0 5 ; PC 2/68/257 (here the Council Board set the date for a hearing before the Committee); PC 2/70/242, 247; PC 2/72/476 (Council Board set date for hearings before

itself). See also the petition offered by respondent upon belief that the appeal was unjustifiable (Scott v. Dyer, CSP, Col., 1685-88, #137°)· 196

CSP, Col.,

1685-88,

#907; CO 391/4/

249, 256. Apparently summonses were notified upon the Exchange. 197 j n Walton v. Walford a petition that a short day be appointed for a hearing was presented to the Council Board by Thomas Wadleigh for the respondents; on August 8, 1683, it was referred to the Lords Committee (PC 2/70/34). On November 13 the petition was read by the Committee and the appeal ordered heard on December 1 1 (CSP, Col., 1681-85, # 1 3 7 7 ) · On that date the appeal was called, but no appellant appearing, the hearing was deferred until January 8, 1683/4 (ibid., # 1 4 4 8 ) . On the latter date respondents attended, but appellant still failed to appear (ibid., # 1 4 9 9 ) . On January 22 the Committee reported to the Council Board, advising

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T h e evidence that is available affords very little information as to the method used to summon respondents before the Council or L o r d s Committee. W h e n an appeal had been granted below a summons to answer the appeal at the Council Board might issue locally following the allowance of the appeal. 1 9 8 Where an appeal was admitted in E n g l a n d by the Council in the first instance, the admitting conciliar order did not usually order respondent to appear and answer. Nevertheless, upon admission of some of E d w a r d Randolph's appeals all the respondents were peremptorily ordered to appear within four months under dire penalties. 1 9 9 In Cooke v. St. Loe the burden was apparently upon appellant to give respondent notice of the admitting Order in Council. 2 0 0 In other cases the burden of notice and summons was placed upon colonial officials. 201 N o case has been found of any entry of appearance by respondents before the Committee, and only one before the Council. 2 0 2 In the second stage of the appellate process, when the Committee had appointed a day for hearing, summonses would issue to all parties to attend. 2 0 3 Such summons might be affixed upon the E x c h a n g e in lieu of personal service. 204 In criminal causes, viz., causes in which appeals were taken from fines imposed, a procedure was adopted slightly different from that current in civil appeals. In these cases it was customary to transmit appellant's petition and appeal to the governor to answer before the appeal was heard. 2 0 5 T h e govthat the judgment be affirmed and the appeal finally dismissed from the Board (PC 2/70/ 107; CSP, Col., 1681-85, # 1 5 1 3 ) . The Barefoot v. Wadleigh appeal ran a similar course; see PC ι/ηο/β, 107; CSP, Col., 1681-85, # 1 3 5 9 , 1432, 1448. It is alleged that Wadleigh took advantage of the absence of Edward Randolph, counsel for the appellants (ibid., # 1 0 1 2 , XIV; # 1 0 1 3 III) to have the appeals dismissed by the Council Board (ibid., #1701). 198 See CO 1 / 5 1 / 7 0 XIII; 71 II. 199 2 APC, Col., # 4 4 . 200 PC 2 / 7 1 / 3 3 0 ; PC 2/72/466. But respondent here was in the royal service. 201 Bland v. Codd (PC 2/69/541); Thayre v. Savage (PC 2/69/643). 202 See Bland v. Codd (PC 2/70/235). Compare the entry of an appearance by appellant William Vaughan in several New Hampshire appeals (PC 2 / 7 1 / 2 9 2 ) . 203 CSP, Col., 1681-85, #1374, 1377, 1431-32. For the form of this Committee summons see CO 28/2/100, 103. 204 See CO 391/4/249. 205 See Hanson v. Rex, a Barbados appeal against a £ 150 fine (CSP, Col., 1681-85,

# 4 8 4 , 515, 791). For Hanson's petition and appeal see ibid., # 4 6 9 . Governor Dutton was also ordered to answer two subsequent petitions of Hanson (ibid., # 1 1 6 7 ) , in which two further appeals were taken (ibid., # 1 0 4 0 ) . In Witham v. Rex, a Barbados appeal against three fines totaling £ 11,000, the petition and appeal of Sir John Witham was sent to Governor Dutton to answer (CSP, Col., 1685-88, # 1 1 3 ) . No answer was returned from Barbados, but at the hearing before the Committee, Dutton and Henry Walrond, who had presided at the Court of Grand Sessions, were ordered to answer the petition and appeal (ibid., # 4 0 0 ) . For the answers of Dutton and Walrond see ibid., # 4 1 3 - 1 4 . The answer of Dutton was transmitted to Witham (ibid., # 4 1 2 ) , who made replication thereto (ibid., # 4 2 9 , 430). After these preliminaries, the appeal was heard (ibid., # 4 4 0 ) . The petition and appeal of John Goldringham and Ralph Lane from ¿ 5 0 fines imposed in Barbados was referred to Governor Dutton to show cause why the fines should not be remitted (ibid., # 5 1 6 , 518); The answer of Dutton pleaded ignorance of the matter (ibid., # 5 5 0 ) ; upon consideration of the petition the Committee

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eraor might be ordered or given the opportunity to appear and answer personally; 2 0 8 for in these criminal causes, confined to the insular possessions, upon questions of law were superimposed political considerations. These appeals were usually only one form of attempt to secure relief against arbitrary colonial executives or to sow discredit for factional reasons. 207 A t this period imperial control had not made effective strides in coping with the personnel of these governments. 208 Therefore, it is not surprising to see an appeal merging into a complaint or being instrumental in effecting the recall of a governor. 2 0 9 The first step in the normal Committee procedure in hearing an appeal on the merits was the reading of the petition of appeal. Then the parties attending with their counsel were called in, and the oral argument of counsel was heard, 2 1 0 for in most cases both parties appear to have been represented by counsel. 211 Some preliminary "pleadings" preceded the hearing of the merits reported the prosecution vexatious and recommended remission of the fines (ibid., # 4 9 4 ; PC 2 / 7 1 / 2 2 2 ) . In Hallett v. Rex appeals were taken from a sentence of a Barbados Court of Oyer and Terminer of August 29, 1692, imposing a ¿ 3 5 0 fine ( C S P , Col., 1689-92, # 2 4 1 7 ) and from the confirmation by the Governor and Council of an August 24, 1692, judgment of the Court of Exchequer forfeiting a ¿2,000 recognizance for good behavior (ibid., #2681, 2683). The governor also answered the petition of appellant in this cause (CO 3 9 1 / 8 / 1 5 0 ) . Governor Kendall was given notice of the hearing (CSP, Col., 1693-96, # 2 1 6 6 ) and appears to have attended thereat. He was probably represented by Littleton, the Barbados agent (CO 3 9 1 / 8 / 150). 209 An enquiry by the Committee into an appeal and complaints by Samuel Hanson against Governor Dutton of Barbados was deferred until the arrival of Dutton (CSP, Col., 1681-85, # 9 3 5 ) · ' η Witham v. Rex (supra, n. 205) the parties were ordered to come home without delay (CSP, Col., 1685-88, # 9 7 ) ; cf. Hallett v. Rex, supra, n. 205. 207 See the accusations and counteraccusations in Hanson v. Rex (CSP, Col., 1681-85, #791. 797, 826, 9 1 5 ) . Some of Hanson's complaints were investigated before his appeal was heard (ibid., # 1 0 1 4 ) . 208 The first effective step and the measure which curtailed criminal appeals during the next century was the 1700 Act of Parliament to punish plantation governors for crimes com-

mitted in the plantations, 1 1 and 1 2 William III, c. 12. 209 See the articles of misdemeanor exhibited by Hanson against Governor Dutton of Barbados (CSP, Col., 1681-85, # 1 4 0 9 ) . Dutton was ordered to answer these by the Council Board (PC 2/70/75). See his answer in CSP, Col., 1681-85, # 1 4 3 5 ; cf. Harlow, op. cil., 258-59. Governor Goddard of Bermuda was recalled in part for his prosecutions of Isaac Richier, which were revealed upon petitions for leave to appeal (PC 2 / 7 7 / 1 2 ; cf. PC 2/76/241). 210 See inter alia CO 3 9 1 / 6 / 2 7 , 1 1 2 , 1 1 9 ; CO 3 9 ! / 7 / 8 o ; CO 3 9 1 / 8 / 7 1 . In at least one appeal printed "cases" were used by both parties (Sharpe v. Dun, CO 2 8 / 2 / 1 0 6 I, II). The appellant's Case recited the facts in the cause and the lower court proceedings therein, setting forth the allegations of errors below at great length. The main issue was whether the statute of non-claime extended to the cause; appellant's Case terminated with six reasons why it should so extend. 211 Cf. the hearing of three William Vaughan appeals from New Hampshire; in the first appeal no counsel was heard, seemingly; in the other two only appellant counsel was heard (CO 3 9 1 / 6 / 3 8 - 3 9 ) . But in the Orders in Council based on the Committee reports it is stated that both counsel were heard in all three appeals (PC 2 / 7 1 / 3 5 5 - 5 6 ) . Where a colonial official was involved, he might be represented by the Attorney General (CO 391/6/137).

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212

in some instances, but this procedure is anomalous. For the most part appeals were heard in one day 2 1 s and in the regular course of Committee routine. Owing to the vagaries of infant provincial jurisprudence, all the appeals coming before the Committee could not be decided from the law reports and statute books alone. Witnesses might be called before the Committee in the course of a hearing to discover the norm of judicial practice in the court below. 214 Further, testimony might be heard as to whether such norm was violated in the case at bar. 218 The Attorney General might be consulted by the Committee when doubts arose on a question of law. 2 1 · But for the most part the Committee arrived at its own conclusions upon arguments of counsel as to the law applicable in a given appeal. 217 Coming now to the question of the scope of Committee appellate hearings, we must remember that the Committee reviewed the judgments of common law courts, the decrees of chancery courts, and the sentences of admiralty courts, and both civil and criminal matters. Therefore, it is necessary to examine each jurisdictional branch separately in determining the scope and nature of the review powers exercised. Considering first the common law jurisdiction, can these "appeals" be considered in the nature of writs of error? 2 1 8 Several distinctions are immediately patent from the commission and instructional regulation of conciliar appeals. Under English writ of error 212 In Witham v. Rex an answer was ordered to the petition of appeal and a replication to the answer (CO 391/5/197, 202; CSP, Col., 1685-88, # 4 1 4 , 429, 430). An answer by respondent to the petition and appeal is indicated in a few other instances; see Bland v. Codd (PC 2/70/242; CSP, Col., 1681-85. # 1 8 8 7 ) ; Scott v. Dyer (CO 391/6/27). =>' Cf. Sharpe v. Dun (CSP, Col., ι6^ί~φ, # 1 9 6 7 , 1977) where hearings took place on two different days before it was recommended that the Council hear the appeal. A cause might be heard on one day and the report thereon drawn up on another; see Raynesford v. Gorges (CSP, Col., ¡685-88, # 1 5 2 0 , 1540). At times more than one appeal was heard at a single meeting; see CO 391/6/38 (three William Vaughan appeals). - 1 4 In Hanson v. Rex five persons were sworn and gave testimony as to the usual practice at the Barbados Grand Sessions in the imposition of fines (CSP, Col., 1681-85, # 1 2 9 0 ) . 215 Two persons were sworn in Hanson v. Rex who testified that no paper was sent around at the Barbados Grand Sessions to ascertain the amount of the fine to be im-

posed on Hanson—a seeming departure from local practice (ibid., # 1 3 0 1 ) . 21 · Ι η Hanson v. Rex the Attorney General was ordered to consider an Act for holding Grand Sessions in Barbados, and to report as to the Governor's power to fine without the concurrence of the Council (ibid., # 1 2 9 0 ) . 21T Appellant in Hanson v. Rex, either ignorant or distrustful of the usual procedure, petitioned that his case be referred to "the Judges of the Common Law and the Court of Admiralty" (ibid., #1040 I). 218 The lower phase of the judicial hierarchy apparendy contemplated writ of error proceedings by the respective governors and councils, for the normal instructions directed appeals thereto "in cases of error" (1 Labaree, Royal Instructions, #442, 445, 448). But note the omission of this phrase in the Bermuda instructions from 1690 to 1702 (ibid., # 4 4 5 ) . For the presence of this phrase in commissions see 3 Doc. Rei. Col. Hist. N.Y., 379, 539, 625, 829; ef. the argument in Dutton v. Howell, Shower, P.C. 24, 33, and the mention of the sending a writ of error to Jamaica in the case of one Allingham (CSP, Dom., 1679-80, 567).

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p r a c t i c e n o m i n i m u m e x i s t e d , 2 1 9 a n d there w a s n o t i m e l i m i t a t i o n f o r t a k i n g a w r i t of e r r o r . 2 2 0 F u r t h e r , a w r i t of error s u s p e n d e d e x e c u t i o n , security w a s necessary in m a n y c a s e s .

although

221

A s to the n a t u r e of the record t r a n s m i t t e d f r o m the colonial courts, the u s u a l conciliar o r d e r d i r e c t e d the g o v e r n o r to t r a n s m i t a u t h e n t i c copies of all p r o c e e d i n g s in the c a u s e u n d e r s e a l . 2 2 2 B u t i n s o m e instances u p o n a d m i s sion of a n appeal f r e e d o m to take f u r t h e r e v i d e n c e w a s also g r a n t e d

the

p a r t i e s . 2 2 3 T h e tenors of the records t r a n s m i t t e d e x h i b i t e d v a r i a n c e , in the case of the N e w E n g l a n d colonies, w i t h E n g l i s h s t a n d a r d s . F o r in these g o v e r n m e n t s u p o n appeal it w a s c u s t o m a r y to r e v i e w b o t h l a w a n d fact, so that all the e v i d e n c e s u b m i t t e d i n a cause w a s i n c o r p o r a t e d in the r e c o r d . 2 2 4 I n the a c t u a l h e a r i n g s the C o m m i t t e e e v i d e n c e d n o disposition to c o n f i n e itself to r e v i e w of errors of f a c t a p p e a r i n g in the r e c o r d t r a n s m i t t e d f r o m

below.

R a t h e r , since there w a s n o discernible restraint u p o n e x a m i n a t i o n of w i t n e s s e s viva voce a n d the a d m i s s i o n of n e w e v i d e n c e , these h e a r i n g s w e r e essentially •JIB 2 Tidd, Practice of the Courts of King'i Bench and Common Pleas ( 1 8 2 8 ) , 1 1 3 4 . For the colonial instructional and commission minimum requirements see supra, p. 80 et seq. - - " S e e the recital in 10 and u William III, c. 14. For the 14 day limitation in conciliar appeals see supra, p. 81 et seq. 221

2 Tidd, op. cit., i l 4 5 , i l 4 9 et seq. Coinparc the conciliar regulations, discussed supra, pp. 105-6. 222 Lane v. Stede (PC 2 / 7 3 / 2 4 3 ) ; Hubbard v. Smailes (PC 2/73/424); Elletson v. Danieli (PC 2/74/274); White v. de Castillo (PC 2/75Λ53)· 223 See Vaughan v. Mason (N.H.; 8 N.H. Hist. Soc. Coll., 243-44); Lane v. Stede (Barb.; PC 2 / 7 3 / 2 4 3 ; PC 2 / 7 5 / 5 0 ; PC 2/76/ 1 7 9 ) . In Wright v. Cornwall (N.Y.) appellants were ordered to present their exceptions to the judgment appealed from and the respondents to answer thereto. Thereupon, a commission was to issue from the King to the governor of New York directing him to make inquiry of the facts mentioned in said exceptions and answer and to certify the same to the King in order to final determination of the appeal (CO 3 9 1 / 4 / 1 4 3 - 4 4 ) . In admitting several appeals of Jahleel Brenton from sentences of the Massachusetts Bay Court of Assistants in Navigation Acts seizures, the Council Board directed Governor Phips to give "directions that all Persons be permitted without Interruption to give Evidence, or discouragement to any to give

their Testimony in behalfe of the Appellant, And that all Authentick Copies of all proceedings in the said Cases and of all Depositions taken thereon be transmitted" to the Committee under the Provincial seal (2 APC, Col., # 4 8 0 ) . Cf. Thayre v. Savage (Mass.), where the town of Braintree was ordered to transmit an authentic copy of an Indian deed and the Massachusetts Bay government to send such papers and records as should be necessary for final decision in the cause (PC 2/69/643). 224 For the statutory bases in Massachusetts Bay of appeal upon both law and fact to an appellate body where further jury trial was had upon issues of fact see Col. Laws Mass., 1672-86 (ed. W. H. Whitmore, 1890), 3, 4, 129; ι Acts and Res. Prot/. Mais. Bay, 7 2 - 7 3 . For the system in operation see 1 Ree. Ct. Assistants Mass. Bay, passim; cf. 1 Records Suffolk County Court, 1671-80, 29 Pub. Col. Soc. Mass. ( 1 9 3 3 ) , xlv. For the scant New Hampshire statutory authority see the provisions requiring jury trial upon appeals, 1 Laws of NJi., 25, 543-44. On colonial practice of review of both law and fact cf. Reinsch, The English Common Law in the Early American Colonies, 1 Select Essays in Anglo-American Legal History ( 1 9 0 7 ) , 412. For the record transmitted in Barefoot v. Wadleigh from New Hampshire see CO 1 / 5 1 / 7 0 II-XII. For some discussion of the later Rhode Island and Connecticut systems see infra, p. 365 et seq.

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III

228

hearings de novo and had no counterpart in English writ of error proceedings. 229 Coming now to the province of the criminal appeal, it must be cautioned that although called "appeals," some were rather in the nature of fine remissions by royal clemency.227 There was little adherence to English writ of error practice in these cases. By the common law rules of this period, writs of error in criminal causes were granted defendants only by royal grace.228 Most, but not all, of the criminal appeals before the Committee met this requirement.229 On the other hand, at common law use of the bill of exceptions was not allowed in such cases,2*0 whereas in Committee practice both appellants and the crown were afforded virtually unlimited opportunity to take further evidence after admission of appeals.231 The rationale of such practice, as we have 225 In Ward v. Palmer (N.Y.) the issue was whether a payment made by respondent to appellant was in part payment of the bond sued on or on another separate and distinct debt. Letters written by respondent after the proceedings below confessing the principal debt as still due were read at the hearing. For further proof, divers witnesses deposed that the money was paid in satisfaction of a distinct debt arising from another transaction (CO 3 9 ΐ / 3 / · 4 ' - 4 3 . 144-48; CO 1 / 4 4 / 3 7 ; cf. CO 1/44/39 VII; CSP, Col., 1677-80, # 1 3 1 6 V, VI). In Sharpe v. Dun (Barb.) William Brook and Sir Thomas Momperson were examined by the Committee as to the factual allegations in the case (CO 391/8/71-74). But note that this appeal was not determined by the Committee, but by the Council Board (PC 2/76/ 164, 168). The scope or the hearing also appears indirectly. In Bland v. Codd (Va.) the parties, encountering difficulty in bringing their proofs and witnesses to England, agreed to refer the matter to local arbitration (CO 391/ 5/104). In Witham v. Gray (Barb.) the executors of appellant petidoned for further time to collect evidence in Barbados (CSP, Col., 1689-92, #1354). We have already seen the orders which issued in several causes upon admission of appeals for the taking of evidence below (supra, n. 223). For the latitude given appellant in Vaughan v. Mason to prove his title at the Committee hearing see CO 391/ 6/27-29· 226

These appeals were not in the nature of writs of error coram nobis for errors in fact. The factual errors were not limited to those facts which would affect the validity and regularity of the proceedings below; see

Stephen, Treatise on the Principlet of Pleading (3d ed., 1835), 118-19. Compare as to common law practice, Holt, C. J. in Knoll's Case (3 Salk• 145). that it "is beneath the dignity of the House of Peers (that being the supreme judicature) to try matters of fact." 227 See Goldringham and Lane v. Rex (PC 2/71/222; CO 391/5/239. 248); Witham v. Rex (CO 391/5/222). 228 Crawle v. Crawle (1 Vern. 170); T h e Rioters' Case (ibid., 175); cf. 1 Eq. Cat. Ab. 414. This stand was not modified until 1705 when in Regina v. Paty et al. (2 Salk.. 504), ten judges of King's Bench "were of opinion, that the Queen could not deny the writ of error, but it was grantable ex debito justitiae, except only in treason or felony." 228 In Goldringham and Lane v. Rex no preliminary application was made for leave to appeal from Barbados fine impositions (PC 2/71/174)· 230 Coke, Second Institute, 426; 1 Stephen, History of the Criminal Law of England (1883), 309, 373. 231 In Hanson v. Rex, an appeal from a ¿ 1 5 0 fine imposed by the Barbados Court of Grand Sessions in April, 1681 (CSP, Col., 1681-85, #469; cf. ibid., # 9 1 5 ) , the Committee heard the parties (ibid., #1290, 1301, 1341, 1352) and considered various depositions and interrogatories (CO i / 5 i / # 9 5 , 97; CO 1/52/ #90) as well as the proceedings appealed from and documents relating thereto (CSP, Col., 1681-85, #791 I-XVI). Upon this examination the Committee advised and it was ordered that the sentence was irregular, but that the charge was so serious that it should receive Committee re-examination and that five

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seen, rested in the interrelation of the criminal appeal and complaints to the crown against colonial executives.232 In the few chancery appeals taken during this period there is little that appears exceptional in the appellate scope, 233 but it must be remembered that months be allowed to collect the necessary evidence in the island. Governor Dutton, who had imposed the fine in a judicial capacity, was to cause the necessary proofs to be taken (ibid., # 1 3 6 8 ) . That Dutton was to examine witnesses on both sides was unpalatable to Hanson (he had petitioned lor commissioners, ibid., # 1 3 3 4 ) , who turned to an action for damages in King's Bench (ibid., #1403). Thereupon, the infliction of a new fine upon Hanson was remitted to the Court of Grand Sessions (ibid., # 1 4 0 7 ) . In Witham v. Rex, a 1685 appeal from three fines amounting to ¿11,000 imposed by the Barbados Court of Grand Sessions, it was ordered that liberty be given in the island without discouragement for the taking of the necessary evidence (ibid., 1685-88, #94-95, 97). These fines were the result of the refusal of Sir John Witham, who had acted as lieutenant-governor, to render to Governor Dutton upon his arrival in the island the accrued salary and perquisites of said office (ibid., # 9 4 ) · Cf. on the nature of the high crimes and misdemeanors and bribery charged, ibid., 1681-85. # 2 0 2 3 . The presiding judge at the Sessions was Henry Walrond, who had been dismissed by Witham from the post of lieutenant-general (ibid., ¡685-88, #95)· Commissioners were appointed by the Barbados Council (ibid., # 2 4 7 - 4 8 ) , but the commission was not free from interference by Walrond and Dutton (ibid., # 2 5 4 - 5 6 , 265, 270, 300, 308, 336, 358). After hearing the appeal (ibid., # 4 ° ° . 421, 43°. 44"). the Committee concluded that the proceedings appealed from were violent and malicious, and recommended that the fines be wholly remitted (ibid., # 4 3 9 ) · This was accordingly ordered by the Council Board (PC 2 / 7 1 / 1 5 1 ) · Following the entry of an appeal in Vaughan v. Rex (PC 2 / 7 1 / 7 0 ) , a conciliar letter issued to insure freedom of evidence collection in this and several other appeals (8 N.H. Hist. Soc. Coll., 243-44)· This appeal was from a £ 4 0 fine imposed at May 6, 1684, Quarter Sessions for assault upon a royal official (Petition and Appeal, Samuel Allen MSS). In Halle« v. Rex, a 1693 appeal from a ¿ 3 5 0 fine imposed in Bermuda, the Council

Board ordered that permission be given appellant for examination of all persons that should give evidence, without molestation or discountenance to any whom appellant desired to be examined in his behalf (PC 2/75/247). Much of the evidence transmitted concerned the reluctance of the grand jury to find a true bill to an indictment that the words for which Hallett was fined were spoken "seditiously, maliciously, and rebelliously." A true bill was finally found on the condition that it was understood that the finding did not extend to the above adverbs (CO 2 8 / 2 / 1 1 6 I). The depositions in this respect of Malatia Holder, one of the jury, were read at the appeal hearing. The Committee finally were of the opinion that it did not appear that Hallett had opposed the cutting down of his wood with any other intention than that it might be appraised and that he had received no recompense for such cutting (CO 3 9 1 / 8 / 1 5 0 5 1 ) . The fine was therefore ordered remitted (PC 2/76/237). In 1693/4 Isaac Richier was given leave to appeal from all prosecutions in Bermuda, with no obstruction to be given to the examination of witnesses and the taking of depositions; copies thereof were to be transmitted to the Council Board under seal (PC 2/75/377). When this order was disregarded, a further order issued that Governor Goddard grant a commission to six persons equally divided in sympathies to take evidence in Richier's behalf (PC 2/76/241; CO 3 9 1 / 8 / 1 2 9 ) . But this appeal was not heard during the existence of the Committee of Trade and Plantations. 2 3 2 See supra, pp. 107-8. 3 3 3 One of the appeals entered by William Vaughan following the general liberty of entering appeals granted him by the Council Board (PC 2/71/65) was Vaughan v. Martin, an appeal from a chancery decree (PC 2 / 71/70). A copy of the petition and appeal is among the Samuel Allen MSS. Seemingly a conciliar order giving liberty to take any evidence in Vaughan's appeals was directed to Vaughan v. Mason, yet included this chancery appeal (8 N.H. Hist. Soc. Coll., 243-44). But at the hearing of the appeal there is no mention of presentation of such further evi-

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" 3

a well-defined standard of English practice was lacking, since the appellate jurisdiction of the House of Lords in equity was immature.284 In the field of admiralty jurisdiction we find the same latitude in what was taken under review, 235 but here the conflict with established civil law procedure was not as conspicuous.236 In spite of the fact that in many particulars Committee procedure was sui generis, some slight disposition to conform with common law standards may be detected. In Sharpe v. Dun, a 1695 appeal from a judgment of the Barbados Governor and Council affirming the Court of Common Pleas, respondent counsel in the hearing before the Committee urged that certain Barbados acts dence (CO 391/6/38-40). The other chanccry appeals give no inkling of the admission of evidence dehors the record. 234 See Macqueen, A Practical Treatise on the Appellate Jurisdiction of the House of Lords and Privy Council, 70 et seq.; i Holdsworth, HEL, 372-75. By a July 13, 1678, standing order of the House of Lords all chancery appeals were to be presented within fourteen days after the first day of every session or meeting of Parliament after a recess. If the decree was made while Parliament was sitting, the petition might be presented within fourteen days after the decree was made and entered (13 /. H. of L., 286). On December 10, 1678, it was ordered that in all cases of appeal from the courts of Westminster Hall appellant was to give sufficient security in the court below for the performance of the decree or judgment appealed from in case of affirmance. From the time of the giving such security, all proceedings below were to cease (ibid., 4 1 1 ) . But by a November 20, 1680, order appellant, in the above appellate cases, before answer was to give security to the Clerk of Parliament by recognizance to the crown in the sum of £ 1 0 0 to pay such costs to respondent as the court should appoint in case of affirmance. The earlier 1678 order was repealed (ibid., 680). At this period, House of Lords practice permitted viva voce examination of witnesses thus examined in Chancery (Macqueen, op cit., 172-73). Witnesses not so examined below were excluded from appellate introduction. See Needier v. Kendall (Finch's Rep. 468-69). A more complete report is in Singleton MS, 9/27. In comparing these regulations with those contained in the instructions and commissions it should be borne in mind that there is some question whether the latter regulations extended to chancery appeals; see supra, pp. 87-88.

233 In Mingham v. Martin (Jam.) the Committee reported that it had heard counsel for the parties and "such evidence as they would produce," and, having considered the same, were of opinion that the condemnation was not warranted by the proofs in the cause (PC 2/68/267; cf. CO 391/3/257-59)· At least one appeal indicates belief that new evidence could be introduced at the Council Board; see St. Loe v. Kirwan, where the appeal seems to have been taken from the judgment below "in regard the same was obtained because the persons summoned at the triall to evidence for his Majestic did not appeare" (PC 2/72/476). There is also evidence that the record made below was not considered sufficient upon appeal; see petition of Capt. S t Loe complaining of molestation for performance of his duty in seizing ships engaged in illegal trading and praying indemnification, as he could not produce the same evidence in England as in the West Indies (PC 2/72/458). For a specimen vice-admiralty court record of this period see CO 1/59/51· 236 We have seen above that it is questionable whether the provisions of gubernatorial instructions and commissions as to appeals extended to vice-admiralty appeals. Assuming the extension, let us compare civil law regulations with the instructional regulations. At civil law no minimum was required (Clerke, Praxis curiae admiralitatis Angliae [1722) 75, 79). Ten days were allowed in which to interpose an appeal (ibid., 75; 2 Browne, Compendious View of the Civil Law [1802], 436). Bail had to be given by appellant to abide the decree of the appellate court, to pay costs, and to confirm the acts of his proctor (Clerke, op. cit., 83). New evidence could apparently be adduced upon appeal (Clerke, op cit., 83; Clerke, Praxis ecclesiastica [1684], 335), but cf. 2 Browne, op. cit., 437, note 50.

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were given in evidence to a jury who upon such acts and other matters before them rendered their verdict, and that no error could be assigned upon such verdict.237 Although judgment below was affirmed,238 we have seen no evidence that this objection was seriously entertained. This case was the forerunner of the controversy of the next century centering around the colonial use of general and special verdicts, bills of exception, and appeals from judgments upon jury verdicts.239 The form of the report rendered by the Committee merely summarized the proceedings below and advised reversal, affirmance, or variance. Such bare form was purposely adopted. For after having heard the first New York appeal, Ward v. Palmer, on March 4,1679/80, the Lords Committee entered into debate, "whether it may be proper, in the affirmation of sentences by his Majesty in Council, to recite the allegations and proofs on both sides." The Lords finally were "of opinion that they ought to contain the bare resolution of His Majesty in Council upon the case as it is reported, least otherwise they might be subjected to the cavils of malicious persons." 2 4 0 As we have seen, in contemporaneous Channel Islands procedure the rehearing was a prominent feature of conciliar practice.241 But in the colonial field, in only one instance was a rehearing sought after a cause had been fully heard and reported. This single application was refused.242 In the various instructions issued regulating appeals, security was to be posted by appellant to answer "costs," 2 4 3 or "costs and damages," 244 or "charges" 2 4 5 awarded by the King in Council. Early in its career the Committee seems to have assumed that it possessed the power to award costs.246 After the appeals of William Vaughan of New Hampshire were decided by the Committee, petitions for allowance of costs were presented by the parties; 247 the Committee agreed to allow the respective successful parties £3.0 costs.248 It was also declared that in all appeals brought from the colonies the sum of £20 costs should be allowed the party in whose favor judgment was given. 249 But it is questionable whether this order was followed in later prac237

CO 3 9 1 / 8 / 7 1 . PC 2/76/168. 239 See infra, Chap. VI. 240 CO 3 9 1 / 3 / 1 4 8 . 241 See supra, pp. 98-99. 242 CSP, Col., 1685-88, # 4 4 7 . 243 ι Labaree, Royal Instructions, # 4 4 3 . 244 Ibid., # 4 4 4 , 449. 245 Ibid., # 4 4 5 , 446. 246 In Mingham v. Martin, an appeal from a Jamaica Vice-Admiralty Court condemnation, the Committee advised restitution without costs, since the seizure was colorable and the

238

case had clivers circumstances of suspicion about it (PC 2/68/267); see also CSP, Col., 1677-80, #1313. 247 Ibid., 1685-88, # 1 0 4 7 - 4 8 ; also ibid., #1002. 2is Ibid., # 1 0 4 5 ; PC 2 / 7 1 / 3 5 5 - 5 7 . 249 CSP, Col., 1685-88, # 1 0 4 6 . It is not possible to determine how the figure of ¿ 20 was arrived at. Weare asked for £ 6 9 odd costs, Cranfield for / 3 1 odd in two appeals; Mason's claims were much higher, see ibid., # 1 0 0 2 , 1047-48. Note that in the earlier New York appeal of Ward v. Palmer, appellant set his

T H E LORDS COMMITTEE

115

tice.250 Such standing order would appear to operate inequitably in view of the fact that appeals were so diverse in their nature and procedural course. Distinguishing "costs" from "damages" it appears that the Council either could not or would not award damages upon appeal. 251 THE MASON LITIGATION IN N E W

HAMPSHIRE

For a more consecutive appreciation of the Committee and the Council Board in operation let us consider the conciliar career of a single cause. A celebrated litigation much before the Council and the Committee concerned the claims of the heirs of John Mason to lands in the royal province of N e w Hampshire. Enforcement of these claims was vigorously resisted by settlers upon the lands under alleged Indian and Massachusetts Bay grants. 252 In the commission to President Cutt in 1679 the possibility of some dispute as to the ownership of lands was contemplated. T h e commission recognized the validity of the Mason claims and empowered President Cutt and the Council to interpose and reconcile all differences between Robert Mason and the inhabitants of the province. If the President and Council could not effect a reconciliation in a cause, they were to send such cause to England, together with their opinions thereon, for determination by the K i n g in Council. 2 5 3 T h e inhabitants, however, were suspicious of any extra-provincial settlement of the disputes, and legislation was passed which in effect tended to nullify the operation of the commission provisions. 254 T h e clause allowing appeals to the K i n g in Council charges in prosecuting the appeal at £, 20 (CSP, Col., 1677-80, # 1 3 1 1 I). 2 5 0 There is no mention of £ 20 costs in any later affirming or reversing Order in Council; cf. Scott v. Dyer, where petition was made and granted for allowance of certain costs much greater than ¿20 {ibid., 1685-88, #1565, 1739)· 2 5 1 Appellant, during pendency of his appeal in Hanson v. Rex, sued Gov. Dutton in the English law courts claiming damages for the same acts involved in the appeal (1bid., 1681-85, # 1 3 8 4 ) . Hanson stated that he was informed that the Council could not award damages; he also objected to the manner in which the Committee was handling his appeals as detrimental to his interests (ibid., # 1 3 9 0 ) . T h e Lords Committee left it to the free election of Hanson whether he would prosecute his action at law or attend the determination of his appeals at the Council Board (ibid., # 1 3 9 1 ) . When Hanson elected to proceed with his action at law in England, the appeals were ordered dismissed; but the

rehearing of a criminal cause in which Hanson was defendant was remitted to the Court of Grand Sessions in Barbados (PC 2/70/75; CSP, Col., 1681-85, # 1 4 0 8 , 1410; cf. PC 2/70/94, 99). Note that appellant was directed to sue locally for damages in Mingham v. Martin, an appeal from a Jamaica judgment in a defamation action (PC 2/68/267). 252 p r y ; f j e w Hampshire As a Royal Province, 209 et seq. 253 ι Doc. and Ree. Rei. Prov. N.H., 381-82. It was apparently claimed in some quarters that this provision in the commission was provided for cases in which Mason's claim was flatly rejected and not limited to disputes incidental to enforcing a recognized right (Trans. Orig. Doc. Rei. Ν.H., 92; 17 Ν.H. Stale Papers, 5 4 5 - 4 6 ) ; see also Cranfield's opinion, infra. 2 5 4 The first General Assembly of March 16, 1679/80, enacted inter alia that all lands, townships, and town-grants with all other grants lying within the limits of the province and all other rights and properties should stand good and be confirmed to the towns

ιι6

T H E LORDS

COMMITTEE

was also characterized as a possible means for malignant persons to obstruct justice in the province. 25 ® Mason encountered widespread opposition to his claims and finally was forced to leave the province, after summoning the leaders of the opposition to appear before the K i n g in Council to establish their titles; in default of such appearance, Mason threatened to petition for final judgment in his favor. 2 5 6 W h e n a commission was issued to the new president, Cranfield, the Mason claims were dealt with in terms substantially similar to the Cutt commission. 2 3 7 But again the settlers objected to this method of settlement and insisted upon their rights as English subjects to trials in the province. 258 T h e method to be used in settlement of the claims of Mason within the territory of Massachusetts Bay was claimed as an applicable precedent in N e w Hampshire. 2 5 9 Cranfield, in the first blush of office, was also of the opinion that if Mason had obtained an order for a trial in the province the dispute would have been nearer an end. 2 8 0 Later he became disillusioned as to the quality of the opposition, 2 ® 1 but still was of the opinion that trials held in the province constituted the best means of resolving the dispute. 2 6 2 After Mason had endeavored in and persons concerned in the same state and condition as before the late change of government. Also, that all controversies concerning land titles should be finally determined only by a jury of twelve men chosen by the freemen of each town, according to law and custom ( i Laws of N.H., 23). This legislation was objected to by Mason ( 1 7 N.H. Slate Papers, 560; Tram. Orig. Doc. Rei. N.H., 9 1 - 9 2 ) . The former act was alleged to be repugnant to the laws of England and the commission to Cranfield and the Council (ibid., 95, 98). 255 ι Doc. and Ree. Rei. Prov. NJ{., 412. 258 Ibid., 560-62. 257 17 NJi. State Papers, 5 8 1 . 258 I Doc. and Ree. Rei. Prov. NJi., 509; CSP, Col., 1681-85, #842. 259 ι Doc. and Ree. Rei. Prov. Ν.H., 509, 5 1 1 ; 17 ΝΉ. State Papers, 581. When a boundary dispute between Massachusetts Bay and Mason and Gorges was referred to the Lords Chief Justices of King's Bench and Common Pleas in 1677, the latter reported it "most proper to direct the parties to have recourse thither for the decision of any question of property until it shall appear that there is just cause of complaint against the courts of justice there for injustice or grievance" (1 Doc. and Ree. Re!. Prov. NJH., 3 3 5 - 3 6 ) . By a royal proclamation of June 23, 1682, Mason was allowed to

prosecute his rights in the courts of Massachusetts Bay; if justice was delayed or a judgment given wherein Mason did not acquiesce, he was given permission to appeal to the King in Council. All persons concerned were obliged to answer such appeal within six months after it was made (29 N.H. State Papers, 1 2 2 ) . It was suggested that an indifferent jury might be secured out of the neighboring province (1 Doc. and Ree. Rei. Prov. Ν.Η., 5iι). 260 17 N.H. State Papers, 5 7 1 - 7 2 . 261 Fry, op. cit., 216. See also the economic interest of Cranfield in the securing of quitrents (Bond, The Quit-Rent System in the American Colonies [ 1 9 1 9 ] , 56-58). 202 Cranfield wrote "that without a tryall first had upon the place as hath been directed in his Majesties letters to the Bostoners which these his Stubborn Opposers doe depend upon, before his Majesty in Councill can give a finali Judgment against them, and all this is only to gain time. I am therefore of opinion that an Order be directed to me to admitt of tryals between him and the Tertenants as in the Boston colony and then they will come to his terms rather than to be a charge and trouble to defend a had title, and answer his Appeals in England" ( 1 7 N.H. State Papers, 58').

T H E LORDS

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» 7

v a i n ( o r a y e a r to effect a n a g r e e m e n t w i t h the opposition u n d e r the terms of the c o m m i s s i o n , h e b r o u g h t actions against m a n y of the p r i n c i p a l s . 2 " 3 In a trial i n N o v e m b e r , 1 6 8 3 , R i c h a r d W a l d r o n , as defendant, limited his efforts to s o m e p r e l i m i n a r y m a n e u v e r s , e m p h a s i z i n g the importance of the trial to the inhabitants of the p r o v i n c e

264

a n d introducing no evidence in support of his

title; consequently j u d g m e n t w a s g i v e n for plaintiff M a s o n . 2 8 5

Apparently

in all the other actions b r o u g h t by M a s o n no evidence w a s p r o d u c e d in behalf of the various defendants, and j u d g m e n t w a s almost a l w a y s f o r M a s o n . 2 6 6 It w a s alleged that issue w a s not joined w i t h M a s o n in these trials, not only because o f the partiality of j u d g e s and jurors but also because of a willingness to attend the methods prescribed in the royal c o m m i s s i o n . 2 6 7 M a n y of the j u d g m e n t s in M a s o n ' s f a v o r availed h i m not, because execution w a s defeated by s h o w of f o r c e . 2 6 8 In at least one instance an appeal to the K i n g in C o u n c i l w a s d e m a n d e d and g r a n t e d , 2 6 9 but this lapsed, since no 2ei

lbid., 5 9 1 - 9 1 . To permit such actions was seemingly contrary to the terms of Cr infield's commission, but not unexpected in the light of his expressed views on the subject. ΐβ< Waldron objected against the whole impanelled jury as being persons who lived in the province and owned Mason to be proprietor thereof. Each juryman made oath of his lack of interest in the cause. Whereupon Waldron, in contempt of the court, harangued the audience that his case concerned them all and that if he were cast, all would become tenants of Mason (i Doc. and Ree. Rei. Prov. NM., 503-4); see also ibid., 540. 265 Ibid., 504, 515, note; Samuel Allen MSS. 2ββ Walter Barefoot, council member and judge of the Court of Pleas, swore that "in all the trials the Proprietor hath had, not any one man hath produced any Deed, Evidence or Record to make a title of land" (t Doc. and Ree. Rei. Prov. NM., 504, 5 1 4 - 1 5 , note; cf. the certificate of Richard Chamberlain, province secretary, Samuel Allen MSS). In the action against John Woodman at Great Island in December, 1683, defendant pleaded in bar: ( 1 ) that it was unreasonable that those who had declared their opinions in the controversy and who had recovered land claimed through Mason could be impartial jurors; (2) that Coke, Second Institute, c. 12, p. 157, gave a challenge of jurors who had land depending on the same title as the land in controversy; (3) that by 27 Elizabeth, c. 6, s. 2, jurors returned should have estates of freehold to the clear yearly value of ¿ 4 at least, which not many of the jurors had; (4) that the

proceeding was not according to the governor's commission (3 MS Matt. Archives [Colonial, 7629-/720], 465a). 247 A statement of Nathaniel Weare; see 1 Doc. and Ree. Rei. Prov. NM., 514. A standing jury is alleged to have tried most of the actions (ibid., 538, 576-77; see also ibid., 521). Against the judges it was alleged that several pleas had been refused, and defendants told that the bench would not make record for them by entering their pleas; that the courts refused to read 27 Elizabeth, c. 6, s. 2, Coke, Second Inttitute, c. 12, p. 156, and other statutes (1 Doc. and Ree. Rei. Prov. NM., 538). For the form of the objection based on 27 Elizabeth, c. 6, s. 2, see 8 Coll. NM. Hist. Soc., 320. Since the substance of the statute is misrepresented, it is not surprising to find the plea rejected. Secretary Richard Chamberlain certified that upwards of thirty-six persons had been sworn as jurors in the various actions by Mason who had formerly sat on like actions, that such of the jurors as were excepted against were sworn upon a voire dire that they should not have profit or loss in the cause (Samuel Allen MSS.). In the light of earlier clamors against the method provided by royal commission the defendants ought in equity to have been estopped from raising the point of variance. 2,18 17 N.H. State Papers, 592; 1 Doc. and Ree. Rei. Prov. N.H., 515, note. 2i *lbid., 504, 538, 541. The appeal was from a November 6, 1683, judgment rendered by Barefoot, Fryer, and Greene.

T H E

ιιδ

LORDS

COMMITTEE

security to prosecute the appeal a n d stand the a w a r d w a s g i v e n . 2 7 0 M a s o n also m a d e p u b l i c declarations that in every trial had he w o u l d w a i v e the benefit of the j u d g m e n t , suspend execution, a n d enter into a n e w trial in a n y of the K i n g ' s C o u r t s in W e s t m i n s t e r H a l l , p r o v i d e d security to pay d a m a g e s w a s advanced within a m o n t h . 2 7 1

T h i s offer

failed to b r i n g forth the desired

results.272 H o w e v e r , not all the land title trials in the province issued f a v o r a b l y f o r M a s o n or those c l a i m i n g u n d e r h i m . In Walton Wadleigh,

v. Walford

a n d in Barefoot

v.

both decided in F e b r u a r y , 1 6 8 2 / 3 , j u r ' e s s h o w e d a partiality op-

posed to a n y recognition of M a s o n ' s c l a i m s . 2 7 3 E v e n w h e n no e v i d e n c e w a s i n t r o d u c e d by o n e defendant, the jurors f o u n d f o r h i m . 2 7 4 A p p e a l s to the K i n g in C o u n c i l w e r e taken in both causes, defendants s u m m o n e d , E d w a r d R a n d o l p h w a s authorized to prosecute both a p p e a l s .

275

and

B o t h respond-

ents petitioned the C o u n c i l f o r a h e a r i n g , and their petitions w e r e referred to the C o m m i t t e e . 2 7 8 S i n c e appellants failed to appear before the L o r d s

Com-

mittee in either appeal, it w a s reported and a p p r o v e d by the C o u n c i l B o a r d 270 The reasons why no security was forthcoming differ. Barefoot swore that the appeal was granted provided security be given, but that none of the respondents (Vaughan, Waldron, Weare, Cutt) appeared to give security, which was ordered to be done in open court (ibid., 504); compare ibid., 538, where the blame for the failure to give security is placed on Mason and the provincial secretary. By statutory provisions it would appear that the appeal from this judgment should have been made to the Court of Appeal consisting of the Assembly and the President and Council (1 Laws of N.H., 24, 38). 271 Some confusion exists as to the exact nature of this offer. T w o such offers mention only a new trial in any of his Majesty's courts in Westminster Hall either in the Easter or Trinity terms next ensuing (1 Doc. and Ree. Rei. Prov. NJi., 475; 29 NJi. Siale Papers, 1 3 1 ) . Barefoot and Cranñeld, in their versions of the offer, mention the alternative of a hearing before the King in Council (1 Doc. and Ree. Rei. Prov. NJi., 504; 17 N.H. State Papers, 595). Also, Barefoot makes the offer contingent upon an appeal being taken by defendant from a judgment for Mason (1 Doc. and Ree. Rei. Prov. N.H., 504). Cranfield states that Mason, finding no appeals were being taken, made his offer ( 1 7 N.H. State Papers, 595). The date of the appeal which was taken and lapsed (supra, p. 1 1 7 ) was November 6, 1683. The date of one offer of Mason is put questionably at October 15,

1683 ( ι Doc. and Ree. Rei. Prov. N.H., 475); the other is dated December 5, 1683 (29 NJi. State Papers, 1 3 1 ) . 272 17 N.H. State Papers, 595. 273 In Barefoot v. Wadleigh, appellant, in possession of land under both a Massachusetts Bay grant and a sale from Mason's agent, sold the land in 1669 to Wadleigh, who in 1671 released all tide thereto to appellant, to whom he was heavily indebted, in consideration of a general release. But Wadleigh, by favor of the Massachusetts Bay government, remained in possession, and Barefoot could obtain no relief. In February, 1682/3, Barefoot brought an action for recovery of the land and damages; the jury found for Wadleigh (CSP, Col., 1681-85, # 1 0 1 2 ) . In Walton v. Walford, appellant claimed land by virtue of a grant from Mason confirming a former grant of Mason's agent. The defendants pretended a town grant of 1658 for some of the lands, though never improved. The jury, all possessing lands by virtue of town grants derived from the authority of Massachusetts Bay, found against Walton (ibid., # 1 0 1 3 ) . 274 Wadleigh showed no title and made no defense, but simply impressed upon the jury the significance of his case for their own interests (ibid., # 1 0 1 2 ) . 2 ™ 40 ΝΉ. State Papers, 389-90; CSP, Col, 1681-8;, # 1 0 1 2 XIII, XIV; # 1 0 1 3 II, III. 278 PC 2/70/34, 48. Wadleigh acted as attorney for respondents in Walton v. Walford (CSP, Col., 1681-85, #1221).

T H E LORDS COMMITTEE

n9

on January 23, 1683/4, that both appeals be dismissed. 2 " The return of Wadleigh, crowned with the proverbial success, added to the ferment and disorder in the province, but it is doubtful whether these two appeals had any noticeable effect upon the outcome of the controversy.278 Finally, it was decided in the province to bring the actions of President Cranfield to the attention of the King in Council. Nathaniel Weare traveled to England and presented several petitions to the King in Council in July, 1684.279 The main petition inter alia represented Cranfield's divagation from the terms of his commission in his treatment of the Mason claims.280 The petitions were referred to the Committee, which transmitted them to Cranfield to answer.281 Upon consideration of the answer of Cranfield and the allegations of the petitioners, the Committee reported that Cranfield had not followed his instructions in the Mason claims, that he had caused courts to be held in the province, and that he had permitted titles to land to be decided there and unreasonable costs to be allowed, without first representing the particular causes to the King. 282 It was also represented that William Vaughan, one of the complainants, be allowed to appeal, within a fortnight, to the King in all verdicts and judgments given in New Hampshire in his private cause. Upon hearing this cause, by the relation it bore to the others, the King would be best able to judge the rights of Mason in the province; upon bringing the appeal, all proceedings at law in the province relating to the Mason claims were to be suspended till further notice.283 The Council adopted the report of the Committee, Vaughan entered his several appeals, and Cranfield was notified to suspend all proceedings in re the Mason claims.284 The petition and appeal of Vaughan was then presented 277

PC

2/70/107.

Wadleigh is alleged to have taken

advantage

Ibid.,

#1448,

1512-13;

E n g l a n d , still urged a trial on the place by impartial judges and jurors ( 1 Doc. and Ree.

Rei. Prov. N.H., 525). 281 Doc. and Ree. Rei. Prot/. NJi., PC 2 / 7 0 / 2 0 1 ; 8 Coll. ΝΉ. Hist. Soc.,

of the absence of Randolph to secure these dismissals

(1

544)· 278 279

Ibid.; CSP, Col., 1681-85, # 1 7 0 1 . 8 Coll. NM. Hist. Soc., 3 8 4 - 8 5 ; PC

70/201. 289

2 3 0 - 3 1 . All persons in the colony w e r e to be g i v e n f u l l liberty to m a k e depositions a n d 2 /take copies of all records in the matter.

2 / 7 1 / 6 5 ; 8 Coll. N.H. Hist. Soc., C r a n f i e l d justified his action in that there never had been any complaints as to the hard terms of quit-rents imposed by M a s o n ; the inhabitants had w h o l l y denied the right and title of Mason and refused to become tenants. T h e r e f o r e , C r a n f i e l d felt that he could not mediate, since matters of right m u s t be determined by l a w (CSP, Col., 1681-85, #1895). 288 PC 2 / 7 1 / 6 5 ; 8 Coll. N.H. Hist. Soc., 2 3 8 . 284 be PC 2/71/65, 70, 74; 8 Coll. N.H. Hist. Soc., 2 4 0 - 4 2 . 282

PC

ι Doc. and Ree. Rei. Prov. N.H., 5 1 5 - 1293.8 - 3 9 .

i t w a s represented that Cranfield had become o w n e r of the province; that he had set u p courts wherein both judges and jurors were biased in f a v o r of Mason; that such jury was continual; that Mason had cast forty persons in suits before that same jury, the court rejecting all pleas; that costs in actions were raised f r o m 20s. to £6 which was exacted in specie. For the f o u r annexed petitions see 8 Coll. Λ . Η . Hist. Soc., 2 2 6 - 3 0 . It should noted that V a u g h a n , while Weare was in

120

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COMMITTEE

at the C o u n c i l T a b i c a n d in the usual m a n n e r referred to the C o m m i t t e e . 2 8 5 T h i s b o d y fixed a date f o r the h e a r i n g a n d C r a n f i e l d w a s ordered to g i v e notice of the appeal to M a s o n a n d all others c o n c e r n e d . 2 8 ® T h e r e w e r e appeals entered by V a u g h a n f r o m f o u r j u d g m e n t s in all;

287

after h e a r i n g the appeal

c o n c e r n i n g the M a s o n claims, the C o m m i t t e e advised affirmance of the j u d g m e n t appealed f r o m , as w a s a c c o r d i n g l y ordered o n N o v e m b e r 19, 1 6 8 6 . 2 8 8 Apparently merits;

289

this

report

was

not

based

on

a

contested

hearing

on

the

at any rate it failed to aid M a s o n materially in the e n f o r c e m e n t of

285 PC 2 / 7 1 / 7 3 . As to the November 6, 1683, Court o( Pleas judgment, appellant alleged that Cranfield did not obey the instructions to settle the claims; that appellant was taken by surprise; that appellant was not admitted to make out his title despite offers and ability to do so; that the governor and the jury were not impartial, since they were claiming lands under Mason. Appellant prayed time to bring over deeds and evidences, to make out title, and to have such affidavits and proofs taken upon the place as were requisite to be made (Samuel Allen MSS). 286 The time appointed for the hearing was the first Tuesday after Midsummer Day in 1686. A copy of the petition and appeal was enclosed in the Committee letter and ordered to be communicated to Mason and the others concerned, who were to attend at the time set either in person or by agents sufficiently authorized to answer the appeal and submit to the judgment. Cranfield was to permit all persons to have free access to and take copies of all records within the province relating to the matters in dispute and to depose on oath what they knew concerning the same. The depositions were to be taken in writing by any member of the council or justices of the peace in the province without any hindrance, in order to be transmitted to the Lords Committee "for the clearing of truth in that appeal" (8 Coll. NM. Hist. Soc., 243-44). Weare entered an appearance for Vaughan to prosecute the appeal on June 23, 1686 (PC 2 / 7 1 / 2 9 2 ) . As an indication of opinion on the pending trial, it should be noticed that Edward Randolph in October, 1685, wrote: "And now, since Charters are at so low an ebb, I feare his [Mason's] Grants will hardly hold out upon a tryall at ye Councill Board: he is sure of all assistance from ye Plantation Office: but his Enemyes have the larger purse" (4 Edward Randolph, 60, 6 1 ) . Blathwayt proposed that Mason should quit his pretensions upon the King's making him governor

of Bermuda and allowing him and his heirs ¿ 2 0 0 or ί , ί ο ο yearly forever, to be paid out of the quit-rents (ibid., 59). See also F. B. Sanborn, Churchmen on the Pascataqua. 1650-1690; 45 Mass. Hist. Soc. Proc., 229. 287 In addition to the appeal concerning the Mason claims there were: (β) an appeal from a ¿ 4 0 fine imposed upon appellant at the May 6, 1684, Quarter Sessions for beating and abusing a customs officer (PC 2 / 7 1 / 3 5 5 ) ; (6) an appeal from a July 1, 1684, judgment of the Court of Pleas in re the ketch Diligence (PC 2 / 7 1 / 3 5 6 ) ; (c) an appeal from a May 22, 1684, Chancery decree in favor of Richard Martin (ibid.). For the substance of this last appeal see 8 Coll. N.H. Hist. Soc., 3 1 2 - 1 7 . 288 PC 2 / 7 1 / 3 4 0 ; 8 Coll. NJi. Hist. Soc., 242-43. The Lords Committee heard Mason and Weare and his counsel. The appeal was from a verdict and judgment of November 6, 1683, in an action for certain lands and tenements in Portsmouth (see supra, n. 269). While the cause was pending, it was complained to President Dudley and Council that the anti-Masonites were cutting wood on the controverted lands, and an order to stay waste was prayed ( 1 2 6 MS Mass. Archives [Usurpation, 1686-87], 34; Dudley Records, 1 3 Mass. Hist. Soc. Proc. [2nd Ser.], 258). William Vaughan in answer pleaded the pressing poverty of the people and the offsetting exorbitant damages recovered earlier by Mason (126 MS Mass. Archives, 49); cf. the answer of some of the inhabitants, ibid., 48. The President and Council, since the whole cause was before the King for final determination, saw no reason to make any new order in the matter (Dudley Records, 266). 280 At the hearing before the Committee, appellant alleged that Cranfield had not pursued the terms of his commission for settling the Mason claims, but had permitted Mason to secure a verdict against appellant. Then a declaration made by Cranfield in February, 1683/4, was read (see 1 Doc. and Ree. Rei.

T H E LORDS COMMITTEE

121

claims. 290

his With the death of Mason in September, 1688, the contest abated for a decade until reopened by Samuel Allen, who obtained by purchase from the heirs the Masonian rights. 291 The further course of the land-title struggle in N e w Hampshire as reflected in the judicial function of the Council will be considered later. INTERCOLONIAL BOUNDARY DISPUTES

W e have stated above that the appellate jurisdiction of the Council at this period included an appeal from the judgment of royal commissioners in an interproprietary boundary dispute. 292 As we have seen, none of the royal charters made provision for royal settlement of boundary controversies with contiguous patentees, except that of Rhode Island. This colony's charter provided that in all matters of public controversy between Rhode Island and the other New England colonies it was to be lawful for the Governor and Company of Rhode Island to make their appeals to the King for redress.29* But it has been generally asserted that the King exercised original jurisdiction in boundary controversies of royal patentees upon principles of feudal sovereignty. 294 Jurisdiction over these intercolonial controversies by royal commiscro?. N . H . , 476). It appeared that appellant had not offered to agree with Mason or approached Cranfield in the matter, and appellant did not offer anything whereby it might appear that he had any title to the lands in dispute ( C O 3 9 1 / 6 / 2 7 ) . A s far as the appeal was based on any record made below, it could scarcely have adjudicated the merits of the question, since no evidence was adduced by defendant in the lower court (1 Doc. and Ree. Rei. Prov. Ν Ή., 504, 514-15» note). But from the tenor of the communication from the Committee to Cranfield it would appear that a de novo hearing before the Committee was contemplated on evidence taken following the terms of such communication; see supra, p. 119. 2 0 0 When Mason returned to N e w England in May, 1687, he found the Dominion government unkindly disposed toward his claims and the judiciary delaying executions on judgments previously secured (Captain John Mason [Prince Soc. Pub., 1687; ed. J. W . Dean], 123). For earlier, on February 24, 1686/7, Andros had declared that no trial for the title of land should be had until the royal pleasure was obtained (Andros Records, 13 A m . Antiq. Soc. Proc. [n.s.], 253). But when the Order in Council was produced before the Andros Council on July 28, 1687, it was

ordered that the judges of the Superior Court cause the said judgment to be forthwith executed accordingly (128 MS Mast. Archives [Usurpation, 1687], 136). Andros was later petitioned by sundry N e w Hampshire inhabitants that executions had been issued o n many judgments obtained by Mason against petitioners contrary to the royal instructions. N o writs of scire facias had been used in accordance with a June 10, 1686, order of the President and Council (presumably meant is a May 29 order, see Dudley Records, 236), so that reasons for arrest of judgment could not be shown. A supersedeas to these writs of execution was prayed so that a fair trial to the lands might be had (128 MS Mass. Archives [Usurpation, 1687], 290). But Mason obtained a writ of certiorari on July 13, 1688, from Joseph Dudley, the chief justice of the Dominion, to remove the causes in which judgment had been given to the Superior Court of Pleas (2 Doc. and Ree. Rei. Prov. NJi., 533-34). However, before any benefit could be obtained from this writ, Mason died (Captain John Mason, 123). See also Sanborn, loc. cit., 229; 4 Edward Randolph, 217, 227. 291 292 293 294

Fry, op. cit., 220-21. See supra, p. 73. 6 Thorpe, op. cit., 3221. ι Blackstone, Commentaries,

23 J. This al-

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sion became an important branch of conciliar jurisdiction in the eighteenth century, but at this period was embryonic. In the seventeenth century the commission procedure was utilized in an attempt to settle the various boundary disputes of the Pawtuxet proprietors in Rhode Island. 295 These quarrels had their origin in a March, 1638, Indian grant to Roger Williams of a tract of land surrounding the settlement at Providence. 298 In October of that year the southern portion, later known as the Pawtuxet purchase, was conveyed to one William Harris and twelve others. 297 A line of division between the purchases of Providence and Pawtuxet was then settled in 1640. 298 In May, 1659, the General Court of Commissioners of Rhode Island licensed Providence township to purchase additional contiguous territory if desired. 299 Harris, seemingly without authority, then secured three deeds from relatives of the original grantor sachems confirmatory and explanatory of the 1638 grant. Particularly explained was an additional memorandum on the original deed, the authenticity of which has been disputed. 300 Although the deeds, under guise of confirmation, greatly extended the limits of both purchases, they were accepted by Providence in March, i66o. 301 The effect of these confirmatory deeds was a conflict between the Pawtuxet and Warwick proprietors, allegedly holding by purchase from "inferior" Indians, as to ownership of lands west of the Pauchasett River and north of the Pawtuxet. In 1659/60 Harris and three other proprietors brought trespass on the case in the General Court of Trials of Providence Plantations against the Warwick proprietors for cutting grass at Toskeunke in the disputed territory. 302 The jury, on March 13,1659/60, returned a verdict for the plaintiff of legation is discussed infra in connection with eighteenth century conciliar hearing of intercolonial controversies. 285 This prolonged course of litigation is discussed in several places (see I. B. Richman, The Land Controversies of William Harris, introduction to Harris Papers, 10 R.I. Hist. Soc. Coll., 1 1 - 2 2 , and 2 Rhode Island, Its Making and Us Meaning [ 1 9 0 2 ] , c. xiv; 2 Andrews, Colonial Period, 55 et seq.; Notes on William Harris, ι R.I. Hist. Soc. Proc. [ 1 8 9 2 - 9 3 ] , 2 1 4 - 2 9 ; W. R. Staples, Annals of the Town of Providence, 5 R.I. Hist. Soc. Coll. [ 1 8 4 3 ] , 562-90) but with little appraisal of the legal machinery involved. 29β See i Chapín, Documentary History of Rhode Island ( 1 9 1 6 ) , facing page 64; 4 Early Ree. Town Prov., 7 0 - 7 1 ; 5 ibid., 296; cf. Letters of Roger Williams, 6 Pub. Narragansett Club (ist ser.), 305-6.

287

15 Early Ree. Town Prov., 3 1 . Ibid., 2. 299 ι Ree. Col. R.I., 418. 300 For the confirmatory deeds see 5 Early Ree. Town Prov., 297, 300, 303. For the material on and discussion of authenticity see i R.I. Hist. Soc. Proc., 194-98, 2 3 1 - 3 4 ; S. S. Rider, The Forgeries Connected with the Deed Given by the Sachems Canonicus and Miantinomi to Roger Williams of the Land on Which the Town of Providence Was Planted (1896), passim; G. T . Paine, A Denial of the Charges of Forgery in Connection with the Sachem'J Deed to Roger Williams (1896), passim. 301 2 Early Ree. Town Prov., 125, 127. 302 Harris Papers, 53-55. The Warwick proprietors defended that the alleged trespass had occurred west of the Pauchasett River, the western boundary of the Pawtuxet purchase. 288

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«3

¿ 2 damages and costs, and judgment was rendered.303 At an October 9,1660, rehearing the jury found for the defendants ¿ 4 and costs of court, not meddling with title of property, and judgment was accordingly granted. 304 An October 8, 1661, rehearing before the General Court of Trials resulted in a further verdict for defendants with their charges and costs of court.805 In October, 1662, Harris brought a "bill of indictment" in the General Court of Trials against John Harrud and other Warwick proprietors for trespass, apparently on the theory that he was prosecuting a forcible entry. The grand jury found the bill; after the petty jury had been sworn, those indicted pleaded the illegality of the bill because it was not exhibited in the King's name. Being found guilty regardless, the defendants prayed the court to suspend judgment. The court then referred the matter to the next Court of Commissioners to judge the legality of the indictment.308 This court referred the aggrieved parties "to a due course of law for right." However, stating that great inconveniences had arisen from trying criminal and civil actions together in cases of forcible entry, the court declared that in futuro the actions were to be separately considered. First, title was to be tried, then the criminal matter.307 Conceiving the law governing proof of tides contrary to the laws of England, Harris then sailed to England for relief, but finding royal commissioners about to depart for New England, he took no steps to obtain such relief. 308 In March, 1663/4, Harris sued Harrud for trespass at Mashantatuck in the controverted area and was awarded ten shillings damages and costs of court. 30 · Because of popular sympathy with defendant Harrud, it was impossible for Harris to secure execution.310 When Charles II's commissioners, Carr, Cartwright, and Maverick, appeared in Rhode Island, Harrud appealed to them to hear the cause, but they postponed action until their return to the colony. 311 Although the commissioners failed to return to Rhode Island, upon address of Harris they recommended the matter to the governor, deputy governor, and assistants for full hearing and speedy determination.312 These referees, declining to interfere in a matter judicially determined, in turn referred the 303

63.

I Ree. Ct. Triait Col. Prov. Plani. (1920),

Ibid., 68. The recital by Richman in the introduction to the Harris Papers (p. 14) is erroneous. 305 ι Ree. Ct. Trials Col. Prof. Plant. (1920), 74-75; Harris Papers, 60-61. Andrews erroneously sutes that Harris "brought the case before the court of trials and was awarded damages" (2 Colonial Period, 63). 308 2 Ree. Ct. Trials Col. Prov. Plant. (1922),

30T

ι MS RJ. Col. Ree., 170. Harris Papers, 152-53. *09 Ibid., 70-71; 2 Ree. Ct. Trials Col. Prov. Plant. (1922), 24. A rehearing was attempted but then withdrawn (ibid., 3 1 ) . 310 Horns Papers, 153-54. 311 Ibid., 153; 2 Ree. Col. RJ-, 233. 312 Ibid., 143, 233; 3 Doc. Rei. Col. Hist. N.Y., 159. 308

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matter to the Assembly which ordered execution without further delay.81® Execution not being served, Harris charged James Rogers, general sergeant, before the Assembly with neglect of office. Rogers was arraigned and acquitted, and execution was ordered suspended until the former appeal to the royal commissioners was heard. 314 However, in May, 1669, issuance of execution was again ordered, but service was obstructed by force. 315 Several other controversies over titles in which Harris was concerned were also in progress, namely, with John Towers of Massachusetts Bay and with Edmund Calverly et al., both parties claiming under Indian grants. 318 Calverly had petitioned the royal commissioners, but they had referred the matter to the Assembly, which disclaimed jurisdiction in a matter already judicially determined. 317 During this period Harris was also endeavoring to have the dividing line between the Pawtuxet and Providence purchases extended westward under the confirmatory deeds. Providence, however, aroused to opposition by Roger Williams, refused to co-operate, and Harris was precluded from obtaining extended separation of the Pawtuxet purchase. 318 Despairing of local relief, 319 Harris resolved to seek justice at the fountainhead. So, in 1675 the King in Council was petitioned to direct the governors of the four New England colonies or their appointees to hear the cause and with an eclectic jury to determine all differences concerning the Pawtuxet lands. 320 T o obtain such commission, Harris pointed out the impasse created by conflicting territorial claims, some trespasses taking place where Rhode Island writs did not run, 3 2 1 while a Rhode Island law forbade trial of Rhode Island land titles outside the colony. 322 Harris overcame the objection to the issuance of an unprecedented commission to rehear land title causes by the argument that in effect the commission was one for preservation of the peace. 323 Also overcome were objections that the commission might meet with disobedience to the derogation of the royal prerogative.324 Authority for the issuance of a special commission or assize in New England, notwithstanding the already established royal power, found precedent in the domestic corporation. 3 2 5 Similarly, appeal to the King in Council was justified on the domestic right to remove causes by certiorari from corporate judicial bodies into higher 313

2 Ree. Col. R.I., 143-44. Ibid., 204-5, 2 1 0 - 1 1 . Harris complained to Colonel Nicolls (Harris Papers, 87) who advised that members of the Plymouth colony settle the matter (2 Ree. Col. R.I., 2 3 3 - 3 4 ) . 315 Ibid., 253; Harris Papers, 87, 97. 318 Ibid., 14; 15 Early Ree. Town Pro v., 130. 317 2 Ree. Col. R.I., 106-7; Harris Papers, 88. 318 2 Ree. Col. R.I., 199-204; Harris Papers, 7 1 - 8 3 ; 3 Early Ree. Town Prov., 102-6. 314

310

Harris had also resorted to arbitration, but without marked success (Harris Papers, 129, 148, 1 5 1 , 1 5 8 ) . 320 Ibid., 148; PC 2 / 6 4 / 4 3 1 . For other papers presented by Harris see Harris Papers, 1 4 9 - 6 1 . 321 Ibid., 150, 155, 158. 322 Ibid., 158; 1 Ree. Col R.I., 401. 3 3 - Harris Papers, 1 1 9 - 2 0 , 157-58. 321 Ibid., 122-28. 325 Ibid., 1 5 5 - 5 7 , 159-60.

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royal courts.326 Strangely enough, no reliance was placed upon the charter provision. The Privy Council acted favorably upon the petition, directing the governors of the four New England colonies respectively to appoint commissioners and jurors finally to determine all differences concerning the Pawtuxet lands.327 Action under the commission was prevented by King Philip's War, and thé absence of commissioners until October, 1677, when the Court of Commissioners, eight in number, assembled with a jury at Providence to hear the matters.328 Declarations were then filed by Harris against the four rival claimants and Providence township, and the Court of Commissioners proceeded to the hearing.329 In November, 1677, verdicts were returned in favor of Harris in all the actions.330 An appeal to England by the Warwick representatives was denied, the commissioners allegedly stating that it would be of ill consequence to the country to allow of any appeal to the King. 3 3 1 The Warwick representatives thereupon petitioned the King in Council, complaining of the unjust proceedings of the commissioners and praying a stop be put thereto. Further, that for the determination of this and like differences between the colonies and for avoiding chargeable appeals from such remote parts, the King would settle a royal authority over all New England and erect a Supreme Court of Judicature there. 332 The Committee, to which the matter was referred, reported that the commissioners had acted ultra vires in judging the Warwick lands, that therefore the inhabitants should not be disturbed in their quiet possession, and that all things relating thereto remain in statu quo until Harris made out sufficient right before the Council Board. As to the Pawtuxet lands, Harris et al. were to be quietly possessed thereof, according to the other four verdicts. An Order in Council was accordingly issued on January 31,1678/9. 3 3 3 528

Ibid., 159. 2 Pub. Ree. Col. Conn., 586-88; Wyllys Papers, 21 Conn. Hist. Soc. Coll., 2 1 8 - 2 1 ; cf. the form of commission submitted by Harris (Harris Papers, 1 2 9 - 4 2 ) . 328 ibid., 180-85, 1 9 1 - 9 3 · A meeting at Pawtuxet on August 22, 1677, was rendered abortive by absence of the Rhode Island members (2 Pub. Ree. Col. Conn., 588; Harris Papers, 190). Harris had earlier importuned the several governors for summonses to the defendants within their respective jurisdictions with varied success (ibid., 1 8 8 - 9 1 ) . 329 For the declaration against Towers see Harris Papers, 193, 205; against Calverly, ibid., 194; against the Town of Providence, ibid., 198. For an inclusive plea by Harris et al. see i R.I. Hist. Soc. Proc., 1 8 5 - 2 1 3 . For the an327

swers of the town of Providence see Harris Papers, 214, 2 1 5 ; of Calverly, ibid., 220; of Roger Williams, Letters of Roger Williams, 387; 1 5 Early Ree. Town Prov., 162. 330 Harris Papers, 223-25. 331 ι APC, Col., # 1 2 2 4 . Compare the Harris view, Harris Papers, 268-69. 332 PC 2/66/372; Harris Papers, 234. For the petition of Holden and Greene, the Warwick agents, see 5 Mass. Hist. Soe. Coll. (ist ser.), 505. For the answer of the Massachusetts Bay agents to this petition see Harris Papers, 246; CSP, Col., 1677-80, # 7 6 6 . For the replication of Holden and Greene see ibid., # 7 6 7 . Cf. the attitude of the Committee of Trade and Plantations, ibid., #768. 333 PC 2/67/70-73.

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Meantime, in the colony some uncertainty had arisen as to the meaning of the jury verdict for running a division line between Providence and Pawtuxet purchases. The line drawn by the Providence men not being acceptable to the court, the former jury was summoned to explain the meaning of its verdict. As the Rhode Island commissioners and jurors refused to participate in this procedure, the commissioners decided to leave the final determination to the King in Council. 334 In addition, obstructions were encountered in enforcing the other judgments. 33 * Thereupon, Harris again set forth for England where he petitioned the Council for final determination of his complaint. 338 Harris prayed the privilege of a subject of England to commence suit outside the corporation of which he was resident in the higher royal court for a more competent trial. 337 The Committee reported that distance and absence of parties rendered unfeasible such judgment. Therefore, it was recommended that the governor and magistrates of the N e w Plymouth colony be authorized to examine the WarwickPawtuxet claims and report thereon to the Privy Council. This was accordingly ordered; Rhode Island was also warned to execute the four remaining judgments within three months of notice or have the New Plymouth commissioners act therein. 338 T h e Warwick rehearings before the New Plymouth commissioners in October, 1679, terminated favorably for Harris, 339 but execution in this and the other causes was prevented by the inability of Harris and the special marshal to agree upon the lands to be seized in execution. 340 Harris then decided upon further application to the King, but en route to England this relentless litigant was captured by pirates, and he died before taking any steps for relief. 341 Later petitions for execution of the judgments were uniformly unsuccessful. 342 Another instance of an appeal to the King in a jurisdictional controversy is found in Major John Fenwick's attempts to exercise powers of government in West N e w Jersey under an alleged patent from Lord Berkeley. 343 Upon presentment at a January, 1676/7, Special Court of Assizes held in New York 334

Harris Paperi, 228-33, 238-45, 250-65. For the order to run the dividing line see 15 Early Ree. Town Prov., 174. 335 Harris Papers, 237. "»Ibid., 267-73. 337 Ibid., 271. 338 PC 2/68/159; CSP, Col, ¡677-60, # 1 0 2 6 , 1044, 1056. Earlier in July, 1667 Col. Nicolls had recommended this procedure (3 Doe. Rei. Col. Hist. N.Y., 159)· 3,9 Harris Papers, 3 1 4 - 1 7 . The governor and magistrates also represented that the former commissioners had acted within the scope of their authority in adjudicating the Warwick claims. For the plea of Harris see ibid., 299-

308. For the answer of Holden and Greene for Warwick see ibid., 308-14. 340 Ibid., 278-97; compare ibid., 347-50. Two members of the court protested against John Smith's being marshal, on the score of partiality to the Warwick interests (ibid., 318-19). No execution issued against Calverly et al., since the former commissioners had adjudged the action against Calverly included in the action against Harrud (ibid., 297). 341 Ibid., 322-25, 328; cf. CSP, Col., 1677-60, #1487. 342 Harris Papers, 346-47, 353-55, 360-62, 364-67; 2 APC, Col., #980. 343 See τ Doc. Rei. Col. Hist. Ν.f., 187 et

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City for assertion of his rights with force and arms Fen wick denied the jurisdiction of the court and insistently prayed liberty of appeal to the King. 3 4 4 Both upon verdict of guilty and judgment thereon Fen wick reiterated his demands for an appeal to the K i n g ; an appeal was finally allowed, upon his giving security of ^500 for the prosecution thereof. 345 But there is no evidence that this appeal was ever presented at the Council Board. In August, 1678, proceedings in N e w Y o r k against Fen wick, the jurisdictional plea and the appeal prayer were repeated and rejected. 346 Subsequently, in 1680, Philip Carteret, governor of East N e w Jersey, protesting the jurisdiction of Sir Edmund Andros, threatened an appeal to the King, 3 4 7 but Andros adverted to the impropriety of an appeal before judgment. 348 Upon a May, 1680, presentment at a N e w York Court of Assizes for attempted exercise of powers of government with force, Carteret protested the jurisdiction and appealed to the K i n g as the only proper judge in the matter. 349 But when the jury returned not guilty, 350 an appeal became unimportant. Unlike the Rhode Island controversy, this jurisdictional dispute never came before the Council Board. CONFLICTS BETWEEN ADMIRALTY AND COMMON L A W COURTS

Another phase of conciliar jurisdiction, although of greater importance in the following century, was intervention in the ancient struggle of the admiralty and common law courts for jurisdiction. In June, 1676, the Committee had brought to its attention the case of the St. George, a slave-carrying interloper in territory restrained to Royal African Company traffic, seized at Jamaica and proceeded against in the Vice-Admiralty Court. Since the seizure was made upon waters declared by a local act to be part of the parish of St. Dorothy, the Jamaica common law courts ousted the Admiralty Court of jurisdiction. 381 Dr. Lloyd, to whom the matter was referred, was of the opinion that the locus of the seizure was super altum mare and therefore within the admiralty jurisdiction; that it was not within the power of the Jamaica legislature to make the high seas part of a parish or to deprive the Lord H i g h Admiral of jurisdiction; that therefore the depriving act of April 26, 1675, could not be of force to take away from the D u k e of York jurisdiction granted by royal patent; that the statutes of 13 Richard II, stat. I, c. 5,15 Richard II, c. 3, and 2 Henry I V , c. 11, being made for England, were not in force in Jamaica, except by royal declaration. 352 T h e Attorney General, also consulted, was of the opinion that the seq.; Tanner, The Province of New Jersey, 1664-1738 (1908), 5 et seq. 344 ι Doc. Rei. Col. Hist. N.J., 236-37. 345 Ibid., 237-38. 346 Ibid., 283. Ibid., 298.

Ibid., Ibid., 350 Ibid., see ibid., 351 CSP, 852 Ibid., 348 349

301-2. 303-4. 304. For further account of the trial 316-17. Col., 1675-76, # 9 5 7 - 5 8 , 972· # 9 7 2 , 976.

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letters patent to the Duke of York as Lord High Admiral could not be abridged by any subsequent grant—here the December 14, 1661, royal proclamation for the encouragement of the settlers in Jamaica. He further asserted that no legislative act derivative from that proclamation could prejudice a prior right granted to the Admiral. 3 5 3 It was thereupon agreed that Governor Vaughan be advised of the royal dissatisfaction at the admission of the jurisdictional plea and of the inability of the local legislature to lessen the Lord High Admiral's jurisdiction; that an appeal being made to the King, the governor should cause good security to be given by the interloper to answer in case of forfeiture under the Royal African Company charter. 354 This episode is also reflected in the legislative review process by alertness against Jamaican acts extending parish bounds beyond the high water mark. 3 5 5 In addition to hearing appeals the Council Board also exercised the power of ordering reviews or rehearings held in colonial courts. In two instances in 1693-94, one from Virginia 3 5 8 and one from Maryland, 357 the Lords Committee advised review or rehearing upon complaints of injustice. But in the following century it was denied that the power to order rehearings below was possessed by the Privy Council. 358 THE COMMITTEE APPRAISED

Returning now to a consideration of the composition of the appellate body, we find that appeals were heard before Committees composed of anywhere from three to twelve members, with seven a fair average. There was little continuity of personnel, more than fifty different persons being found in attendance at various times. 359 What is more significant is the lack of a consistent nucleus of councilors learned in the law. We have noticed sporadic attendance by Lord Chancellor Jeffreys, Sir Leoline Jenkins, Francis North (as Chief Justice and Lord Keeper), and Master of the Rolls Powle. Apparently there was no endeavor to have a legal luminary present at every appeal hearing. Since the Committee and the Council were not composed of members aiî

Ibid., # 9 8 7 . For the royal proclamation see 6 Howell, State Trials, 1 3 5 3 - 5 4 ; Ν. B. Livingston, Sketch Pedigrees of Some of the Early Settlers in Jamaica (1909), Part II; cf. Whitson, The Constitutional Development of Jamaica ( 1 9 2 9 ) , 1 5 - 1 6 . On the patent of the Duke of York as Lord High Admiral see Crump, op. cit., 1 0 2 - 3 . The point was also raised whether the Royal African Company charter was void under the Statute against Monopolies, but we are not concerned with this aspect of the matter here.

354

CSP, Col., 1675-76, # 9 8 8 - 8 9 . Harper (The English Navigation IMWS [ 1 9 3 9 ] , 187) wrongly terms the administrative treatment of the matter an "appeal." 355 CO 3 9 1 / 2 / 1 2 6 , 2 1 7 - 1 8 . 356 2 APC, Col., # 5 0 2 ; CSP, Col., 1693-96, # 3 2 8 ; CO 3 9 1 / 7 / 1 8 1 . 357 CO 391/7/267-68. 358 See infra, pp. 3 1 6 - 1 7 . 359 For a list of the most active members see Bieber, The ijords of Trade and Plantations, 1675-96, Appen. D.

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selected for their legal experience and ability, it should not be expected that procedural niceties were preserved in their operations or that distinctions of a formal nature were closely observed. For instance, no distinction might be made between a "petition and appeal" and a "petition for leave to appeal." 360 Likewise, the lines between a complaint and an appeal might be blurred. 361 This procedural laxity also appears when the Lords in a proceeding by petition, not denominated an appeal, voided a judgment of the Tangier Mayor's Court as coram non judice.3β2 Of the nearly sixty appeals which came before the Committee and the Council, in only twenty-six were conciliar orders of affirmance or reversal issued.363 Of this group, equally divided between affirmances 3 6 4 and reversals, 3βο gee Witham v. Rex, where the appeal of Witham was denied below, but his petition relating the circumstances of the proceedings below was treated as a "petition and appeal." There was no specific mention made of granting an appeal ( C S P , Col., 1685-88, # 9 4 , 95, 97, 1 1 3 ) . Contrariwise, in the appeals of Brenton against Lawson and Wilkinson, appeals were granted below (see supra, n. 1 8 7 ) , and security given, but the Council Board rather redundantly allowed of appeals in the two seizures (2 APC, Col., # 4 8 0 ) . 361 In Richier v. Goddard, the respondent, arriving in Bermuda as governor in August, 1693, demanded of the appellant as acting governor ¿ 1 , 0 0 0 as half the profits of the government since appellant had received his commission. Upon the refusal of this demand, Richier was arrested and confined for a period before release on parole, and his goods were seized. Richier petitioned that his property be restored on giving security to answer any action in England and that evidence be allowed to be collected in his defense. The petition was granted by the Council, and execution thereof was referred to the Committee (CSP, Col., 1693-96, $911). The Committee treated this petition as an appeal; Governor Goddard was ordered to permit Richier to come to England to prosecute his appeal on giving security, and no obstructions were to be made to the examination of witnesses and the taking of depositions in the island (Ibid., # 9 2 4 ; PC 2 / 7 5 / 3 7 7 ) . For a fuller account of the prosecution complained of by Richier see CSP, Col., 1696-97, # 7 3 3 . In addition to the seizure of property by Goddard without process of law, Nicholas Trott at the instigation of Goddard had obtained two judgments against Richier at the December, 1693, Assizes. These judgments were declared null and void in

December, 1699, upon a hearing by the Committee for Hearing Appeals (PC 2 / 7 7 / 4 4 4 ) . The appeal appears to have been dropped as far as the complaints against Goddard are concerned. However, this "appeal" was instrumental in effecting the recall of Goddard as governor of Bermuda (CSP, Col., 1696-97, #1028). 362 The ¿ 50 judgment voided was recovered against Sir John Mordaunt for defamation, but it appeared that the defamatory words were spoken out of the jurisdiction of the Tangier court. The Lords Committee was motivated by a petition of Edward Hughs that the Tangier court be ordered to pay petitioner the ¿ 5 0 deposited there. The Committee also consulted an answer of Mordaunt and a report of the crown law officers in the matter (CO 3 9 1 / 4 / 3 3 6 - 3 7 ) . Attorney General Sawyer had advised earlier that an appeal would lie from proceedings of the court of Tangier to the King in Council (CSP, Dom., 1684-8s, 76-77). For the Tangier court system see Routh, T I2 Tangier, 1661-1684 ( 9 )> 1 1 8 - 2 0 . 363 Four appeals entered before 1696 were heard by the Committee for Hearing Appeals after the Committee of Trade and Plantations had been dissolved. These appeals were Holder v. Coates (PC 2 / 7 6 / 2 4 1 , 5 7 3 ) ; Richier v. Trott (PC 2 / 7 5 / 3 6 5 , 3 7 7 ; PC 2 / 7 6 / 2 4 1 ; PC 2 / 7 7 / 1 2 , 368, 393, 396, 444); Brenton v. Lawson (2 APC, Col., # 4 8 0 ) ; Brenton v. Wilkinson (ibid.). 384 In Scott v. Dyer, although the judgment below was affirmed and the appeal dismissed, respondent was ordered to repay to appellant a certain sum which respondent confessed he had received in excess of his just demands by the judgment of the Barbados Court of Common Pleas (PC 2 / 7 1 / 5 5 6 ) .

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three affirmances were due to nonprosecution. 3 8 5 In one appeal from a Barbados fine imposition, the sentence appealed f r o m was declared null and void, but since the charges were grave, the cause w a s ordered reheard. 3 9 8 It is not possible on the basis of available evidence to make any sweeping generalizations concerning the quality of the appellate judgments rendered by either conciliar body. T h e r e is at least one case ( w h i c h may be indicative) in which a H i g h Court of Admiralty judge expressed an opinion on an appeal w h i c h differed from that later arrived at by the C o u n c i l . 3 8 7 It should not be forgotten that the Committee was essentially an administrative body and more preoccupied with administrative enforcement than attainment of abstract justice between private litigants. Therefore, w e may find that in individual appeals administrative considerations influenced judgment. T h e operation of such considerations is seen in appeals involving the logwood trade from Honduras and N e w Y o r k land titles.

389

388

T h e r e are too f e w appeals to permit more than

one generalization as to the comparative merits of the judicial systems of the various colonies—judicial administration in Barbados stood most in need of conciliar correction. In addition to the quality of the appellate judgments, we must consider the ses

Walton v. Walford (PC 2/70/107); Barefoot v. Wadleigh (ibid.); Hubbard v. Smailes (PC 2/73/414; PC 2/74/244). 8,8 Hanson v. Rex, supra, n. 231. 867 The opinion of Sir Richard Raines in Kirwan v. St. Loe. Compare CSP, Col., 1685-88, # 1 2 8 0 with PC 2/72/481. 888 This problem is indicated in the case of In re The Swallow. A practice had grown up in the colonies for owners of foreign-built ships to procure the condemnation of such ships under the Acts of Navigation on easy terms by compounding with governors for their share of the forfeitures, paying no more than the King's third part of the appraised value. By virtue of this certificate of condemnation, the ships were admitted as free within the tropics; this distinction was termed by the Commissioners of the Customs as without any ground or color of law (CSP, Col., 1685-88, # 1 2 2 1 ; see also ibid., #965, 1066, 1212). The Swallow, seized and tried in the Jamaica ViceAdmiralty Court, came within this category. In petitioning for an appeal captor Captain Talbot relied upon the above opinion of the Commissioners of the Customs (ibid., # 1 2 3 8 ) . The appeal was allowed, but never prosecuted. But practical considerations of the effect on the logwood trade from Honduras of a conciliar determination upholding the view of the

Commissioners of the Customs were not absent (ibid., # 1 5 8 0 ) . For some discussion of the legal problems and administrative considerations concerned in the seizure of The Swallow see Harper, op. cit., 197-99. 3β» it w a s threatened that if the appeal in Wright v. Cornwall were upheld all land titles in New York would be upset (CSP, Col., 1685-88, #846-47). This appeal followed a rather anomalous procedural course, with the merits of the question nowhere evident. Upon admission of this appeal from an October, 1682, General Court of Assize judgment, the Council Board referred it to the Committee to examine and report thereon (PC 2/69/ 634). The Committee then ordered that appellants put into writing their exceptions to the judgments below, that respondent reply in writing, and that then the whole case be referred to the governor of New York to report thereon (CSP, Col., 1681-85, # 1 0 5 5 ) . Appellants later petitioned to refer the matter for answer to Sir Edmund Andros, who was present in England, thus sparing the expense of a commission (ibid., 1685-88, # 6 8 1 ) . The answer of Andros was probably sent, with the appellant's petition, to Governor Dongan to report (ibid., #846, 847). The case then disappears from conciliar sight.

T H E LORDS

COMMITTEE

time necessary to obtain such judgments, as delay is a factor capable of vitiating appellate review. Effective conciliar jurisdiction was handicapped by two elements beyond its control—the distance of the courts appealed from and the limited available transportation. The times necessary effectually to prosecute an appeal varied widely. From the date of the judgment or decree appealed from to the final Order in Council, the time varied from approximately six months 3 7 0 to seven years. 371 In those cases in which this period can be estimated, the average was slightly more than two years. 372 But the course of Witham v. Gray indicates that a recalcitrant litigant could unconscionably delay conciliar determination.373 The frequency with which appeals failed of prosecution is symptomatic of conciliar deficiency. In conclusion, it may be remarked that the real significance of this period of the Committee of Trade and Foreign Plantations lay in what was accomplished toward the establishment of a basis for the system of appellate review of the next century. Few of the appeals determined by this Committee were of importance to any but the individual litigants. Probably appellate review of fine impositions and the sanctions established thereby were the most valuable contributions of the Committee and the Privy Council of this period. The attempted settlement of the Mason land claims in N e w Hampshire, while of concern to many, did not meet with success. 370

In Ward v. Palmer, a New York appeal from an October 1 - 3 , 1679, judgment, the final Order in Council issued March 9, 1679/80 (PC 2/68/371, 425). 371 On July 8, 1688, the appeal of Witham v. Gray from a February 17, 1684/5, judgment of the Barbados Governor and Council was referred to the Committee to hear if they saw cause (PC 2/72/705). On July 19 the Committee fixed upon February next for the hearing (CSP, Col., 1685-88, # 1 8 3 9 ) . On September 13, 1689, respondent moving for an early hearing, the cause was ordered heard on September 18, but appellant was not ready. On November 1 1 the cause was ordered heard November 15, but Sir John Witham was in extremis, and no action was taken (CSP, Col., 1689-92, #420, 421, 543). On January 14, 1689/90, respondent moved for dismissal of the appeal (ibid., # 7 1 7 ) , and the Committee ordered that notice be given Witham's executors to prosecute the appeal within fourteen days or show cause why it should not be dismissed (ibid., # 7 2 6 ) . On January 31 the executors petitioned for further time to

prepare their case (ibid., # 7 5 1 ) . On February 23, 1690/1, upon petition of respondent the executors were again given fourteen days to prosecute the appeal or in default thereof have it dismissed (ibid., # 1 3 3 0 , 1334, 1335)· On March 10 the appellants petitioned for further time to collect evidence in Barbados and for leave to obtain copies of documents (ibid., # 1 3 5 4 ) . Again respondent petitioned for dismissal, and the Committee resolved on April 30, 1691, to dismiss the appeal if not prosecuted upon the arrival of the next West Indian fleet (ibid., # 1 4 4 2 , 1443). On January 10, 1691/2, upon a petition of respondent for dismissal of the appeal or a peremptory day for hearing thereof, it was ordered that the appeal be heard on January 18 (ibid., #2003-4). On January 18 the parties attended, and the Committee decided to recommend the reversal of the judgment appealed from (PC 2/74/313). This cause is unusual in that one would expect delay from respondent, rather than from appellant. 372 373

Nineteen appeals furnish this average. See supra, n. 371.

III THE SETTLING OF JURISDICTION THE LATTER PART of the seventeenth century saw an intensification of mercantilist and imperialist trends in England; to the trading classes all aspects of English government and colonial administration were to be subordinated to the interests of commerce. 1 One of the measures urged by spokesmen for this pressure group was the creation of a Council of Trade more effectually to secure business interests, particularly in foreign and colonial fields.2 This proposal gained favor as discontent increased among the trading interests because of the heavy losses sustained by English trade and shipping during the hostilities with France which commenced in 1689.3 Further, those hostile to the incumbent regime seized upon these losses as a manifest neglect of the national welfare and even as a design to favor Dutch competitors.4 In 1695 action on these discontents was foreshadowed by an increased amount of pamphlet literature, perhaps inspired, urging parliamentary intervention in the field of foreign commerce and advocating the establishment of a Council by Parliament for the promotion and improvement of trade.8 William III did not remain oblivious of the demands of the merchants and of the need for administrative reform. By December, 1695, the formation of a Council of Trade had been decided upon by the King and his advisers, and the patent was ready for the seals, but the King delayed taking the final step.® On December 12, 1695, Parliament assumed the initiative, and the House of Commons debated the creation of such a Council nominated by the legislative; taken by surprise, the Ministry was at great trouble to secure an adjournment. 7 Reports were abroad following the action of the House of Commons that a Commission for Trade and Plantations had been appointed by 1 ι Osgood, The American Colonies in the Eighteenth Century (1924), 1 3 1 . 2 4 Andrews, Colonial Period, 280-84. 3 ι Osgood, op. cit., 127-28. Although for the most part these losses were attributable to the deplorable condition of the Admiralty (4 Andrews, op. cit., 275-79), the Lords Committee cannot escape the charge of lax administration in matters under their charge; see ι Osgood, op. cit., 121 et seq.; cf. 1 MacPherson, Annals of Commerce, Manufacture, Fisheries, and Navigation (1805), 681; CSP, Dom., 1691-92, 543. At this time virtually the whole English administrative

system was in a state of collapse (CSP, Col., '693-96, xlvi). * 2 Burnet, History of His Own Time ( 1 7 3 4 ) , 163; 5 Pari. Hist. Eng. (ed. Cobbett, 1809), 977· 5 ι Osgood, op. cit., 1 3 1 - 3 2 ; 4 Andrews, op. cit., 282-84. β ι King, Life of John Lock.e (1830), 42-43; 2 Fox Bourne, Life of Locke (1876), 349; cf. Lees, Parliament and the Proposal for a Council of Trade, 1695-96, 54 EHR 38, 49, 59. 7 2 Fox Bourne, op. cit., 443; 3 Luttrell, A Brief Historical Relation of State Affairs ( ' 8 5 7 ) , 560-61. This action would not only

T H E SETTLING OF the K i n g ,

8

JURISDICTION

133

but such reports failed to halt parliamentary action or the meetings

of the existing C o m m i t t e e of T r a d e a n d Plantations.® D u r i n g January, 1 6 9 5 / 6 , at several meetings of the H o u s e of C o m m o n s as a committee of the w h o l e the matter of a C o u n c i l of T r a d e w a s debated; most important, it was resolved by a n a r r o w margin that Parliament rather than the K i n g should nominate the commissioners thereon. 1 0 O n J a n u a r y 3 1 the H o u s e , acting as a committee of the whole, adopted a series of resolutions concerning the establishment of a C o u n c i l of T r a d e , and a bill e m b o d y i n g these resolutions w a s ordered brought i n . 1 1 T h i s proposed legislation w a s regarded by some not only as an invasion of the domain of the c r o w n but also as an entering w e d g e for further i n v a s i o n . 1 2 T h e K i n g ordered his ministers to oppose the bill, 1 3 but the measure seemed destined to passage in both houses, w h e n the discovery of a plot to assassinate W i l l i a m a n d to invade E n g l a n d permanently diverted legislative attention to more pressing issues. 1 4 T h e plan for the establishment by the c r o w n of a C o u n c i l of T r a d e , w h i c h please the merchant classes and accomplish a necessary reform, but it would cut into the domain of the crown, especially in the Treasury and the Admiralty (3 Burke, Works [1803], 326). 8 3 Luttrell, op. cit., 562-63. " O n December 19 the Duke of Shrewsbury informed the Clerk of the Council in writing that the King having appointed a Commission for Trade and Plantations it was unnecessary that the Committee for that purpose meet for the present (CSP, Col., 169J-96, # 2 2 0 7 ) . 10 On January 2 in a great debate the court party opposed the setting up of a council as an infringement of the King's prerogative. The vote in favor of Parliament as nominator of the commissioners stood at 175 to 174 (3 Luttrell, op. cit., 568; Lees, op. cit., 49-50, 53-54). On January 21, in a Committee of the Whole House, it was resolved that no commissioners be members of the House, that the commissioners take an oath recognizing William as lawful sovereign, that the commissioners have power to appoint, in conjunction with the Admiralty, convoys for shipping, to decide differences between merchants, and to inspect and regulate the manufactures of the kingdom (4 Luttrell, op. cit., 7). Cf. Lees, op. cit., 48-53, for the effect of these resolutions on Parliamentary fervor. 11 The resolutions adopted provided for the establishment by an act of Parliament of a Council of Trade with powers for the more effectual preservation of English trade; the commissioners thereof were to be nominated

by and could be members of Parliament. The Council was (a) to require information and to receive applications concerning protection of shipping and to send directions therein to Admiralty officials; (b) to receive complaints in relation to trade, of the misbehavior of commanders and officers, to represent the same to the King, and to send directions to the Admiralty for proceeding against such offenders; (c) to consider the plantation trade and all trades and manufactures and the best methods for securing and improving the same; (d) to receive proposals for the employment of the poor; (e) to consider the best methods of settling a Court-Merchant; (/) to consider the encouragement and establishment of the fishery (ti f . H. of C., 413; cf. Lees, op. cit., 51-52). 12 2 Burnet, op. cit., 163; 5 Pari. Hist. Eng., 977; 17· 75· 83)· T h e only appeal recorded after 1754, from a 1764 condemnation under 7 and 8 W m . Ill, c. 22, failed to designate the appellate body (ibid., f. 52). 201 For an account of the struggle in Pennsylvania see W. T . Root, The Relations of Pennsylvania with the British Government, 7 6 9 6 - / 7 6 5 (1912), c. iv. 202 The sloop Jacob was condemned in the November 1 0 - 1 2 , 1698, session of the court held at Newcastle, on the ground that the master and three-quarters of the crew were not English subjects (CSP, Col., 1699, # 1 3 8 V; Root, op. cit., 101). T h e owner, Moorhead, declared that he appealed home to the High Court of Admiralty. Quary told him that before the appeal could be entered good security must be given, not only for what the sloop was appraised at, but also for all damages and costs of court. Moorhead refused at first, later became willing, but security was never given,

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but inhibitions were secured by the owners f r o m the H i g h Court of Admiralty in E n g l a n d . 2 * * H o w e v e r , in one instance the party securing such inhibition w a s advised not to make use of it, but to submit to the judgment of the local court. 2 ® 4 H i s suspicions aroused, 2 8 6 Quary questioned whether after a decree in a colonial vice-admiralty court based on the Navigation A c t s the H i g h C o u r t of Admiralty in E n g l a n d ought to grant an inhibition. F o r , he posited, if the cause should be carried to England, it could not be tried in the H i g h C o u r t of Admiralty there, though by the 1696 act all causes arising from the aforesaid acts were made triable in the vice-admiralty courts in the plantations. Quary further desired to k n o w whether the clause in his commission allowing appeals to the H i g h Court of Admiralty was designed to extend to all causes whatsoever, whether cognizable in that court or not. 2 6 6 A l t h o u g h not very specific in his answer, S i r Charles Hedges, H i g h C o u r t of Admiralty judge, affirmed the right of appeal to the H i g h Court of A d miralty in cases concerning the A c t s of T r a d e . 2 6 7 B u t by learned men in both the civil and the common law Quary was advised that Parliament had invested the vice-admiralty courts in the plantations with more ample powers than given to the H i g h C o u r t of Admiralty in England, since by the 1696 statute all causes arising under the A c t s of T r a d e were to be tried in the courts nor was the appeal ever entered (CSP, Col., 1699, # 1 3 8 ) . In May, 1699, the Providence was condemned as not duly registered according to law {ibid., #426 II, ΙΠ; Root, op. cit., 102; 4 H. of L. MSS (nJ.) 1699-1701, 353). An appeal being moved for, Quary informed petitioners that an appeal lay to the High Court of Admiralty. It was moved that the ship and cargo be delivered to appellants on giving bond to prosecute the appeal. Quary replied that bonds signified nothing in the colony, since they could not be sued on, under pretense that there was no Attorney General for the King (CSP, Col., 1699, #426). For the owner's version see ibid., 1702, # 1 5 0 ; cf. ibid., # 1 7 8 . See also that of William Penn (1 Penn-Logan Correi. 36). 283 4 H. of L. MSS (nj.) 1699-1702, 331-32. 3.54. Reliance was placed upon Penn's influence at court to have the ships cleared (ibid., 318). See also ibid., 336, for a statement of reliance upon reversals in England. 204 Ibid., 325. 265 Knowing the prejudice of the persons who had secured the inhibition, Quary concluded that the appeal was declined from conviction of application to the wrong appellate jurisdiction (ibid., 332). 206 Ibid., 325. This argument is based upon

the language of the 1696 statute which restricted suits for penalties in England to "His Majesty's Courts of Record at Westminster," whereas in the plantations, suits could be brought in any court under one section and in the Admiralty Court specifically under another. See 7 and 8 William III, c. 22, ss. 2, 7. But it has been claimed in some quarters that the High Court of Admiralty possessed an original inherent jurisdiction over violations of the Navigation Acts, regardless of statute; see The Sarah (8 Wheaton 391, note, pp. 396-97). As to Admiralty Courts not constituting courts of record, see Coke, Fourth Institute, 135; Crump, op. cit., 130-32; Harper, op. cit., r86-87- For specimen commissions to vice-admiralty court judges see supra, Chap. II, n. 97. The clause reads: "saving, nevertheless, the right of appealing to our aforesaid High Court of Admiralty of England, and to the Judge or President of the said courts, for the time being." See also the similar clauses in commissions to governors as Vice-Admirals, supra. Chapter II, n. 97. Compare the myopic view in Lewis, The Courts of Pennsylvania in thé Seventeenth Century, 5 Pa. Mag. Hist, and Biog. (1881), 178. 267 4 H.ofL. MSS (kj.), 1699-1702, 331-35·

ι8ο

T H E S E T T L I N G OF J U R I S D I C T I O N

of vice-admiralty in the respective plantations, but in England, in Westminster Hall. Thus, it was conceived that no appeal lay from colonial viceadmiralty court sentences under the Navigation Acts to the High Court of Admiralty in England, because that court could not take cognizance—as soon as it might assume to proceed therein, prohibition could issue.288 Nevertheless, regardless of doubts as to its jurisdiction, the High Court of Admiralty proceeded to hear the appeal from the condemnation of the Providence, affirming the sentence below. 26 ® This judgment settled nothing, and as a sequel charges were made by Quary to the Board of Trade against proprietor Penn with reference to the contested admiralty jurisdiction. 270 Hearings were had on the matter, and certain questions as to the contested Pennsylvania admiralty jurisdiction were sent to the Attorney General and the Advocate General for their opinions. 271 Answering the queries addressed to him, Advocate General Cooke stated that breaches of the act of 1696 ought to be and were most properly determined in the viceadmiralty courts in the plantations, from which an appeal lay by express provision in the vice-admiralty patents to the High Court of Admiralty in England. Among the many instances of such recourse Cooke particularly recalled the late appeal from the Providence condemnation.272 A month later Cooke seems to have changed his mind, for in a joint opinion with Attorney General Northey a contrary view was expressed. This later opinion stated that the 1696 act did not direct establishment of admiralty courts in the plantations, but presupposed their settlement. It further advised that plantation practice under the instant act had been to sue for forfeitures in the various admiralty courts, that many unregistered ships had been condemned in such suits, that appeals had been taken to the King in Council from such sentences, and that the jurisdiction of the admiralty courts had never been denied on such appeal. 273 ίββ

Ibid., 332. The Providence sentence was affirmed in October, 1 7 0 1 , and the appeal was dismissed with costs (CSP, Col., 1702, # 1 7 8 , 648). But this adjudication in the cause did not prevent charges from being leveled by Pcnn and the owners at Quary and other admiralty officers in regard to their conduct in the cause, especially as to the appraisement of the cargo (CSP, Col., 1702, # 1 3 5 , 1 4 1 , 6 1 2 ; 1 Penn-Logan Corres., 83-84). See also CSP, Col., 1702, # 6 4 8 . It would appear that in affirming the sentence below little attention was paid to procedural correctness. John Moore, the King's Advocate in Pennsylvania, wrote the Lords of the Admiralty: "I submissively leave to your Lordships' wisdom and consideration that, if the High Court of Ad209

miralty should inspect these proceedings, and the stress lie on the form or method thereof, 'tis past a question they will be nulled. How can it be expected that a warped, biassed, and ignorant Register . . . would methodize his records fit for the view and nice scrutiny of that most learned Court? So that, granting the ship unduly qualified, yet the absurdities in the entries will unavoidably destroy the Decree" (4 H. of L. MSS [n.s.\ /699-/702, 337)· 270

See CSP, Col., 1702, # 3 5 6 , 395, 462, 580. There was no direct question as to the matter of appeals. See ibid., # 5 8 5 , for the four queries. 27 -Ibid., #596. 27:1 Ibid., # 7 0 8 . Cf. the views of Northey as related by Penn (1 Penn-Logan Corre!., 1 1 6 ) . 271

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T h e Board of T r a d e , not entirely satisfied b y these opinions, addressed f u r ther queries to N o r t h e y and C o o k e . 2 7 4 A l t h o u g h not specifically stated in his n e w reply, it is an ineluctable inference that the A d v o c a t e General w a s of the opinion that appeals w o u l d lie to the H i g h C o u r t of A d m i r a l t y in E n g l a n d f r o m vice-admiralty court sentences enforcing the A c t s of T r a d e in the plantations. 2 7 8 Starting f r o m different premises, N o r t h e y arrived at an opinion opposed to that of C o o k e and generally hostile to the admiralty jurisdiction. 2 7 9 In short, the opinions chanted minor variations on a constant theme—the struggle for jurisdiction between the c o m m o n l a w and admiralty c o u r t s . 2 7 7 W h i l e this question of appellate jurisdiction w a s being canvassed in connection with the jurisdictional dispute in Pennsylvania, it also w a s raised by several conciliar petitions. In September, 1 7 0 1 , the o w n e r of the Rebecca,

upon

petition to the Council Board, received leave to appeal f r o m a Barbados V i c e A d m i r a l t y C o u r t sentence condemning his vessel as unregistered. 2 7 8 A t the same time an appeal f r o m the condemnation of the Experience The proprietor also wrote: "I fancy his [Quary's] wings will be clipped in admiralty matters every day, upon the appeals from the colonies against admiralty judgments; they are set by here upon hearings before the Committee of Appeals, whereof Lord Chief-Justice Holt and [obliterated] Trevor are members" (ibid.). 274 When the joint answer of Cooke and Northey was read at the Board on July 10, 1702, Cooke was desired to attend the Board (CSP, Col., 1702, # 7 4 5 ) . When he attended accordingly, further queries were decided upon, and Cooke was desired to advise with the Attorney General therein in order to the return of their joint opinion (ibid., #748). One query was whether the courts of viceadmiralty in the plantations had any further jurisdiction than was allowed of or usually exercised by the Admiralty jurisdiction in England, and what that jurisdiction was (ibid.. # 7 5 1 ) . 275 Reviewing the jurisdictional clauses in the various Acts of Trade and Navigation (12 Car. Π, c. 18; 1 ; Car. Π, c. 7; 22 and 23 Car. II, c. 26; 7 and 8 William III, c. 22), Cooke concluded that the Admiralty jurisdiction in England in offenses against the Acts of Trade was as extensive as that of the plantation vice-admiralty courts, and that such jurisdiction in England was identical with that of the courts of Westminster Hall. The important step in Cooke's reasoning was that the admiralty courts in both places were the King's courts and consequently courts of record, relyine upon a 1612 declaration of all

and

Susanna

the judges (ibid., # 7 7 8 ) . But the cited agreement of 1632 is silent upon the point in quesdon; see 1 Benedict, op. cit., #640. 278 The opinion of Northey assumed that Admiralty courts were not courts of record and that suits being in courts wherein no essoin, protection, or wager of law was allowed limited suits to common law courts. This resulted in a denial of any jurisdiction to the vice-admiralty courts under some of the statutes. The 1696 law gave no jurisdiction to the Admiralty Court in England for any offense in unlawful trading to or from the plantations, fcr suits under this enactment had to be brought in the Queen's courts of record at Westminster (CSP, Col., /702, #889). No direct statement was made as to appeals, but as a necessary corollary they would not lie to the High Court of Admiralty. 277 As to the result of the controversy in Pennsylvania, note that a later act ( 1 7 1 5 ) in the colony directing appeals to Great Britain allowed appeals to the King in Council from the "courts of Admirality." But there was no limitation to causes arising under the Navigation Acts (Charter and Laws Prov. Pa. [1879], 355)· 278

The petition for leave to appeal (see PC 1/46) was referred to the Committee (PC 2/78/249); upon Committee report (PC 2/ 78/256) the appeal was admitted by the Council, and ordered heard on the first June, 1702, Council day, with the usual directions about security and transmission of proceedings (PC 2/78/256). A bond of ¿ 5 0 0 was entered into to prosecute accordingly.

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in the Antigua Vicc-Admiralty Court was sought, but the petition disappeared after reference to the Committee. 279 A t the same date a further conciliar petition was presented by one Samuel Barron complaining of a March, 1700/1, condemnation of the ship America by Governor Codrington of the Leeward Islands, reversing a court of vice-admiralty sentence. Petitioner set forth that an appeal had been taken originally to the High Court of Admiralty, but having been since advised to appeal to the King in Council, allowance of such an appeal was prayed. 280 The Committee to which the petition was forwarded to examine and report whether the petitioner could be admitted to an appeal, advised in December, 1701, that the sentence appealed from be declared null and void and the petitioner restored to possession of the ship and cargo or the value thereof. The rationale of the advice was that no appeal lay from the court of vice-admiralty to the governor. 281 A s a result of these causes, the Council became inquisitive as to the jurisdictional basis of the vice-admiralty courts in the plantations. The Board of Trade was therefore ordered on December 18, 1701, to determine from the various governors whether such courts in their respective colonies were held by virtue of judicial commissions from the Lords Commissioners of the Admiralty or of commissions under the Great Seal empowering establishment of such courts. 282 The Board of Trade encountering delays in obtaining the requested data, 283 the Committee meanwhile did not see fit to hear the appeal 278

PC 2/78/257. pc 2/78/258. 281 PC 2/78/281, 286. A similar case is found in the case of In re Swan, in which William Mead petitioned for leave to appeal from a sentence of the High Court of Admiralty at Antigua (rendered by Governor Codrington as Principal Judge and Commissary of the Leeward Islands) of March 20, 1700/1, reversing a Nevis Court of Admiralty sentence condemning the Swan for illegal trading (PC 2/78/303). The Committee advised that the sentence appealed from be declared null and void and that possession of the ship and cargo or the full value thereof be restored to appellant. An Order in Council issued as advised (PC 2/79/41). It is not apparent in these two cases whether Codrington was acting in an appellate capacity by virtue of his gubernatorial commission (see infra, n. 283) or by virtue of a commission as vice-admiral. Some evidence points to the latter in that the term "Commissary" is found therein; see 2 Pub. Col. Soc. Mass., 379. See also the statement by Codrington, intra, n. 283. 282 CSP, Col., 1701, # 1 0 9 4 . 280

283

The circular letter is set out at ibid., ¡702, # 1 9 7 . It was alleged by conciliar appellant Symcocks in a May, 1703, petition that Governor Codrington of the Leeward Islands was the sole correspondent (ibid., ¡702-3, # 7 4 5 ) . This official replied that he acted "by a Commission under the seal of the Admiralty," conceiving that he could legally act by no other. As to reasons, he wrote, "I shall only use the authority of Sir Charles Hedges, who, after a very solemn argument by the best advocates in the Commons, reverst sentence past by Father, not because it was not just, but as coram non juJice, because he had not then an immediate power from the Admiralty, but acted by virtue of a clause in his Commission under the Great Seal" (ibid., ¡702, # 5 7 0 ) . However, it was replied from Barbados that the Vice-Admiralty Court was held "by virtue of a power given to Lord Grey by a Commission from His late Majesty under the Great Seal of the High Court of Admiralty" (ibid., # 5 0 4 ) . From Jamaica, it was answered that the court was held by virtue of the clause in the governor's commission authorizing the establishment of courts (ibid.,

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in the case of In re Rebecca until the information had been supplied. 2 8 4 Finally, upon appellant's persistent petitioning, the Board of T r a d e was ordered to bespeak L o r d G r e y , governor at the time of seizure and then present in town, and return an opinion in the matter. 2 8 5 T h e Board, upon considering the matter, 2 8 8 reported that they found that the colonial vice-admiralty courts were constituted by virtue of commissions from the crown under the seal of the H i g h Court of Admiralty for the trial of marine causes, and causes relating to breaches of the A c t s of T r a d e pursuant to the Act for Preventing and Regulating

Abuses

in the Plantation

Frauds

Trade, and that all appeals without

distinction, as well in causes marine as in others, did always lie before the K i n g in Council as the easiest, most expeditious, and least expensive method for the inhabitants of the plantations concerned in appeals. 2 8 7 But there is no further record of the appeal In re Rebecca before the Council. T h e s e various opinions did not serve to setde the question of appellate jurisdiction over the plantation vice-admiralty courts. In 1704 one Peter Vanbelle, in a petition to the Council, complained of the condemnation of some slaves by the N e v i s Vice-Admiralty Court in M a y , 1699, from which sentence petitioner appealed, and prayed directions to the governor to examine the allegations and to return the true state thereof, together with copies of the proceedings, in order to a hearing before the Queen in Council. 2 8 8 T h e Board of # 7 4 3 ) . From New York, Lord Cornbury wrote that the first regular Court of Admiralty was established by Colonel Fletcher by virtue of a warrant from the Lords of the Admiralty empowering him to appoint a Judge, register and marshal for the Court of Admiralty; that in Bellomont's time there was a commission from the "Lord of the Admiralty" appointing Colonel Smith judge; that since then Atwood had brought over a commission from the Lords of the Admiralty constituting him Admiralty Court judge (ibid., # 1005). 284 ibid., 1702-3, #745. 28 »PC 2/79/395· 288 See CSP. Col., 1702-3, #794, 803, 879. There is nothing to indicate Lord Grey was consulted, but see the answer from Barbados, supra, n. 283. 2,1 Ibid., #890. The views expressed by Andrews in 1 Cambridge History of the British Empire (1929), 297, are divorced from reality. This writer declares that appeals "at first without distinction were directed to the King in Council. When it was made clear that the courts were held by virtue of a commission under the seal of the Admiralty, the Privy Council ruled that appeals should lie to the High Court of Admiralty."

288 PC 2/80/77. For the earlier history of this cause, it is necessary to retrogress to 1699. On July 13 of that year a petition of Vanbelle was referred to the Board of Trade by the Earl of Jersey. In this petition denizen Vanbelle alleged purchase of a plantation in St. Christopher and, upon inquiry as to importation of slaves, information that the governor would permit importation in foreign bottoms, since there were no English ships at St. Thomas. Petitioner made the importation accordingly, but the Collector seized the slaves on the ground of importation in foreign vessels contrary to the Navigation Acts, only releasing them on £2,000 security. In the interim the governor collusively revoked the permission granted, so petitioner prayed royal protection (CSP, Col., 7699, #648). The Board of Trade sought information in the matter of the Commissioner of Customs (ibid., # 6 5 0 - 5 1 ) , who forwarded the version of Mead, the seizing collector. From his reports it appears that an appeal for England was prayed even before judgment given, when the opinion of the court was known that the slaves would be condemned; that Vanbelle was resolved to use his interest in England to reverse the judgment, which the Commissioners were

i8 4

T H E S E T T L I N G OF JURISDICTION

Trade, to which the matter was referred, sought the opinion of the Attorney General whether the Queen might hear the appeal and direct the Nevis proceedings to be transmitted accordingly. 289 On this query, Attorney General Northey was of the opinion that if the court which rendered the judgment complained of was held as a court of admiralty under the late King's commission for governing the Leeward Islands or if the sentence was given by the President and Council as a council board, then the appeal in both cases ought to be to the Queen in Council. But if the court was held by authority derived "from the Admiralty of England," appeal was to the Court of Admiralty of England, "and soe it was lately determined by Her Majesty in Councill." 2 9 0 The Board of Trade, on June 13, 1704, quoting this opinion, advised a letter to Governor Mathew directing inquiry into the matter, and if it were found that the court had been held by virtue of the late King's commission, ordering transmission of authentic copies of the proceedings in order to a hearing before the Queen in Council. If the court should be found to have been held by authority "from the Admiralty," petitioner was to be left to proceed as in cases belonging to the Admiralty. 2 0 1 Such a letter was ordered by the Council and dispatched. The answers returned afforded little information, and the cause was allowed to fade from the Council's attention. 292 In a report of the Board of Trade delivered to the House of Lords on November 30, 1704, the following statement was made concerning the establishment of vice-admiralty courts in the colonies : " T h e Courts of Admiralty in the plantations are constituted by commission under the seal of the Admiralty of England, the powers of erecting Courts of prayed to oppose. The Commissioners stated as to the grounds of the seizure that negroes were considered as goods within the meaning of the Navigation Acts; as to any permission of or collusion by the government, the Commissioners were uninformed (ibid., #666). The Board of Trade informed the Earl of Jersey of its belief that Vanbelle was not innocent, but well versed in methods of illegal trade; that it was not fit to stop any suit relating thereto now in progress; that if it finally appeared that the governor had acted contrary to his duty, Vanbelle could have remedy at law or the King could punish; that if after judgment either party should feel themselves aggrieved, an appeal would then be open from thence to the King (ibid., #685). 289 CSP, Col., 1704-S, #319. 2eo 2 Chalmers, Opinions of Eminent Lawyers

( 1 8 1 4 ) , 227; CSP, Col., 1704-S, #337· Schlesinger (28 Pol. Science Quart., 283, note) naively assumes that the distinction based upon the authority by which the court was held solved the problem of the correct appellate jurisdiction. 291 CSP, Col., 1704-s, #387. 292 PC 2 / 8 0 / 1 3 9 ; CSP, Col., 1704-5, #460, 969, 1 1 3 7 . Lieutenant-Governor Johnson found it difficult to discover any records in the cause, but the general tenor of his communication upheld the sentence. As to the point in question, he wrote that he found "it has been allwaies practicable for the Generali, or in their absence or death, for the Governors or President and Councill of Nevis to hold Courts of Admiralty in their proper persons, if they think fitt, and then and their preside and determine causes."

T H E S E T T L I N G OF J U R I S D I C T I O N

185

Admiralty by virtue of her Majesty's immediate commission to her Majesty's governors, having been lately by her Majesty's special directions set aside, so that the said Courts in all her Majesty's plantations are now wholly under the direction of his Royal Highness the Lord High Admiral, and such as are commissioned by him in each plantation." 2 9 3 For a few years following this focus of administrative attention, the jurisdictional question remained dormant. But in 1711 the question as to the authority by which vice-admiralty courts were held in the plantations was again raised by Secretary Dartmouth and was deviously "answered" by the Board of Trade by reference to the terms of the vice-admiral commissions given to all governors whereby the governors were empowered to appoint a deputy or deputies for determining all maritime affairs and to the clause in the gubernatorial commissions authorizing the constitution of courts.894 In the same year we find an opinion by Sir Charles Hedges that in case of any complaint or appeal from proceedings in plantation vice-admiralty courts, all sentences in civil and maritime causes were to be determined by the High Court of Admiralty in England. Upon failure of justice in that court, the final determination was to be in the Court of Delegates.295 In March, 1715/6, Advocate General Lloyd was questioned by the Board of Trade whether an appeal from the New York Vice-Admiralty Court condemnation of the ship Eagle for illegal trading had been heard as yet in the High Court of Admiralty.296 Lloyd replied that the appeal had been dropped, but added, "Not that but the appellants might have reheard the cause here. For by law appeals doe lie from the Admiralty Courts in the Plantations, to the Lord High Admiral in the High Court of Admiralty of England, in common maritime causes." 267 Furthermore, in 1720 Richard West, legal adviser to the Board of Trade, in answering a reference as to use of prohibitions by colonial common law courts against the vice-admiralty courts, declared it "irregular" to appeal to the King in Council from sentences of the latter courts. From such 293

6 H. of L. MSS (n.s.) 92. »44» 2 3 5 - 3 6 ) . 53 109, 136. Appraisers were also used in this See the Rhode Island statutes, infra, pp. 246situation. 47. In Hassard v. Potter it was objected that the 55 matter in difference did not meet the minimal Jones v. Porter (Va.), Case of Appellant, requirement. The Superior Court of Judicature p. 2 (L.C., Law Div.).

T H E R E G U L A T I O N OF A P P E A L S

225

the elimination of instructional minimums in cases involving real property. 56 It should be borne in mind in this discussion that instructions as to minimums for appeal allowance, although binding on colonial appointees, constituted no limitation upon the King in Council. This principle, already recognized in conciliar practice, was reiterated by Attorney General Northey in an opinion (March, 1714/5) that the King could allow writs of error or appeals from complained-of decrees in plantation courts although under the value for which the governor was directed to allow appeals. 57 A later opinion (December, 1717) was to the same effect. 58 This meant that not only were appeals to the King in Council admitted in nonminimum causes but also that the Council Board went even further and ordered the allowance of writs of error from inferior to superior colonial courts in such cases, with further provision for appeal thence to the King in Council. Such allowance was inherent in the normal conciliar policy of permitting appeals to the King in Council from only the superior courts in the respective plantations.59 It should be ob56

CO 5/650/233-34. This was stated in an opinion upon the petition of one Samuel Lillie for the grant of a Commission of Enquiry in connection with alleged unjust proceedings in the Massachusetts courts. Northey advised that by law no such commission could issue (PC 2/83/278; PC 2 / 8 5 / 2 0 1 ) . It should be noticed that the instructions were regarded as binding on the crown as a litigant (see 5 Journals Assembly Jamaica, 500-501), although acts of Parliament did not bind the crown unless specially named (7 Coke Rep. 32a; 1 1 Cok_e Rep. 66b [Magdalen College Case]). 57

58 Secretary Addison referred to the Board of Trade the petition of William Cockburn for relief from a Jamaica chancery decree wherein the governor was restrained by his instructions from allowing an appeal as under the minimum sum (CSP, Col., 1717-18, # 2 1 8 ) . The Board of Trade took the opinion of Attorney General Northey in the matter (ibid., # 2 3 2 ) . The Attorney General replied that despite the obstructing instruction to the governor "it is in his Majesty's power, upon a petition, to allow an appeal in cases of any value, where he shall think fit, and such appeals have been often allowed by his Majesty" (2 Chalmers, Opinions, 177; CSP, Col., 1717-18, # 2 6 6 ) . Thereupon, the Board of Trade represented to Secretary Addison that the King might by a particular order dispense with the instruction objected to and direct the governor to allow an appeal (ibid., # 3 2 0 ) . Cf.

the 1742 statement that the Committee granted appeals as a matter of course where the value of the matter in question exceeded £ 300 (1 haw Papers, 1 1 Conn. Hist. Soc. Coll., 52). 59 In Smith v. Rex leave to appeal from a May 28, 1734, judgment of the Antigua Court of King's Bench and Common Pleas imposing a £ 1 0 fine for extortion was petitioned for (PC 2/93/457). Petitioner alleged that the fine being under the sum limited in general for the allowance of appeals, he could not be admitted to an appeal below. It was further alleged that a fee of office was involved of considerably greater value than the appealable minimum. The Committee advised against allowance of an appeal to the King in Council, since such appeals should be admitted only from the superior courts of the plantations— the Court of Errors here. But the Committee, observing the fine to amount to only ¿10 and finding that the governor was restrained by his 54th instruction from admitting appeals to the Court of Errors unless the sum exceeded £300, advised that the instruction be dispensed with in this particular instance. Petitioner was then allowed a writ of error to the Court of Errors and an appeal from thence to the King in Council (PC 2/93/503, 5 1 1 ) . This was a patent misreading of the instruction which was limited to "civil causes." See ι Labaree, Royal Instructions, # 4 4 8 . Actually there was no provision in the instructions to cover this situation of a criminal appeal; the provision for appeals in misdemeanor cases

226

T H E

REGULATION

OF

APPEALS

s e r v e d t h a t f o r t h e c o l o n i s t s t h e m o s t i m p o r t a n t effect o f t h e C o u n c i l ' s p o l i c y n o t t o b e b o u n d by t h e i n s t r u c t i o n a l l i m i t a t i o n w a s t h e i n t r o d u c t i o n o f a n additional step for litigants a n d one, of course, co nt r i but i ng to the e x p e n s e of appeal by m a k i n g necessary a petition for the admission of a cause b e l o w p a r value. A l t h o u g h t h e P r i v y C o u n c i l u s u a l l y a d h e r e d strictly to its r u l e t h a t a c a u s e h a d t o b e p u r s u e d t h r o u g h t h e v a r i o u s i n s t a n c e s in t h e p r o v i n c i a l

judicial

h i e r a r c h y b e f o r e a n a p p e a l w o u l d be e n t e r t a i n e d in E n g l a n d , in a f e w s t a n c e s a p p e a l s per

saltum

in-

w e r e a d m i t t e d , viz., a n appellant w a s a l l o w e d to

s k i p t h e final c o l o n i a l i n s t a n c e . 6 0 F u r t h e r m o r e , o w i n g t o a s t a t u t o r y c o n f u s i o n

was limited to appeals to the King in Council (ibid., # 4 5 8 ) . But the ¿ 2 0 0 minimum there still blocked an appeal, even in the absence of a policy of only permitting conciliar appeals from the superior courts of the plantations. This same erroneous reading of the governor's instructions occurred in Smith v. Rex (PC 2/94/601, 608, 616). This cause involved a H100 fine imposed in the Antigua Court of King's Bench and Common Pleas on July 22, 1735· The relief petitioned for was the same as granted in the earlier cause. In Titde v. White no writ of error had been allowed below from the imposition of a ¿60 fine in the Court of King's Bench and Common Pleas in St. Christopher in June, 1743. Again the writ of error had been denied as contrary to the governor's instructions as to appeal minimums. The relief granted was identical with that in the first case above for the same reasons of conciliar policy (PC 2/98/605; PC 2/99/3, 56). In 1749 Benjamin King of Antigua applied for similar relief from a ¿100 fine in the Court of King's Bench and Grand Sessions, but no action is recorded as taken on the petition (PC 2 / 1 0 1 / 2 4 4 ) . In Brown v. Bordley on consideration of a petition for leave to appeal from a Provincial Court of Maryland judgment, it appeared that the case was not yet regularly before the King for an appeal. It was therefore advised that appellant be admitted to bring a writ of error from the Provincial Court to the Court of Appeals or otherwise as he should be advised (PC 2/88/ 483). In Turnbull v. Topham the usual relief was afforded in a civil action in which the sum involved was under the £ 3 0 0 minimum (PC 2 / 1 0 2 / 4 3 7 , 480, 496). See also Smith v. Buckley, where a right of office was involved, although the immediate sum concerned was under the instructional minimum (PC 2 / 1 0 3 /

324); Young v. Dunbobbin (PC 2 / 1 0 3 / 3 2 6 ) . In Wall v. Jessup petitioner prayed that the judges of the Nevis Court of King's Bench and Common Pleas be ordered to sign a bill of exceptions and allow a writ of error to the Court of Errors with further liberty of appeal to the King in Council, but the prayer was refused (3 APC, Col., # 4 8 8 ) . In an August 21, 1770, opinion whether an appeal to the King in Council would lie in an action of debt in the Inferior Court of Common Pleas of Rhode Island brought by George Champlin (Comptroller of the Customs) for nine shillings. Attorney General De Grey stated: "I conceive the Lords of the Council will not per saltum hear the appeal if there are any immediate courts to which the error lies till the matter has passed through such jurisdictions" (7° 1 / 4 7 1 / 1 3 1 - 3 2 ) . Appellants must also have exhausted their remedies in the superior court of the colony. In Oulton v. Savage (PC 2/86/19, 93, 116) a petition for leave to appeal from a November 6, 1716, judgment of the Massachusetts Superior Court of Judicature was ordered dismissed, for on hearing counsel it appeared that petitioners had not applied for a review as they ought to have done and still might do according to the practice and method of proceedings in that colony. See An Act for Review in Civil Causes, 1 Acts and Res. Proti. Mass. Bay, 466. Cf. the action of the Committee in Cunningham v. Forsey, infra, p. 408. 6 0 See John Macarell's appeal admitted from the Pennsylvania Court of Common Pleas (PC 2/83/447; PC 2/84/251, 268). The date of the judgment appealed from does not appear in the Privy Council records, but it is likely that the February, 1 7 1 0 / 1 , act establishing courts was in force. Under this act the Supreme Court was the superior tribunal

T H E

REGULATION

OF APPEALS

227

in N e w H a m p s h i r e appeals f r o m the S u p e r i o r C o u r t of J u d i c a t u r e w e r e m a d e directly to the K i n g i n C o u n c i l , 6 1 as w e l l as v i a the i n t e r m e d i a t e t r i b u n a l of the G o v e r n o r a n d C o u n c i l . 6 2 T h e f o r m e r m e t h o d p r o b a b l y o r i g i n a t e d .in a 1 6 9 9 p r o v i n c i a l act, the d i s a l l o w a n c e of w h i c h w a s d i s r e g a r d e d in the p r o v i n c e . 6 3 T h e direct a p p e a l f r o m the S u p e r i o r C o u r t w a s m o r e f r e q u e n t l y utilized, b u t a t r e n d t o w a r d the m o r e o r t h o d o x appellate m e t h o d is discernible in the later p e r i o d . 6 4 I n o n e c a u s e the parties a p p e a l e d to d i f f e r e n t b o d i e s , 6 3 b u t a n a p p e a l w a s also t a k e n f r o m the s u b s e q u e n t G o v e r n o r a n d judgment.

66

Council

H o w e v e r , if the i n t e r m e d i a t e t r i b u n a l w r o n g f u l l y r e f u s e d to re-

ceive a n appeal, it w a s possible to a p p e a l directly to the K i n g i n C o u n c i l . 6 7

of the province (Charter and Laws Prov. Pa., 323). In the noncolonial field the same general rule of the Council Board was applicable, but in Mackie v. Maugier from Guernsey appellant was allowed an appeal to the King in Council from the Court of Judgments without taking the usual intermediate appeal to the plenary Royal Court (PC 2 / 8 5 / 2 2 1 ) . 81 Allen v. Waldron (PC 2 / 7 8 / 1 7 4 , 1 9 1 ) ; Merrill v. Proprietors of Bow (PC 2/104/86, 1 0 1 - 2 ) ; Trecothick v. Wentworth (PC 2/106/ 243); Dering v. Packer (PC 2 / 1 0 7 / 1 8 9 ) ; Rolfe v. Proprietors of Bow (PC 2 / 1 0 9 / 7 4 ) . 62 French v. Follansby (PC 2/102/28); Hilton v. Fowler (PC 2 / 1 1 1 / 2 6 1 ) ; James v. Meserve (PC 2 / 1 1 7 / 2 3 6 ) . 63 See supra, pp. 1 7 5 - 7 6 . 64 See supra, n. 62. In the judgment books of the Superior Court of Judicature only one appeal is found admitted to the King in Council from 1750 to 1774. This instance was Wentworth v. Atkinson, March, 1772 (MS N.H. Sup. Ct. Jud. Judg. Book., 1771-74, 248-51). Respondent was also granted an appeal to the Governor and Council. Appeals were denied in Merrill v. Proprietors of Bow (ibid., 1760-63, 59); Hall v. Sanborn (ibid., 1767—70, 18—19). The Governor and Council granted appeals in Proprietors of Durham v. Gillman (MS N.H. Court of Appeals and Supreme Probate Ree., 1742-74, 42); Wheelright v. Sanders (ibid., 1 1 5 ) ; Proprietors of Londonderry v. Flint (ibid., 1 1 8 ) ; Branfill v. Inhabitants of Portsmouth (ibid., 1 2 5 ) ; Pearson v. Willson (ibid., 1 2 9 ) ; Moffatt v. Livius (ibid., 188); Atkinson v. Wentworth (ibid., 215-16). 65 Wentworth v. Atkinson (March, 1 7 7 2 ) . No opposition was made by appellant (to the King in Council) to respondent's motion for leave to appeal to the Governor and Council

(MS N.H. Sup. Ct. ]ud. Judg. Book., 1771-74, 251). ββ Atkinson v. Wentworth (MS NM. Court of Appeals and Supreme Probate Ree., '742-74. 215-16). 67 In July, 1722, the Bishop of Sodor and Man and two insular vicars general complained to the King in Council of several fines inflicted upon petitioners by the temporal authorities of the Isle of Man for refusal to retract several ecclesiastical censures (PC 2/88/67). But upon hearing before the Council Board a year later, counsel for the temporal authorities objected to going into the merits, since the appeal was not regularly before the Board. See Add. MS 3 6 , 2 1 6 / 1 0 - 1 2 . Whereupon, the petition was dismissed because the appeal ought to have been made in the first instance to the Earl of Derby, the proprietor of Man (PC 2/88/ 282). When petitioners then attempted to follow the Council's directions, the Earl refused to receive petitioners, and the island officials refused the appeal on the grounds of the form of security offered, of submission to the sentence, and of failure to take the appeal within the customary month. To these objections the petitioners answered that no submission to the sentence had been made and that no time limitation for taking appeals existed (PC 2 / 88/392, 5 1 1 ) . The entire matter was then referred to the crown law officers, who made their report in May, 1724, after hearing both parties. After summarizing the contentions and evidence of both sides, the referees were of the opinion that the petitioners were not precluded from appealing by any lapse of time, since there was no time limit. Even if there were such limit, "yet it appears in this case that a petition of appeale was presented by the petitioners to your Majesty in Council within that time, which being an appeal to

228

T H E REGULATION OF APPEALS

A question arises whether this conciliar policy of only taking appeals from the highest plantation court could be pursued in the face of a charter provision allowing appeals from "any judgment" 6 8 or of an approved colonial act allowing appeals from "any court" in the province. 09 W e have, however, seen no discussion of any such conflict. 70 This conciliar policy probably was intended to strengthen the colonial judicial systems, but it might work hardship where difficulty was encountered in obtaining a quorum in the colonial appellate court. 7 1 An instructional clause which failed to prove satisfactory in operation was the requirement that execution be not suspended by reason of any appeal to a judicature properly superior to that of the Earl of Derby (according to the reason and practice of the civil law in like cases) was sufficient to prevent any lapse of the time for appealing to the Lord of the Isle, who is the intermediate judge." Further, "if the refusali of the appeale by the Lord of the Isle was erroneous (as we take it to be) the jurisdiction of reviewing and examining the sentence in the original cause docs now by reason of that refusali appertain to your Majesty in Council" (PC 2 / 8 8 / 5 1 1 ) . For further papers in this cause see Christ Church College MS, 257/1-5· See the Pennsylvania charter provision as to appeals (Charter and Laws Prot/. Pa., 85). 4 9 See the 1 7 2 1 Pennsylvania Act for Establishing Courts of Judicature in this province (ibid.. 3 9 1 ) . 7 0 Perhaps the Macarell appeal (supra, p. 60) is explained by the Pennsylvania charter provision. 7 1 In Orby v. Long (1708) Sir Charles Orby et ux. petitioned the Council that an adverse judgment had been rendered in the Supreme Court of Jamaica in August, 1706; that upon appeal to the Governor and Council (Court of Errors), three of the council were statutorily disabled from hearing the appeal as factors in the African slave trade (9 and 10 William III, c. 26, s. 20) and three others as judges below (see supra, p. 2 1 9 ) , so that no quorum could be obtained under the royal instructions. Petitioners thereupon appealed from the Supreme Court judgment, praying reversal (PC 2 / 8 2 / 1 4 7 ) . A Committee report indicates that Long et ux. alleged that sufficient councilors were now available in Jamaica to hear the appeal, so that it would be improper for the Privy Council to hear it. Petitioners replied that only five of the twelve councilors were qualified to hear the appeal and that it was utterly de-

48

spaired of assembling these five unless the King gave directions in the matter (PC 2 / 82/279). It was then ordered in Council that the Board of Trade propose to the King the names of two other persons duly qualified to be councilors who might make a sufficient number to hear the cause (PC 2/82/285). The Board of Trade recommended that the governor be required to order all council members who were slave factors either to quit that occupation or the council; that the governor be empowered to swear into the council three proposed members to fill possible vacancies if removals from the council were necessary (CSP, Col., 1708-9, # 4 5 3 ) . The advice was accordingly adopted (PC 2 / 8 2 / 3 0 1 ) . Cf. Russell v. Clarke where respondent complained that a writ of error taken to the Governor and Council of Jamaica from a Supreme Court judgment was only for delay of justice, a sufficient quorum being unobtainable for the same reasons as above (PC 2 / 8 2 / 1 5 5 ) . Before considering the matter the Committee sent the petition to the Governor and Council asking them to return a true state of the matter with their opinion as to what should be done for petitioner's relief (PC 2 / 8 2 / 1 7 3 ) . See also CSP, Col., 1708-g, # 1 7 4 , 382, 453. On the subject of slave factors and colonial officers see 1 Documents Illustrative of History of the Slave Trade in America (ed. E. Donnan, I93i)> 99-100. Edward Long (1 The History of Jamaica, 174-76) proposed in 1774 that in all suits by or against council members an appeal should lie directly to the King in Council from the judgments of the inferior courts. Such reformation plus assignment of certain times of the year for sessions of the Court of Errors would take away the principal sources of the general complaint "that it serves only the purpose of a dungeon for the incarceration of justice."

T H E the K i n g

REGULATION

in C o u n c i l . U n d e r

OF

APPEALS

this instruction appellate recourse m i g h t

229 be

r e n d e r e d futile b y the i n t e r i m i n s o l v e n c y of r e s p o n d e n t o r his w i t h d r a w a l f r o m the jurisdiction w i t h his assets. H o w e v e r , this b l a n k e t rule m i g h t b e t e m p e r e d in i n d i v i d u a l cases. I n o n e 1 6 9 9 case in w h i c h e x e c u t i o n h a d issued a p p e l l a n t petitioned the C o u n c i l that r e s p o n d e n t post security to a n s w e r the appellate d e t e r m i n a t i o n . S e v e r a l precedents i n the p l a n t a t i o n s b e i n g f o u n d , the B a r b a d o s g o v e r n o r w a s directed to take s u c h security, if it c o u l d be l e g a l l y required.72 B y 1 7 1 5 m a t t e r s h a d c o m e to such a pass that the B o a r d of T r a d e s o u g h t t h e o p i n i o n of A t t o r n e y G e n e r a l N o r t h e y w h e t h e r r e s p o n d e n t s h o u l d be o b l i g e d to g i v e security to be a n s w e r a b l e f o r the res

in case of appellate r e v e r s a l . 7 3

N o o p i n i o n is to be f o u n d o n this q u e r y . B u t in several colonies the i n s t r u c tions w e r e altered b e t w e e n 1 7 1 8 a n d 1 7 2 1 to restrict the p r o h i b i t i v e clause to a n y c a u s e w h e r e the j u d g m e n t of a n i n f e r i o r c o u r t w a s c o n f i r m e d b y

the

G o v e r n o r a n d C o u n c i l . 1 4 It still a p p e a r e d , h o w e v e r , that g r e a t i n c o n v e n i e n c e s arose because of i m m e d i a t e issuance of e x e c u t i o n w h i l e a n a p p e a l w a s p e n d i n g in cases w h e r e r e s p o n d e n t h a d b e c o m e i n s o l v e n t or h a d w i t h d r a w n h i m s e l f o r his effects f r o m the p r o v i n c e b e f o r e the r e v e r s i n g c o n c i l i a r d e t e r m i n a t i o n h a d b e c o m e k n o w n , thereby r e n d e r i n g it n u g a t o r y . 7 * T o correct this situation 72

CSP, Col., 1699, # 3 5 6 , 448, 544, 560-61. The Board of Trade stated that it might happen that respondent, having come into possession by virtue of the judgment of the Governor and Council, might prove insolvent, run away, or embezzle the proceeds of the execution. Appellant would thus be without remedy in case the King in Council reversed the sentence below (CSP, Coi., 1714-15, #4g3; ¡CTP, ¡714/5-18, 48-49)· 74 In Jamaica the change occurred in 1 7 1 8 ; in New Jersey and New York in 1720; in Barbados and the Leeward Islands in 1 7 2 t (1 Labaree, Royal Instructions, # 4 4 9 ) . The Board of Trade explained this addition "as being desirous to follow the original design of the instructions so far forth as the same may be agreable to the practice in the courts of judicature in England, where every appeal to a superior court stops the execution from the inferior, reserving out of that general rule such cases only as carry in the very face of them an appcarance of being vexatious" (CSP, Col., 1717-18, # 1 4 4 ; ibid., 1720-21, #654). 75 See the actions of one Thomas Bordley in some prolonged Maryland litigation which was before the Privy Council on several occasions (Proc. Md. Ct. appeals, 1695-1729, 73

xli et seq.). An act covering this situation had already been passed in Barbados, viz., An Act appointing security to be given by Appellees, May i o , 1720 ( L a w s of Barbados [ 1 8 5 5 ] . 24). Reciting the evil aimed at, the act declared that wlien any appeal was taken to the King in Council from any judgment or decree in the island, execution should be stayed until final determination of the appeal, unless respondent gave bond with sufficient securities in double the value of the judgment or decree to make restitution in case of appellate reversal. This statute was brought to the Council's attention by a dispute between one William Gordon and ex-Governor Lowther of Barbados. For the course of the dispute see 2 APC, Col., # 1 3 1 0 . T o render appellate relief more difficult of achievement in a ¿10,000 defamation action commenced by Gordon in the Court of Common Pleas against Lowther's attorney, Gordon and his faction secured the repeal of the above act and also of an act obliging judges to direct juries to bring in special verdicts at the instance of either party to a suit in order to enable them to lay their case fully before the King in Council on appeal. Lowther, alleging severe injury to his estate if execution should issue and doubt as to the ability of Gordon to refund the money

23o

T H E

REGULATION

OF

APPEALS

it w a s o r d e r e d b y c i r c u l a r i n s t r u c t i o n s in M a r c h , 1 7 2 6 / 7 , that in all cases w h e r e a p p e a l s w e r e a d m i t t e d to the P r i v y C o u n c i l e x e c u t i o n w a s to be s u s p e n d e d u n t i l c o n c i l i a r d e t e r m i n a t i o n o f the a p p e a l , u n l e s s g o o d security w e r e g i v e n b y r e s p o n d e n t to m a k e a m p l e restitution of all a p p e l l a n t lost b y m e a n s o f s u c h j u d g m e n t i n case of appellate reversal a n d a w a r d of e x e c u t i o n . 7 ® T h i s i n s t r u c t i o n w a s sent to v i r t u a l l y all the c o l o n i a l g o v e r n o r s , i n c l u d i n g those of t h e p r o p r i e t a r y a n d c h a r t e r e d c o l o n i e s . 7 7 It w a s t h e n i n c o r p o r a t e d in the s t a n d i n g instructions.78 T h e i s s u a n c e of this i n s t r u c t i o n d i d not ipso facto

root out the evil. In t h e

c o l o n y of J a m a i c a it w a s a p p a r e n t l y o f t e n d i s r e g a r d e d , f o r in 1 7 4 3 it w a s n e c e s s a r y f o r t h e L o r d s Justices in C o u n c i l to d e c l a r e that e v e r y a p p e a l f r o m a n y o r d e r , d e c r e e , or j u d g m e n t of a n y J a m a i c a c o u r t to the K i n g in C o u n c i l w a s a n i m m e d i a t e s u p e r s e d e a s to a n y p r o c e e d i n g s u n d e r s u c h o r d e r , decree, o r j u d g m e n t unless security w a s g i v e n as r e q u i r e d b y the i n s t r u c t i o n s . 7 9 upon reversal, prayed that execution be stayed upon his giving the usual security (ibid.). The Attorney General advised that the May, 1720, act be confirmed and the repealing act be disallowed, but submitted whether the petition should be granted as in effect making new law for a particular case (6 ibid., # 3 1 8 , contained in PC 1 / 4 7 ) . However, the Committee recommended, and it was so ordered, that Lowther be allowed to appeal even if the damages were under £ 500 and that execution be respited until Gordon gave full security both for restitution of the judgment sum, if necessary, and for payment of costs and damages (2 APC, Col., # 1 3 1 0 ) . The May, 1720, act was also objected to by one Anthony Crachrode, Chief Clerk in the Barbados Chancery, as a diminution of the profits of his office held by royal patent, since security bonds were to be given in the Secretary's Office. The act was also termed dilatory and expensive to the inhabitants ( C S P , Col., 1720-21, #462). See also the memorial of Whitworth, the Secretary of Barbados (ibid., # 4 6 5 ) . The Board of Trade, upon consideration of the several memorials and a report of Richard West and upon hearing the parties and Lowther, were of the opinion that the act deprived Crachrode of no established fee and that it was useful and for the public service (JCTP, 1718-22, 269, 293, 296-97). The act was thereupon represented as proper for confirmation (CSP, Col., 1720-21, #576) and was accordingly confirmed (3 APC, Col., #13)· For pamphlet background for the Gordon-

How-

Lowther dispute consult Win. Gordon, A Sermon Preached before the Governor, Council, and General Assembly of the Island of Barbados (1717); A Representation of the Miserable State of Barbados (1719) ; The Barbados Packet; Containing Several Original Papers: Giving an Account of the Most Material Transactions That Have Lately Happened in a Certain Part of the West Indies ( 1 7 2 0 ) ; The Self-Flatterer: or, The Art of Complimenting One's Self ( 1 7 2 0 ) ; A Letter from an Apothecary in the West Indies, to the Author of the High-German Doctor In England ( 1 7 2 0 ) . 7β ι Labaree, Royal Instructions, # 4 5 0 . Cf. JCTP, 1722/S-28, 282, 284. We have seen no support for the contention that the instruction was the result of Rhode Island practice (Keith, Constitutional History of the First British Empire, 307). The instruction was not even dispatched to this colony. 77 None was sent to Barbados, since the matter was already provided for by local act confirmed by the crown (supra, n. 7 5 ) , or to Massachusetts, since the matter was covered by a provision in the charter (1 Acts and Res. Prov. Mass. Bay, 1 5 ) . 1 Labaree, Royal Instructions, # 4 5 0 . For the instruction to a proprietary colony see 1 Pa. Archives (ist ser.), 196. For some discussion of the question whether a royal instruction was binding upon a Pennsylvania governor under the charter see infra, p. 604. 79 ι Labaree, Royal Instructions, # 4 4 9 . 79 This declaration was made in connection with the Order in Council in Philp v. Crawford (PC 2/97/460) and was based on a Com-

T H E R E G U L A T I O N OF A P P E A L S

231

ever, the problem here was not one of the insolvency or withdrawal of respondent, but whether an appeal from an interlocutory chancery decree should prevent further proceedings in the Chancery Court.80 Since one of the persistent horrors of contemporary English chancery practice was the cumulation of rehearings, the Council Order in this case is remarkable. This order, however, failed permanently to remedy the evil, for in 1755 the Committee represented to the Lords Justices that a practice had lately been introduced in the Jamaica Chancery of carrying on proceedings in causes after appeals had been taken to the King in Council.81 The Lords Justices thereupon declared null and void all such proceedings except in cases where security had been given in accordance with the royal instructions.82 This conciliar order also failed to extirpate the practice,83 but it should not be regarded as pure bombast. We find that in Gordon v. Hill, heard in July, 1756, "the Lords reversed the orders of 18th and 24th May, 1754, first in point of form, because they by the rules of the Board were void, being made pending an appeal to the King." 84 Since the Jamaica Chancellor and Ordinary were the same natumittee report on this appeal (PC 2 / 9 7 / 4 3 1 ) . 80 Counsel for respondents in Philp v. Crawford had argued in the chancery proceedings appealed from that if all proceedings were stayed by an appeal, the "practice might become an intolerable grievance for that if any interlocutory order might be appealed from and the proceedings thereon stayed every minute order made in a cause might be so and suitors thereby prevented from ever attaining an end of their suit" (PC 2/97/440).

appellant was decreed to make to respondents good and sufficient conveyances in law of the land in question, in such manner and in such rights and capacities as they were entitled thereto under the will of one Thomas Cardiff (Case of Appellant, p. 6 [L.C., Law Div.]). The Committee, upon the motion of appellant's solicitor, ordered that so much of the decree appealed from as ordered such conveyance be stayed until the hearing of the appeal and further Order in Council (PC 2 / 1 0 1 / 4 6 5 ) .

81

82

4 APC, Col., # 2 8 3 . This order probably issued as a result of the flagrant proceedings in Price v. Bonner; see Case of Appellant (L.C., Law Div.). But respondent claimed waiver of the appeals by appearance at further proceedings (Case of Respondent, pp. i o - l i [L.C., Law Div.]). For cases in which it was necessary to petition for a stay of proceedings below pending appellate determination see Hassall v. Morse (PC 2/100/460, 467); Bayly v. Smith (PC 2 / 1 0 4 / 1 3 5 , 1 5 5 ; Case of Appellant, p. 3 [L.C., Law Div.] and Case of Respondent, p. 4. [L.C., Law D i v . ] ) ; Foster v. Dupouy (PC 2/104/379, 442); Price v. Bonner (PC 2/104/380, 443, 468, 492); Beckford v. Nunez and Aikenhead (Case of Appellant, p. 6 [L.C., Law Div.]). In some cases exceptions might be made to the general rule that execution was not to be stayed, if proper security were given by respondent. In Garrioche v. Uniache ( 1 7 5 0 ) appellant claimed that the instruction should not apply in the case where

4 APC, Col., # 2 8 3 . See Case of Appellant in Williams v. Beecher (Add. MS, 3 6 , 2 1 7 / 1 2 3 ; ci. Case of Respondent, ibid., 1 3 0 ) ; Case of Respondent in Foster v. Dupouy (Add. MS, 3 6 , 2 1 7 / 2 1 6 ) ; Case of Appellant in Hyde v. March (Add. MS, 36,218/92); Case of Appellant in Peters v. Bourke (Add. MS, 3 6 , 2 1 8 / 1 6 1 ) . 84 Endorsed upon Case of Appellant (L.C., Law Div.) T w o reasons in point of substance also are noted for reversal. In his Case (p. 3 ) appellant argued "that the said order being made subsequent to an appeal prayed and allowed to this most Honorable Board from said order of 19 October 1753 and during the pendency of that appeal, ought, for that reason alone, was there no other, to be reversed, as coram non judice, and in contempt and defiance of the authority of this Board; and which is the only way that can effectually put a stop to this practice which has of late been exercised." 83

232

T H E

REGULATION

OF

APPEALS

ral p e r s o n s , it is not s u r p r i s i n g t o find the s a m e c o m p l a i n t m a d e as to O r d i n a r y p r o c e e d i n g s . 8 5 B u t such b e h a v i o r n e v e r b e c a m e o p p r e s s i v e or e v e n t u a t e d in a n a t t e m p t at conciliar correction. I s o l a t e d instances of this c o n d e m n e d practice a r e f o u n d in other c o l o n i e s . 8 6 A s v a r i o u s plantations b e c a m e r o y a l p r o v i n c e s or b e c a m e settled a n d dev e l o p e d , the territorial scope of

the r o y a l i n s t r u c t i o n s w a s , of course,

ex-

t e n d e d . 8 7 E v e n t u a l l y , in 1 7 5 3 , it w a s r e p r e s e n t e d to the colonial a d m i n i s t r a t o r s that t h e m e t h o d prescribed b y the i n s t r u c t i o n s relative to appeals f r o m colonial c o u r t s i n cases of error h a d b y s u b s e q u e n t p e r i o d i c c o n c i l i a r r e g u l a t i o n s bec o m e d e f e c t i v e a n d i m p r o p e r . 8 8 T o m e e t this c o n d i t i o n it w a s o r d e r e d b y circ u l a r instructions that in all c i v i l c a u s e s the g o v e r n o r s , u p o n application, a l l o w a p p e a l s f r o m a n y courts of c o m m o n l a w of the p r o v i n c e to the G o v e r n o r a n d C o u n c i l , issuing f o r that p u r p o s e a w r i t in the a c c u s t o m e d m a n n e r r e t u r n a b l e to the G o v e r n o r a n d C o u n c i l , w h o w e r e to h e a r a n d d e t e r m i n e the a p p e a l . 85

Stout v. Stout (Case of Appellant [L.C., Law Div.]; cf. Case of Respondent on this allegation [L.C., Law Div.)); Burn v. Cole (Case of Appellant, Add. MS, 3 6 , 2 1 8 / 1 4 4 ) . 88 Smith v. Mathews (Antigua, PC 2 / 9 3 / 4 5 9 ) ; Rickards v. Hudson (Virginia, PC 2 / 1 0 9 / 288); Kirwan v. Alexander (Antigua, Case of Appellant [L.C., Law Div.]); Dunbar v. Webb (Antigua, Case of Appellant [L.C., Law Div.]). The Committee appears even to have condemned execution of a decree where security was given by respondent. See Rickards v. Hudson (supra, p. 490), where respondent contended in vain that colonial decrees were not usually stayed where the party in whose favor the decree was made gave security to refund in case of reversal and that such stay would be attended with many ill consequences (Add. MS, 36,218/205). 87

Instructions were sent to South Carolina in 1720, the Bahamas in 1729, North Carolina in 1730, Nova Scotia in 1749 (1 Labaree, Royal Instructions, # 4 4 9 ) . From 1 7 1 8 to 1729 the Bahamas governor had been directed to follow a copy of the Jamaica instructions "as near as the circumstances of the place will admit" (1 bid., # 1 3 5 ) · The Nova Scotia governors from 1 7 1 9 to 1749 similarly were guided by a copy of the Virginia instructions (ibid., # 1 3 6 ) . For a 1733 refusal of an appeal from the Governor and Council on the basis of the Virginia instructions see Original Minutes of His Majesty's Council at Annapolis Royal, 1720-39, 3 Nova Scotia Archives (ed. A. M. MacMechan, 1908), 282-83. In 1728 the instructions to New Hampshire were

altered; the most important change was the allowance of appeals to the Governor and Council in causes exceeding ¿ 50 sterling. The minimum for appeals to the King in Council was also raised from ¿ 1 0 0 to ¿ 2 0 0 (2 Laws of N.H., 4 3 1 ) . 88 ι Labaree, Royal Instructions, # 4 5 3 . The change evolved in the course of preparing instructions for Governor Thomas of the Leeward Islands. John Sharpe, solicitor before the Board of Trade, made observations to Thomas Pownall of that body upon the instructions relative to appeals given to William Matthew, former governor of those islands. The instructions with Sharpe's observations thereon were ordered sent by the Board of Trade to the crown law officers for their opinions (fCTP, '749/5°~53· 406)· Upon the return of the crown law officers' report, a representation was made proposing an additional instruction for all governors for the better regulation of appeals to the King in Council from colonial courts in cases of error (ibid., 414, 426, 447, 448). By a July 26, 1 7 5 3 , Order in Council the Board was ordered to prepare drafts for all governors of such instructions as had been given to the governors of the Leeward Islands and of New York relating to appeals in cases of error (ibid., 454-55). It was later ( 1 7 6 5 ) stated by the Board of Trade that the alteration was solely intended to avoid an ambiguity in expression that might have admitted a doubt whether liberty of appeal did not extend to criminal cases (7 Doc. Rei. Col. Hist. N.Y., 762). See supra, n. 59, for cases in which dlis error was made.

T H E R E G U L A T I O N OF APPEALS

2

33

T h e instruction also established a uniform minimum of £y>o on appeals to the Governor and Council and ^500 to the K i n g in Council. 89 This minimum requirement was made equitable by a proviso that where the subject matter related to taking or demanding any duty payable to the crown or to any fee of office or annual rent or similar matter in which future rights might be bound, appeals to the K i n g in Council were to be admitted, although the immediate sum appealed for was less than the minimum standard. 90 Although remedial in nature, the changes wrought did not prove too felicitous. W h e n Governor Popple of Bermuda questioned the validity of the instruction, the Board found that the additional instruction had not been incorporated in Popple's regular instructions and was contrary to a 1707/8 insular act confirmed by the crown. Therefore the crown was of the opinion that the instruction ought not to be considered as in force or to be put into execution. 91 From Virginia it was protested that the instruction could scarcely be calculated for that colony in that the inconveniences intended to be remedied could never exist there. 02 A decade later the language of the instruction gave rise to the famous Cunningham

v. Forsey cause in N e w York, which we shall

later consider in detail. 93 But regardless of shortcomings the instructions to new royal colonies embodied these changes and additions to the earlier provisions regulating appeals. 94 Despite the equitable provision in relation to appeal minimums in the new instruction, application was made from N e w Hampshire, in 1754, for further The instruction was sent to the Bahamas, Barbados, Bermuda, Jamaica, N e w Hampshire, N e w Jersey, Nova Scotia, South Carolina, and Virginia. North Carolina received the instruction in 1754 (1 Labaree, Royal instructions, # 4 5 3 ) . Pennsylvania and Massachusetts both received the instruction, although, as to Massachusetts, the minimum expressed conflicted with the charter provision in that regard. See ι Acts and Res. Prov. Mass. Bay, 15. 9 0 ι Labaree, Royal Instructions, # 4 5 3 . It is possible that this liberalizing proviso stems from the petition of Wavel Smith and Savile Cust for leave to bring a writ of error from a judgment of the St. Christopher Court of King's Bench and Common Pleas to the Court of Errors and for either party to appeal from thence to the K i n g in Council if aggrieved. As appears from the Committee report advising allowance of the petition, the case failed to meet the minimum required by the governor's 54th instruction, although the judgment affected rights of office much greater than the immediate sum sued for (PC 2/ 103/315. 324. 345)· 89

JCTP, 1734/5-41, 202-3. It was represented that the instruction forbade the governor or members of the council who sat on the first trial from sitting on appeal, but that by the law and constitution of the colony the governor or council never sat in a judicial capacity, but in the General Court from whence no appeal lay but to the K i n g in Council; that this method was settled by the March 23, 1726/7, instruction whereby the General Court judges were to admit appeals in all cases at law or equity where the matter in dispute was of the value of ¿ 3 0 0 sterling; that the present instruction had extended the sum to £ 500 and seemed to be confined to suits that had been depending in courts of common law and which had been primarily determined by the governor and some of the council and had afterwards come before them by appeal ( C O 5 / 1 3 2 8 / W 184). See also 5 Executive Journals of the Council of Colonial Virginia, 1739-54 ( r 945)> 464-66. 91

92

See infra, p. 390 et seq. These instructions were sent to Dominica ( 1 7 7 0 ) , East Florida ( 1 7 7 3 ) , Georgia ( 1 7 5 4 ) ,

93 94

234

T H E REGULATION OF

extension of the appeal privilege.

98

APPEALS

T h i s application came f r o m the inhabi-

tants of R u m f o r d , w h o , holding under a Massachusetts grant, came under the jurisdiction of N e w H a m p s h i r e in the settlement of the boundary between the provinces. T h e proprietors of B o w , claiming under a N e w

Hampshire

grant, w e r e bringing ejectment to recover the lands. Since the B o w element controlled the courts and respected the appeal m i n i m u m , it had been necessary to petition the K i n g in Council for leave to appeal in the case of Merrill Proprietors

of Bow."

v.

T h e application resulted in a 1 7 5 5 instruction to the

governor that appeals should be admitted to the K i n g in Council in all cases w h e r e the matter in question related to the title of lands, messuages, or tenements, although the value thereof w a s under the required m i n i m u m , provided the right to other lands, tenements, and messuages exceeding the minimal a m o u n t depended thereon. 8 7 T h i s relief, however, w a s alleged to be of doubtf u l value, since no provision w a s m a d e for appeals under the m i n i m u m f r o m the Superior C o u r t to the Governor and C o u n c i l . 9 8

Quebec ( J 7 6 8 ) , S t Vincent ( 1 7 7 6 ) . West Florida (1767) (1 Labarce, Royal Instructions, #453)· 85 See the petition of Timothy Walker received by the Board of Trade on April 22, >754 (CO 5/926/B 53), and the report of the Attorney General and Solicitor General thereon (CO

5/926/B

67).

· · For accounts of this litigation see Walker, The Controversy between the Proprietors of Bow and Those of Penny Coo\, 1727-89, 3 Proc. N.H. Hist. Soc. ( 1 9 0 2 ) , 2 6 1 - 9 2 ; Akagi, Town Proprietors of the New England Colonies ( 1 9 2 4 ) , 1 6 5 - 7 4 ; ι Carter, History of Pembroke, N.H. ( 1 8 9 5 ) , 3 9 - 5 0 ; 1 History of Concord, New Hampshire (ed. Lyford, 1903), c. vi; J. B. Moore, Annals of the Town of Concord ( 1 8 2 4 ) , 8 6 - 9 8 . The Cases on appeal in Merrill v. Proprietors of Bow, are in L.C., Law Div. For the Cases on appeal in Rolfe v. The Proprietors of Bow, a later appeal in the same matter, see Add. MS, 3 6 , 2 1 8 / 1 8 1 - 9 2 . For the conciliar course of Merrill v. The Proprietors of Bow see PC 2 / 104/86,

101-2, m ,

315, 415, 419, 454.

The

Committee advised reversal of the judgment below in that "it did not appear, that the premises in question are comprized within the respondent's grant." For the later appeal see PC

upon

2/109/74,

433, 441, 453.

appellant's conciliar case by

Endorsed

Charles

Yorke is the following: "Possession in America presuming improvement in favour of the defendant's, so as to support their right, against the original title; unless it is proved, that the grants have been deserted and lands uncultivated. N.B., considerable evidence of improvement in this case" (Add. MS., 3 6 , 2 1 8 / 184). The Penny Cook proprietors were subsidized in their appeals by Massachusetts (5 MS Mass. Archives, [Colonial, 1728-74], 1 7 1 - 7 4 ; 6 ibid., [Colonial, 1724-75], 135-36) and the proprietors of Bow by New Hampshire (6 Doc. and Ree. Rei. Prov. ΝJí., 253, 294). 97 3 Laws of N.H., 632-33; 1 Labar«, Royal Instructions, #457. 98 A petition from the inhabitants of Rumford complained "that they had been gready distressed by many lawsuits respecting the property of their lands of an inferior value in which all access to the throne is barred otherwise than by way of complaint. And although they obtained an express order to the Governor in cases which concern the rights of many, however small in themselves, that appeals should be allowed, from the Governor in Council to the King in Council, yet they have not been able to reap any benefit thereby, because the said instruction does not expressly say that appeals should also be allowed from the Superior Court to the Governor in Council" (Add.

MS,

15,

489/1).

T H E REGULATION OF APPEALS

235

INSTRUCTIONS FOR N E W ACCESSIONS

Following the termination o£ the Seven Years' War, in 1763, a proclamation was issued for erecting separate governments within the countries and islands ceded to the K i n g by the Treaty of Paris. This proclamation declared that the respective gubernatorial commissions authorized the creation of judicial systems with liberty to persons aggrieved by sentences of the courts in all civil cases to appeal "under the usual limitations and restrictions" to the K i n g in C o u n c i l . " In the same year instructions to the governors of Quebec, Grenada, and the Floridas directed allowance of appeals in civil causes under the regulations prescribed in the respective instructions to Nova Scotia, Barbados and the Leeward Islands, and Georgia. 1 0 0 Since Quebec was by far the most important of the recent acquisitions of empire, it is desirable to examine more closely the establishment of appellate jurisdiction there. A s we have seen, the 1763 instructions to Governor Murray of Quebec directed conformance to the N o v a Scotian gubernatorial instructions "as near as different circumstances will admit."

101

O n September 17,

1764, pursuant to powers conferred by the governor's commission, a provincial ordinance was passed establishing a Superior Court of Judicature with full criminal and civil jurisdiction. From this court appeals were to lie to the Governor and Council where the matter in contest was above the value of ,£300 sterling, and from thence to the K i n g in Council in cases of ^500 sterling upwards. From a Court of Common Pleas with civil jurisdiction above £ 1 0 the same appellate recourse was available. 102 A n ordinance was also passed confirming all orders, judgments, and decrees of the military tribunals established prior to the civil government. A n exception was here made in cases where the matter in dispute exceeded ^300 sterling; in those an appeal was allowed to the Governor and Council if entered within two months. Further appeal to the K i n g in Council was allowed in cases amounting to ^500. 103 T h e 1768 instructions to Carleton followed those given for the majority of the older colonies, except that the appeal minimum in misdemeanor cases was ¿100. 1 0 4 99 PC 2 / 1 1 0 / 1 0 4 (October 5, 1 7 6 3 ) . A p parently no appeals were contemplated in misdemeanor causes although the usual instructions allowed such appeals. 1 0 0 ι Labaree, Royal Instructions, #454. 101 ι Doc. Rei. Const. Hist. Canada, 188. 102 Ibid., 206-7. F ° r the earlier French appellate organization see Cahall, The Sovereign Council of New France ( 1 9 1 5 ) , 202-15. 103 Ordinances Province of Quebec (1767), 16. It was complained that the appeal mini-

m u m was too high (1 Doc. Rei. Const. Hist. Canada, 213, 244; cf. ibid., 221) and that the time granted for entry of the appeal was too limited, especially as none of the usual exceptions in respect to infants, absentees, persons non compos mentis, etc., were made (ibid., 244). 104 Ibid., 307-8. Cf. ibid., 360, for an appraisal of appeals. Some complaint was made as to the hardship of the ¿ 500 minimum (ibid., 470).

236

T H E REGULATION OF APPEALS

After the passage of the Quebec Act (14 George III, c. 83) Governor Carleton was instructed, in 1775, to establish a Court of King's Bench with criminal jurisdiction, Courts of Common Pleas at Quebec and Montreal with civil jurisdiction, and inferior courts with criminal and civil jurisdiction in border districts. T h e Governor and Council were to exercise civil appellate jurisdiction where the matter in dispute was above £10, with further appeal to the K i n g in Council in matters exceeding ¿500 sterling. T h e regulation governing these appeals and the provision in misdemeanor cases remained as formerly. 1 0 5 Action under these instructions was delayed until 1777, when an ordinance gave effect to the instruction, 108 although a gubernatorial commission for a Court of Appeals issued earlier in August, 1776. 107 This enactment of instructions in the form of ordinances was unusual in colonial practice, as we shall see. INTERPRETATION OF THE INSTRUCTIONS

T u r n i n g now to the question of instructional interpretation, it has been indicated that a literal reading of the instructions as to appeals would seemingly preclude appeals to the K i n g in Council in equity causes in those colonies where the Governor or Governor and Council acted as a court of chancery of original jurisdiction. 108 T h i s matter was brought to the attention of the English administrators by Governor Hamilton of Jamaica in Ι7ΐ3, 1 0 β but the myopic Board of Trade failed to see the alleged defect in the instructions. 110 2 Doc. Rei. Conti. Hist. Canada, 600-602. See 2 ibid., 679, for courts of civil jurisdiction; 2 ibid., 690, for criminal. There is no provision in the latter for misdemeanor appeals. It should be noticed that an earlier 1775 draft of the former ordinance gave the Governor in Council appellate jurisdiction in cases involving title to land as well as those exceeding ¿10 sterling (2 ibid., 6 ; o , 655, 658). For a further ordinance regulating the method of appeals from the Courts of Common Pleas see 2 ibid., 682. 10S

104

1 0 7 2 ibid., 672-73. This commission embodied the instructional regulations. 1 0 8 In the instructional chronology the clause allowing and regulating appeals to the King in Council immediately followed the clause allowing and regulating appeals to the Governor and Council (see Learning and Spicer, Granu and Concessions of New Jersey, 641; 5 Doc. Rei. Col. Hist. N.Y., 137; 3 Col. Ree. No. Car., 106-07; 10 Mass. Hist. Soc. Coll. [4th ser.], 647-48; 3 Lincoln, Constitutional History of New YorH [1906], 727). The connecting phrase was "and if either party shall

not rest satisfied with the judgment of you . . . and Council as aforesaid, our will and pleasure is that they may then appeal unto us in our Privy Council." From this relation and connective language it is an inescapable inference that only causes before the Governor and Council in an appellate capacity were to be allowed further appeal to the King in Council. 1 0 0 In a March 5, 1712/3, letter to the Board of Trade Governor Hamilton wrote that two appeals had been taken from chancery decrees. Before admission of these appeals he had consulted his instructions, but had found no directions therein relating to appeali from chancery. Further, he could find no precedent of such appeals ever having been made from Jamaica. However, since the value in both suits exceeded ¿ 5 0 0 , he would not a k e it upon himself to refuse to admit them, being sensible of his liability to mistakes and errors in such cases (CSP, Col., 1712-14, #292). But he warned of an appellate flood, if chancery appeals were encouraged. 1 1 0 Writing to Governor Hamilton on July 20,

T H E R E G U L A T I O N OF APPEALS

237

The reverse of the Hamiltonian doubts was reflected in an opinion of Attorney General Northey that no appeals to the King in Council under similar Barbados instructions were to be allowed from any court but the Court of Chancery. 1 1 1 This opinion may be explained by a confusion in terminology, since the Barbados Governor and Council acted both as a Court of Errors and a Court of Chancery. Governor Hamilton reverted to this problem of interpretation at a later date, asking for information as to whether chancery appeals should suspend further proceedings. 112 The Board of Trade advised that the instructions as to nonsuspension of execution upon appeal, being general in nature, included chancery appeals. 113 However, in practice appeals from the West Indian chancery courts were regularly admitted, even though the instructional ambiguity was never clarified. On the mainland the question whether the gubernatorial instructions included chancery appeals arose two decades later in the N e w Jersey chancery cause of Van Courtlandt and Stoutenburgh v. Thomase et al. A provincial decree had been obtained in this cause in July, 1732, 1 1 4 but defendants were not returned attached for their contempts of a writ of execution until May, 1740. 1 1 5 Upon this return the defendants tendered Chancellor Morris an ap1 7 1 3 , the Board of Trade declared that the Governor had acted correctly in permitting appeals from chancery decrees, since they exceeded the value of ¿ 5 0 0 , "your Instruction being general to allow all above that sum" {ibid., # 4 1 3 ) . See also ibid., 1716-17, #123. 111 The view was elicited indirectly in answer to a query from Governor Lowther of Barbados whether appeals lay from the Court of Exchequer, a court of both law and equity, to the Court of Chancery, consisting of the Governor and Council (ibid., 1711-12, # 2 2 8 ) . Northey declared that the governor, by virtue of his instructions, was to admit appeals as well from the Court of Exchequer as from other courts in Barbados to the Governor and Council. This was plainly the intent of the instructions, no appeal being directed to be allowed from any court to the King, but from the Court of Chancery. An appeal from the Exchequer to the King would have been provided for if appeal had not been intended first to the Chancery (ibid., 1712-14, # 3 9 7 ) . In 1 7 1 7 Edward Sutton filed an English bill in the equity side of the Barbados Exchequer Court against Andrew Cassally, praying condemnation under two colony acts of the sloop St. Luce with cargo. The Exchequer Court declared the ship and cargo forfeit on August 3 1 , 1 7 1 7 , and Governor Lowther granted a writ of error to

the Governor and Council (Barbados MSS, 1731-78 [Harvard Law Lib.]). Further appeal was made to the King in Council (PC 2/86/ 1 3 1 , 167, 1 7 1 ) . But this Governor and Council jurisdiction was apparently seldom exercised, for the above cited Barbados MS is a March 22, 1735/6, certificate used to prove that such an appeal lay. 112 In August, 1 7 1 5 , the governor wrote that whereas his instructions that appeals were not to suspend execution were calculated only for courts of law, it had been recently urged that the allowance of chancery appeals without particular instructions thereon should suspend further proceedings as in cases at law, in the absence of special instructions to the contrary. But by a parity of reasoning Hamilton was of a different opinion; he even thought that there were stronger reasons against halting proceedings in equity appeals than in appeals at law, delays in the former being more fatal than in the latter. He also thought it unreasonable to encourage one class of appeals more than the other (CSP, Col., 1714-15, #88). 113

Ibid., 1716-17, #123. See A Brief State of the Case in James Alexander MSS, Box 37. 115 For the petition to Lewis Morris to seal the attachment see ibid. 114

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T H E R E G U L A T I O N OF

APPEALS

peal to the K i n g in Council f r o m the decrec, and alleged willingness to give security according to the royal instructions; whereupon, plaintiffs were ordered to show cause w h y the prayer should not be g r a n t e d . 1 1 6 T h e first reaction of plaintiffs' counsel was that the appeal failed to meet the instructional requirements. 1 1 7 T h i s was further insisted upon at a July, 1742, hearing to show cause. O n this occasion the governor questioned whether the clause in the instructions relating to appeals to the K i n g in Council did not rather refer to judgments by the Governor and Council in error. I f , indeed, the instructions were silent as to appeals f r o m the Chancellor, two points arose. First, whether the K i n g did not thereby intend by implication to prevent chancery appeals; secondly, whether the K i n g could even by express words deny the subject of the benefit of an appeal ad regent or limit the time, which w a s in effect a denial. A s to the first question, plaintiffs' counsel John Coxe was w i l l i n g to believe such intent. A s to the second, C o x e argued that if the K i n g could not deny the subject the benefit of an appeal or limit the time therefor, then he supposed the court would be governed by the civil law, which allowed ten or at most fifteen days after sentence for an appeal, so that defendants w o u l d be equally excluded f r o m an appeal. But what concerned plaintiffs more than prevention of an appeal was completion of e x e c u t i o n . 1 1 8 James Alexander, consulted in the matter, was of the opinion that the instruction afforded a new remedy, u n k n o w n to English practice. T o claim the benefit of the instruction there must be compliance with its conditions in point of time and security. Since this novel remedy did not deprive the subject of previously existing remedies, Alexander was of the opinion that defendants had a right to appeal by petition to the K i n g in Council or the Lords in Parliament as they should be best advised. B u t following E n g l i s h chancery practice there would be no stay of execution until the petition of appeal was g r a n t e d . 1 1 9 F o r defendants, counsel K i n s e y insisted that the subject had a right to appeal ad regem and that the K i n g could not limit the time or the sum involved. F u r t h e r , argued Kinsey, the method of appeal was by petition to the Chancellor as in the civil law, and the English practice of the H o u s e of L o r d s was un118

For the petition of appeal see ibid., Box 38. Cf. Fenwick Lyell to James Alexander, May 8,

1740 (ibid., Box 4).

117

It was advised that the appeal ought not to be allowed because not taken within fourteen days of sealing the decree and because the res (30 acres of nonarable land) was obviously not worth ¿ 3 0 0 sterling. As to the costs, they were only an appurtenance to the matter in question, and it was doubted whether they could be reckoned in the value. James Alexander and

William Smith to Fenwick Lyell; May 12, 1740 (ibid., Box 37). 118 John Coxe to James Alexander; July 4, 1742 (ibid., Box 2, # 1 0 6 ) . 118 James Alexander to John Coxe; July 12, 1742 (ibid., # 3 3 ) . For further discussion on the point that the mere petition of appeal to the King in Council or the House of Lords did not stay execution see Alexander to Coxe; July 26, 1742 (1bid., # 3 5 ) .

T H E R E G U L A T I O N OF APPEALS reasonable at this distance.

120

2

39

Nevertheless, in November the governor gave

an opinion in favor of plaintiffs, whether on the merits or on procedural grounds does not appear. 121 However, the arguments advanced against an appeal appear to have survived. Later, when a suit in chancery was proposed to settle the famous N e w Jersey land riots, it was seemingly opposed as affording no appeal to the King in Council. 122 In neighboring N e w York we find as late as 1770 adversión to the instructional silence as to chancery appeals. 123 The method of chancery appellate review in this colony is obscure, 124 but in at least one instance, Van Cortlandt and Philippse v. Palmer, an appeal from a decree by the Governor as Chancellor was taken to the Governor and Council as the Court of Errors. The appellate body in this 1727-28 cause declared that it exercised jurisdiction by virtue of the royal instructions.125 Although such an appellate hierarchy coincided with the then instructional hierarchy, the later 1753 instructions limited 120

Coxe to Alexander; July 24, 1742 (ibid., #107). 121 Coxe to Alexander; Nov. 1 1 , 1742 (ibid., #108). 122 See infra, p. 368. 123 Cadwallader Colden cited 3 Blackstone, Commentaries, 55, to prove that an appeal would lie from an interlocutory decree in equity, but then adverted to the instructional silence (2 Colden Letter Boo/^s, N Y H S Coll., Pub. Fund Ser. [ 1 8 7 7 ] , 249). 124 In Gouvernour et al. v. De Reimer an appeal was granted on May 20, 1 7 1 7 , but the appeal body was not designated (MS N.Y. Chancery Mins., 1711/2-19, 55). In the 1 7 2 7 28 cause of De Medina et al. v. Het an appeal was moved for, but the appellate court was unmentioned (ibid., 1720—48, 63-64). In Hinchman and Edsall v. Bloomer in 1774 an appeal to the King in Council was granted (ibid., 1770-76, 155-57). 125 For the taking of the appeal in this cause on May 2, 1727, see MS N.Y. Chancery Mins., 1720-48, 50 (N.Y. Hall of Records). For further proceedings in the cause see MS N.Y. Chancery Order Book, 1720-3$, 190, 210, 2 1 3 , 220, 223, 226, 242, 246, 253, 257, 260; for the demurrer and the answer see N.Y. Chancery Pleading, Ρ 2i ; for the lengthy parchment petition and appeal, reciting the decree and containing an assignment of errors at the end, see N.Y. Chancery Pleading, Ρ 24; for the enrolled decree, see N.Y. Enrolled Decrees, Ρ ι . Except as noted above all these manuscripts are in the custody of the Clerk of the New York Court of Appeals, Albany. On Feb.

28, 1727/8, James Alexander, counsel for respondent, moved the Governor and Council that the appellants bring up the transcribed decree within one week and assign errors within another or that the appeal be dismissed with costs. This was accordingly ordered, but then set aside on Mar. 2 because of insufficient notice of motion. Since this was the first such appeal ever brought in the colony, Joseph Murray, appellants' counsel, prayed directions for framing and prosecuting the appeal ( 1 5 MS Mins. N.Y. Council, 2 1 5 - 1 6 ) . On Mar. 7, in response to several questions put by Murray, the provincial council board declared that it was of the opinion that it received appeals by virtue of the King's instructions, that as the instructions did not determine whether it ought to sit as a council of state or as a branch of the legislative, it did not think it necessary to determine the point. Secondly, the board declared that a transcript of the decree should be delivered by the clerk of the Chancery to the clerk of the council in three weeks and errors assigned at the same time. Because of damage by fire the statement of the council as to whom the petition and appeal should be directed is lost, but the surviving petition and appeal was directed to Governor Burnet (ibid., 2 1 8 ) . On Mar. 23 the petition and appeal was received (ibid., 223), but the appeal was never heard. Cf. the later insistence of William Smith upon a review of equity decrees within the province (Opinion Relating to Courts of Equity within the Colony of New-York. [ 1 7 3 4 ] , 44)·

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the appellate jurisdiction of the Governor and Council to appeals from "any of the courts of common law." 1 2 6 The same question as to the inclusiveness of appeal instructions would seem to apply to appeals from the Governor acting as Ordinary. Yet in South Carolina in 1730 we find it assumed without question that appeals from the Ordinary were included within the ¿ 3 0 0 minimum for appeals to the King in Council. 1 2 7 CRIMINAL APPEALS

In the field of criminal appeals there was no unforeseen development during the eighteenth century. The provision allowing appeals in cases of fines imposed for misdemeanors amounting to or exceeding £100 or ¿200 was extended to twenty colonies during the century. 128 The provision for giving security remained the same as in the earlier instructions in this field. It has been noticed previously that in some cases the instructions governing appeals to the Governor and Council in civil causes were purblindly interpreted to include criminal causes. 128 Conversely, in some cases the instruction governing conciliar appeals in misdemeanor cases was erroneously applied to writs of error in criminal matters to the Governor and Council. 1 3 0 A n episode in Jamaica reveals greater vigilance. On July n , 1728, one Lancelot Tyler presented a petition to Governor Hunter in Council, setting forth his conviction in the Supreme Court of Judicature upon an indictment See ι Labaree, Royal Instmcrions, #453. MS Observations on the Present State of the Courts of Judicature in His Majesty's Province of South Carolina ( 1 7 3 0 ) , 5 (L.C.). 1 2 8 ι Labaree, Royal Instructions, # 4 5 8 . The ¿ 200 minimum was established (or the older and more important colonies at early dates, i . e . , Barbados ( 1 7 0 2 ) , Jamaica (1689), Leeward Islands ( 1 7 0 2 ) , New Jersey ( 1 7 0 2 ) , and New York ( 1 7 0 1 ) . Dominica ( 1 7 7 0 ) , East Florida ( 1 7 7 3 ) , Georgia ( 1 7 5 4 ) , Grenada ( 1 7 7 1 ) , and St. Vincent ( 1 7 7 6 ) were added later. Eight colonies had ¿100 minimums, ranging in date of establishment from Bermuda (1690) to Quebec ( 1 7 6 8 ) . Maryland enjoyed a ¿ 2 0 0 minimum instruction for but a short time, 1 7 1 4 - 1 5 . 1 2 9 See supra, n. 59. For the background of Wavcll Smith v. Rex (Antigua) see 6 APC, Col., # 4 4 3 , 448, 4 5 0 - 5 1 . In this case the governor was of the opinion that an earlier Order in Council dispensing with the instructional minimum in a similar case did not authorize a general dispensation of instructional limitations and so refused a writ of error (ibid., 128 127

#448).

1 3 0 In March, 1 7 5 3 , Benjamin King of Antigua in a petition to the Board of Trade related that he had been fined in the sum of ¿ 100, so that he could not be granted a writ of error which the governor by his instructions was forbidden to grant for a fine under ¿ 200 (CO 1 5 2 / 2 7 / A A 6 7 ) . Earlier, in May, 1749. King had petitioned the Council Board for leave to bring a writ of error to the Governor and Council and if necessary to appeal thence to the King in Council from a July 12, 1748, sentence of the Court of King's Bench and Grand Sessions, imposing a fine for extortion while acting as commissary and judge of the Court of Vice-Admiralty (PC 2 / 1 0 1 / 2 4 4 ) . The gravamen of the 1 7 5 3 petition was that the governor and his circle had drawn up a number of depositions detrimental to petitioner's character and dispatched them to the Board of Trade, although the petition for a writ of error pending before the Council Board was a judicial proceeding in no wise concerning the governor. For these depositions see CO 1 5 2 / 2 6 / Z 72; for the record below. CO 1 5 2 / 26/Z 35-

T H E R E G U L A T I O N OF

APPEALS

241

for stealing two slaves belonging to the South Sea Company and defacing their marks, under a 1696 act for the better order and government of slaves. On the ground that the indictment lacked certain essential allegations, Tyler moved the court in arrest of judgment, but the motion was denied. Tyler thereupon prayed a writ of error for reversal of the judgment, presenting an opinion of five insular counsel that the absence of the essential allegations constituted ground for reversal. 1 3 1 T h e governor thereupon took the opinion of his Council Board whether such a writ of error would lie. T h e Board was of the unanimous opinion that such writ would not lie, as the instruction relating to appeals seemed calculated for civil causes only. T h e Board also expressed great resentment that counsel presumed so notoriously to arraign the justice of the bench and jury and attempted to lead them into a method of proceeding that was unprecedented, illegal, and unjustifiable. 132 In a few instances the Privy Council intervened in criminal cases not covered by the instructions—treasons and felonies. T h e earliest cases, the appeals of Nicholas Bayard and John Hutchins, were more in the nature of exercises of the pardoning power and will be discussed later. 1 3 3 In June, 1 7 1 1 , one Thomas Macnemara of Maryland petitioned the K i n g in Council, praying that he be restored to the status of attorney, of which petitioner had been deprived because found guilty of homicide by chance medley, and that the record of his trial be certified in order to a reversal of the judgment. 1 3 4 A p parently the application was made because the Maryland Court of Appeals refused to allow prosecution of a writ of error by an unauthorized attorney 131

i l MS Mins. Jamaica Council, sub July 1 1 , 1728. Petitioner stated that it was not alleged in the indictment that the petitioner "did take and carry away" the said negroes. 132 Ibid. Compare the earlier Jamaica case of Brown v. Rex ( 1 7 2 3 ) , in which petitioner, alleging inability to procure counsel, prayed suspension of a ¿ 5 0 0 fine until the matter could be laid before the Council in a judicial way or petitioner otherwise relieved. It was ordered that the Governor and Council be instructed to admit a writ of error and assign petitioner counsel and that if the appellate judgment should be unfavorable to petitioner, he might appeal therefrom (PC 2/88/469). 133

See infra, p. 297 et seq. PC 2/83/256. For the proceedings in the Provincial Court upon the indictment for wilful murder see MS Md. Prov. Ct. Judg. Book., 1709-10, 2 3 1 - 3 4 , 398-99. For an account of the trial and comments thereon see CSP, Col., 1711-12, # 1 0 1 . It was related from provincial sources that "by reason of ye 134

many Roman Catholic friends the said Macnemara had to assist him in tampering with and sounding the inclinations of the jurors returned, of whose sentiments said Macnemara on his challenges was well advised by them, he was by those that remained unchallenged found guilty of homicide by chance medley and on that verdict the jury persisted against plaine evidence, tho they were twice sent back by the court. But the Chief Justice and his associates taking into consideration the barbarity of the fact with the malice prepense according to evidence, by his acting without any deputation from the sheriff and that in his own case which made it malice implied in law and so murder, they concluded that the jury had found the matter which was the manslaughter, yet they were judges of the manner, and so gave judgment that he was -guilty of manslaughter, and for grounds of such judgment relyed on the case of John Vane Salisbury in Plowden's Commentaries" (CO 5 / 720/118-19).

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T H E R E G U L A T I O N OF

APPEALS

during Macnemara's absence f r o m the province. 1 3 5 T h e Committee, upon considering the case of the petitioner, discovered that a jury had found Macnemara guilty, not of murder, but of homicide by chance medley and that petitioner had been denied a pardon, forced to pray his clergy, and afterwards by judgment burnt in the hand and discharged f r o m his status of attorney. Thereupon, the Committee advised that petitioner ought to have been discharged, not burnt in the hand or removed from his status as attorney. Further, that it was proper for the K i n g to grant petitioner leave by writ of error to remove the proceedings on the indictment and to command the Maryland court to restore forthwith to petitioner liberty to practice as an attorney. 1 3 6 A September Order in Council followed this recommendation, adding that the court below transmit the record and process of the indictment together with all the proceedings concerning the same to the K i n g in Council. 1 3 7 But in the interval the Provincial Court sentence was reversed upon writ of error to the Court of Appeals; consequently there was no occasion for further conciliar intervention. 1 3 8 A long period elapsed before any further felony causes came before the Council. In May, 1771, one Michael Brislane petitioned to be heard on an appeal f r o m a July 1 7 , 1 7 7 0 , judgment of the Montserrat Court of Errors, affirming an April 24, 1770, death sentence for murder rendered by the local Court of King's Bench. 1 3 9 T h e Committee, upon consideration of the petition and hearing appellant's solicitor, advised that the appeal should be dismissed as inadmissible, and it was so ordered. 1 4 0 However, the Committee forwarded a memorandum to be laid before L o r d Dartmouth for some directions to be transmitted to the Leeward Islands governor. T h e communication was to the effect that the Council were of the opinion that the special verdict ought not to have been received by the judges below, since it did not find facts, but only evidence thereof. T h o u g h the evidence seemed sufficient to have warranted the special verdict, yet the court was not to judge of the relevancy of evidence and to try facts, but only to declare the law upon such facts as were found by the jury and to give judgment accordingly. Since the verdict was a mere nullity, no judgment ought to have been given against petitioner, and it would be proper for the governor to grant a reprieve in order for the crown law officers and petitioner, respectively, to take such measures as they thought 135 p,.0739]> 90). CSP, Col., 1724-2$, # 1 5 3 . 54 Crymble v. Doe ex dem. Crymble (2 MS Jamaica Court of Errors Proceedings, 90); Barclay v. Morley (ibid., 1 1 2 ) ; Doe ex dem. Sharpe v. Witter (ibid., 123). 55 Certain other procedural advantages are inherent in this use of a general verdict with a bill of exceptions. Special verdicts might be imperfect or uncertain and thus be set aside

53

T H E SCOPE OF APPELLATE REVIEW In those continental colonics in which the c o m m o n l a w record was

rigueur the opinion

363 de

seems to have persisted that special verdicts were desirable

f o r appeal purposes, if not utterly necessary, but w e have not seen any evidence that measures w e r e taken as drastic as those in the W e s t Indies. Most of the c o m m e n t is professional. T h u s , in a 1 7 6 0 M a r y l a n d cause involving enforcement of proprietary rights a general verdict f o l l o w i n g a loose direction to bring in a special verdict was characterized as having "darkened the proper lights f o r an appeal."

se

A g a i n , in 1 7 6 3 T h o m a s Penn w a s advised in regard to a

p e n d i n g Pennsylvania suit of the necessity of a special verdict to obtain a conciliar j u d g m e n t upon the merits. But his adviser, H e n r y W i l m o t , declared that election to direct such verdict resided with the court, not with the parties, but that it w o u l d be "monstrous" in a jury to refuse to find specially upon such direction. 6 7 Counsel Benjamin C h e w , better acquainted with Pennsylvania

by the King in Council. See Mackaskell v. Robinson (PC 2/82/276, 287); Jones v. Tolleson (PC 2/86/381); Huggins v. Warren (PC 2/93/93); Mills v. Ottley (PC 2/102/87; PC 2/103/244, 262); Keeling v. Niles (PC 2/121/403, 556). Cf. Bayer v. Warner (PC i / 9 5 / 5 ° 6 ) . Similarly, in the case of an agreed statement of facts in lieu of a special verdict, see Burgess v. Hack (PC 2/94/29}·, Add. MS, 36,216/10;). Also a partial court might accept a special verdict which found only the evidence of one party to the cause; In Elliot v. Perne from Antigua a special verdict had been asked for by counsel, and the Court of Common Pleas had seemed to grant it, "but when the verdict was ready to be produced, was brought in and it appearing not to be a speciali verdict drawn upp in forme, whereby the whole fact according to the evidence given might appear; the said Mr. Pember and this deponent made several objections against the verdict, as that they found but one part of the fact arising only from the defendant's evidence, and take no notice of the plaintiff's evidence which was direcdy contrary to that of the defendant's, notwithstanding which and some hours argument, that the verdict might be drawne upp in forme by the counsell on both sides and a case made of it, the court overruled it and positively refused we should have any other verdict than what appears" (PC 1/47; see also 6 APC, Col., # 1 9 0 ) . The appeal was dismissed as not regularly brought by way of appeal from the Governor and Council according to the rules of appealing (PC 2/82/312, 317). Or the court might show partiality in the acceptance of evidence to ground the

special verdict (2 Correspondence of Governor Horatio Sharpe, 9 Md. Archives, 382-83). 56 Ibid., 383. For further discussion of this case, Wright's Lessee v. Jones, see Md. HJt. Portfolio 4, # 5 3 ( d ) ; Stephen Bordley to Governor Sharpe, July 4, 1760. For threats of removal from office because of irregular judicial behavior in this case, see ibid., # $ 3 (e) ( f ) . For the ability to secure a new trial upon a general verdict found contrary to judicial direction in Maryland, see Edmund Jennings to Lord Baltimore, May 27, 1743 (1 Gilmor MSS, Md. Hist. Soc.). " T h e suit was with the "Jersey Society" in regard to Callowhill Manor, and Wilmot was consulted as to a method for making the defendants consent to a special verdict. Wilmot wrote: "The necessity of a special verdict is evident, for if there be a general verdict no appeal can assist you for the evidence is not transmitted. So that though the verdict were ever so contrary to evidence, such evidence not appearing here, you could have no redress, and no evidence appearing to the contrary, the verdict must be presumed to be right. But if the whole facts as they appeared at the tryal be found specially, and the whole submitted by the jury in point of law to the court, then whichever way the court in Philadelphia determines, the other party (if he thinks he i> injured) may appeal, and the whole merits (which must be transmitted upon the face of the record) will be determined here on the appeal, but there is no way to compel the defendants to consent to a special verdict. Nor can I conceive the necessity of the consent of the defendants to a special verdict. The

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T H E SCOPE OF A P P E L L A T E REVIEW

practice, differed as to the power of the court and the need for adversarial consent, but relied upon a bill of exceptions to secure a rehearing.58 From Quebec, a few years later, came evidence that conciliar direction was necessary to secure a special verdict upon a new trial ordered.59 Accordingly, in 1769 jury arc the judges of the fact, and that they may find as they will, but if from the several facts proved before them, there arises a point of law the court and not the jury is the judge of this. The court may determine the point and direct the jury to find accordingly upon the spot, if they please. But if the court doubts and thinks it worthy of consideration they direct the jury to find the whole specially and this never was refused here and I cannot conceive it would be refused by any jury in Pennsylvania. For it would be monstrous in a jury to refuse to find a point specially (which they have no right to determine) when the court (who only can determine it) doubt it and desire time to consider it, and to have it solemnly argued before them and all this without any consent of the parties, which is absurd to the last degree. For at this rate neither the court, nor jury, could doubt about the law, unless the parties would them leave and consent that they should doubt. This is not all, if a point of law arises here and the judge delivers his opinion upon it immediately, if the counsel of the contrary side being a man of abilities will assert that he thinks the point not clear, and ought to be further argued, there is not a judge upon the bench here that will not in such a case direct a special verdict that it may be further considered and all this without consent of the parties, which is absurd in itself. Suppose deeds or wills are proved, and the doubt arises upon the construction of them. The fact of the due execution of them the jury can judge of, but of the construction they are, as they always are, ignorant. If the court doubt the construction, or if the court, being clear are willing in compliment to council to postpone it to further consideration, is it not absurd to say that this shall not be done without consent of the parties? In short the consent of the parties is never necessary, and the jury are bound to find a special verdict whenever the court direct it" (Henry Wilmot to Thomas Penn, July 6, 1763 [7 MS Penn Letter Boo\s, 1761-63, 3 4 1 - 4 2 ] ) . William Allen, consulted earlier, was of the opinion that by a bill of exceptions any matter might be appealed against, but that in some cases a special verdict might be directed (8 ibid..

1763-66, 7 1 ) . For earlier expressions on the necessity of special verdicts for appeal on the merits see 2 ibid., 1742-50, 17, 166. 58 William Peters to Thomas Penn, Dec. 24, 1767 ( 1 0 MS. Penn Officiai Corres., 1765—71, 121-22). 58 Among some observations of appellant's solicitor, Joshua Sharpe, on Christie v. Knipe and Le Quesne, a 1768 Quebec appeal (see 5 APC, Col., # 5 5 ) , is the following: "We must further strongly insist to get the judgment reversed upon the merits and a declaration or opinion of the Lords that the action would not lay, for otherwise the appellant will be harrassed again with a new action and never be at rest and it is more than probable that if they bring a new action they will take care to avoid all errors in point of form and by a general verdict without letting the merits appear on the face of the record oust us from all relief upon an appeal. "But if the Lords should not be of opinion to declare anything as to the merits or should incline to declare their reversal of the judgment should be without prejudice to the respondent bringing a new action, then we must urge that some direction be given that a special verdict should be found at the instance of either party and that the respondents should consent thereto, if they appear at all at the hearing, tho we are aware it may be said a jury is not bound to find a special verdict, but if the respondents consent they will be bound thereby and that the Lords would reverse any judgment given contradictory to such their order" (Add. MS, 36,220/159). Cf. the complaint of Francis Maseres, crown counsel in a Quebec suit for some duties on rum: "and as the fact of the existence of such duties was clearly proved, I exhorted them [the jury] to find a special verdict that the point of law might be determined by those who were the proper judges of it, the Chief Justice of the province here and the King in his Privy Council at home, and I represented it as their duty so to do; by which many of the pretended patriots at this place were much offended. But it is my sincere opinion that juries are bound in conscience to separate points of law from points of fact whenever they happen to

THE SCOPE OF APPELLATE REVIEW

365

wc find the authorities of this province favoring limitation of juries to special verdicts to prevent their passing on questions of law. 60 THE NEW ENGLAND RECORD

We have been discussing colonies in which the record corresponded with orthodox English procedure, but in New England, where evidence was taken down and made part of the record, opportunity to frustrate conciliar jurisdiction was more limited. It should further be observed that it is very probable that the practice in those parts, owing to the number and importance of the cases brought before the Council, undoubtedly colored the conceptions of the councilors as to the characteristics in general of colonial usage. Indeed, we have direct evidence that the home authorities were by no means clear respecting the attributes of the two procedures and their geographic distribution, for in 1751 Solicitor General Murray questioned whether it were not true that upon ejectment, etc., in New Jersey the whole evidence was reduced into writing and transmitted and that general verdicts were not allowed. To this solicitor Ferdinand John Paris replied that the usage of reducing evidence to writing upon ejectments was very common only in the charter governments, where the courts exercised mixed jurisdiction of law and equity. In no colony where the jurisdictions were distinct was the evidence upon ejectments taken down in writing and annexed so as to answer to a special verdict. On the contrary, Paris had known many general verdicts in ejectments from such colonies without any evidence annexed.61 This bit of instruction was apparently not digested, for in 1755 Murray answered in the affirmative a query from the Kennebec Company whether appeals were allowed in ejectment actions in New England, but added that the difficulty was "to avoid having general verdicts below, which prevents the Council here to examine the matter of fact." 82 Partridge, the company agent, commented on this that it was the practice in New England to return all the be blended together in general issues, and to determine only the latter leaving the former to the court, and for that purpose to find special verdicts in such cases, and more especially when the judge exhorts them to do so, as was the case in that trial" (Maseres to Fowler Walker, November 19, 1767 [Add. MS, 35,915/249; Maseres Letters, 1766-68, 3 Univ. Toronto Studies, Hist, and Econ., No. 2, 56]). See also Maseres to Charles Yorke, August i l , 1768 (Add. MS, 35,915/280). Cf. Coffin, The Province of Quebec and the Early American Revolution (1896), 3 1 3 - 1 4 . «ο ι Doc. Rei. Const. Hist. Canada, 358-59.

For the part played by refusal to give special verdicts in passage of the Quebec Act see 17 Parliamentary History of England, 1397. 61 Paris MSS, X 1 1 3 . 82 The question was asked in the interest of the Kennebec Company, which contemplated litigation concerning some disputed land titles (Add. MS., 15,488/100). Cf. the comment by Richard Partridge: "The charter mentioning nothing of appeals in real actions the people in the Massachusetts insist an appeal will not lye to the crown in any real action or wherein title of land is concerned" (ibid.).

366

T H E SCOPE OF A P P E L L A T E REVIEW

evidence, so that it was not material whether the verdicts were general or special.83 Finally, we may refer to an anonymous statement 64 written in 1765 regarding the method of taking appeals to the King in Council in the several colonies, which remarks that "the evidence both parol and written given on both sides" in both the original and appellate courts was made "part of the record, along with the process, pleadings, judgment, etc."6S

N o distinction

was made between the N e w England and the legally more orthodox colonies. W I L L I A M M U R R A Y AND COUNCIL PRACTICE

It is desirable at this juncture to speak somewhat more at length respecting the development of William Murray's (Lord Mansfield) views toward the close of our period, for he became the person most responsible for the trend toward professionalization of the Council's judicial function. The occasion on which Murray had sought solicitor Paris' advice was in connection with the acute disturbance over certain N e w Jersey lands. The prolonged course of this controversy needs no retailing here. It suffices to say that the cause arose in endeavors of the East N e w Jersey proprietors to enforce claims to land in the so-called "Elizabeth purchase," settled under pretense of grants from the Indians and from Colonel Nicolls. 68 Ejectment and trespass actions in the Add. MS., 15,488/127-28. " 4 N o clue as to the author has been found. 95 Add. MS. 35,914/189-90. · · See Fisher, New Jersey As a Royal Province ( 1 9 1 1 ) , 176-209, for a detailed recital of the controversy. Cf. Bond, The Quit-Rent System in the American Colonies, c. iv. For opinion of counsel on the validity of the Nicolls patent and the Indian deeds see Paris Papers, X 97. This dispute had been before the Council earlier, in the appeal of Jones v. Fullerton from the Court of Common Right in East N e w Jersey. In this cause the rights of the recognized proprietors were challenged by settlers holding land under a 1664 patent from Colonel Nicolls, who, acting for the D u k e of York, the royal patentee, had overthrown Dutch rule in N e w Netherland. T h e merits of the claims are set out at length by Ed sail, Journal of the Court of Common Right, 96— 101, 109-112. T o enforce their rights, the East New Jersey proprietors, in October, 1693, brought an action of ejectment in the name of James Fullerton against one Jeffry Jones, a Nicolls patentee (ibid., 246-47). T h e official version of the 1694-95 held at Perth Amboy records that judgment was given for the plaintiff upon argument of a demurrer (ibid., 256-57, 263, 274). Later unofficial

versions of the trial alleged that a jury verdict was returned for defendant Jones, but that the judges, partial to the proprietary interests, gave judgment for plaintiff Fullerton. In a petition of the inhabitants of Elizabethtown to the K i n g it was related that the action "came on to be tried, and altho upon a full evidence, the jury ( w h o were chosen by the said proprietors, or their creatures) were notwithstanding so just as to give a verdict for the said Jones; yet the said pretended Judges being either of the number of the said proprietors or by them appointed, were so partial and arbitrary, as contrary to law and justice, to give a judgment against the said Jones, and for the said pretended Proprietors; which unjust judgment, your Majesty upon appeal hath in your princely justice been pleased to reverse, altho the said pretended judges, in hopes to support their said judgment, did transmit a writing for a copy of the proceedings in the said cause, which was false, and not according to the truth of the proceedings had in the cause" (2 Doc. Rei. Col. Hist. N./., 127-28; Learning and Spicer, Grants, Concessions . . . of New Jersey, 690). In the 1695 instructions of the proprietors to Thomas Gordon, an agent bound for England, mention is made of a verdict of a jury who were all parties and

T H E SCOPE OF A P P E L L A T E R E V I E W

367

local courts failed to conclude the dispute, since the judgments rendered were conflicting.67 But when in the early 1740's judgments uniformly favored the proprietary interests, no appeals to the King in Council were taken.*8 Instead, contributed to fee defendant counsel, William Nicoli (2 Doc. Rei Col. Hist. N.J., 107-8). In a 1700 proprietary answer to a remonstrance of the province inhabitants it was declared that in the action against Jones "the jury being all planters gave a generali verdict against the proprietors contrary to the direction of the court and the consent of the councill on both sides, who had agreed upon a speciali verdict" {ibid.. 348). A 1749 letter from Richard Partridge, colonial agent, mentioned finding "diverse old writings at the Council office" relating to this cause. Partridge stated that the cause "was, after a fair tryall, given by the jury in favour of Jones the defendant, by bringing in a general verdict; but the court, as they had directed the jury to bring in their verdict special, leaving the point of law to the judges, would not accept of the verdict; and upon a pretty deal of deliberation (notwithstanding the verdict of the jury) gave judgement for Fullerton, the plaintiff with costs of suit" (7 Doc. Rei. Col. Hist. N.I., 268-69). See also Hatfield, History of Elizabeth, New Jersey, 241-42. Cf. the allegation in the Bill in the Chancery of New Jersey, at the Suit of John Earl of Stair, and Others, Proprietors of the Eastern Division of New Jersey, against Benjamin Bond, and some Other Persons of Elizabeth-Town (1747), 120, as to the cause of reversing the judgment against Jones, "that the special verdict agreed upon, and on which probably the judgment was given, was not found by any jury; on the contrary, the jury to whom it was referred, gave a general verdict for Jones." For a discussion of the conflicting versions of the trial see Edsall, op. cit., 99-100. At any rate, an appeal to the King in Council was moved for and allowed under the usual statutory conditions (Edsall, op. cit., 274). Cf. the relation of Richard Partridge that upon judgment "the defendant appealed to the King in Council; which was not granted by the court; but on his petition here [London], it was allowed him" (7 Doc. Rei. Col. Hist. N.J., 269). There is no evidence of such application in the Privy Council register. The petition and appeal presented to the King in Council in September, 1696, was referred to the Board of Trade (PC 2/76/520). This body took no action thereon apart from

referring the petition to the proprietor! to answer. See CSP, Col., 16Ç6-97, # 1 8 5 , 342, 349. On February 4, 1696/7, the petition and appeal was read at a Committee meeting and February 23 appointed for hearing the appeal. The Committee (present were the Earl of Bridgewater, the Earl of Stamford, and Sir William Trumbull) also ordered that all persons concerned should attend and desired that Chief Justice Holt be present for the hearing (PC 2/76/578). It was apparently felt that legal knowledge was desirable upon hearing the appeal. The conciliar chronology of Edsall erroneously states that the appeal was heard on February 10 (op. cit., 101). After hearing counsel for both appellant and the proprietors of East New Jersey the Committee agreed to recommend reversal of the May 16, 1695, judgment of the Court of Common Right (PC The Committee (wrongly termed a "sub-committee of the Council" by Edsall, op. cit., 100) was composed of Chief Justice Holt, Sir Henry Goodricke, and Sir Joseph Williamson. This Committee report was thereupon embodied in an Order in Council (PC 2/76/586); the grounds of the reversal, not being set forth, were later the subject of dispute. See Tanner, The Province of New Jersey, 1664-1738, 77. William Nicoli made an affidavit in 1707 that the legality of the Elizabethtown patent was the sole dispute at the Council hearing (An Answer to a Bill in the Chancery of New Jersey, at the Suit of John, Ear! of Stair, and Others, Commonly Called Proprietors of the Eastern Division of New Jersey, against Benjamin Bond and Others, Claiming under the Original Proprietors and Associates, of Elizabeth-Town [1752], 31). The proprietors asserted that the reversal had not been upon the merits but for some procedural error (Bill Chanc. N.J., 44). This conciliar judgment did much to encourage the opposition to proprietary land claims which featured the colonial history of New Jersey and more immediately led to the reuniting of the New Jersey provinces in the crown in 1702. See Edsall, op. cit., 101; Fisher, op. cit., 180-81; Tanner, op. cit., 77. 07 Bill Chanc. N.J., 46-49. 68 Ibid., 50-51, 69; 6 Doc. Rei. Col. Hist. N.J., 355-

3 68

T H E SCOPE OF A P P E L L A T E REVIEW

the claimants in possession petitioned the King in Council in 1744, alleging judicial and jury partisanship. It was therefore prayed that the dispute be heard as res integra and determined by the King in Council, or by commissioners and jury from neighboring colonies, or by royal commissioners alone.09 When this petition disappeared into the administrative maw of Whitehall, 70 the parties agreed, in 1746, to have the whole controversy decided by one selected ejectment action in the N e w Jersey Supreme Court. In this case a special verdict was to be agreed upon and consensually found, so that the merits of the controversy could be finally determined at the Council Board on appeal from the Governor and Council. 71 Earlier it had been urged by proprietary counsel that a chancery suit was more adapted to reveal the "equity" of the freeholders' cause, since an appeal with all the evidence in writing lay in such case.72 The proprietors had already, in April, 1745, sued in equity in the cause,73 but this urging may also have been calculated to avoid a general verdict in an action at law, 74 or to bar an appeal.75 However, the representative suit failed to materialize, for reasons that are disputed.70 Commencing with 1745, judicial enforcement of the proprietary claims was nullified by riots, while the anti-proprietary disposition of the assembly hindered preventive and punitive legislative action.77 In 1748, with local settlement obviously impossible of attainment, royal intervention was petitioned for ββ

Ibid., 206-15. Compare ibid., 3 3 2 - 3 3 , as to the allegation of judicial bias, and ibid., 345-46, on the freedom of appeal. 70 3 APC, Col, # 5 9 6 . The Board of Trade postponed consideration until application by petitioners (fCTP, 1741/2-49, 129). " 6 Doc. Rei. Col. Hist. N./., 349-50, 3 5 6 59. Cf. ibid., 293-94, 3 1 6 , wherein it appears that the proprietors at first rejected the proposition. Some question arose whether a special verdict or a bill of exceptions should be employed. David Ogden, counsel for the proprietors, stated that it was "advised that the removing a cause before his Majesty in Council on a bill of exceptions to the evidence may so happen as not to bring the merits of the cause before His Majesty in Council." ("Draft of Proposalls to the Rioters" [n.d.], Morris MSS [Rutgers Univ. Lib.]). Ogden was also advised that there was doubt whether the plaintiff in an action of trespass and ejectment could demur to defendant's title given in evidence on trial so as to take the like advantage of a defect therein as if a special verdict were given in the cause. 72 Statement of Council of Proprietors of Eastern Division of New Jersey, March 25, 1746, 8-9 (CO 5/974/F 82).

73 For the reasons advanced for exercise of equitable jurisdiction, see Bill Chañe. N.¡.. 69-74. 71 See the appraisal of the offer to come to trial by the Board of Trade (7 Doc. Rei. Col. Hist. N.¡„ 507-8). 76 See supra, pp. 237-39. 76 The ostensible reason for the withdrawal of the freeholders was proprietary monopoly of counsel (6 Doc. Rei. Col. Hist. N.J., 365-67, 392-97). But compare the assembly version of the matter (7 ibid., 3 5 2 - 5 3 , 463) and the proprietary version (Paris Papers, X 2 1 ; ibid., V 29, 36). The Board of Trade later accepted the proprietary version (7 Doc. Rei. Col. Hist. N.J., 527). For further presentation of the freeholders' view see An Answer to the Council of Proprietors' Two Publications ; sett forth at Perth-Amboy the 25th of March, ¡746, and the 25th of March 1747 ( 1 7 4 7 ) , 12 (NYPL). 77 6 Doc. Rei. Col. Hist. N.f., 3 9 7 - 4 1 8 , 4202 1 , 426-27, 440-41, 463-64; 7 ibid.. 111—12, 1 6 1 - 6 2 , 197-98, 207-26, 276-88. Belcher, upon his arrival, futilely dwelt upon the attributes of conciliar appellate jurisdiction for settlement of die disputes (ibid., 69). Cf. ibid., 84.

T H E SCOPE OF A P P E L L A T E R E V I E W

369

by the colony council and the proprietors.78 With Governor Belcher affirming this need 7 9 and the "freeholders" petitioning defensively, 80 the Board of Trade in 1750 recommended drastic remedial action in the form of military intervention or reunion with New York. 8 1 T h e Committee, however, not to be impelled into extreme measures, merely ordered the crown law officers to consider proper methods of inquiry into the N e w Jersey grievances and to draft a commission thereto.82 Ryder and Murray reported in August, 1751, that the only grievance alleged was an apprehension of injustice upon trial of ejectment actions brought by the proprietors against the "freeholders" in possession; that the "freeholders" only desired that the matter might come fairly before the King in Council for impartial determination. Since by general verdicts the merits might be prevented from coming before the Council upon appeal, it was submitted whether it might not be proper to instruct the governor to recommend to the judges upon such ejectment trials to have all the evidence found in the nature of a special verdict. By this means the whole cause might come fully and fairly before the King in Council upon appeal, at which time every circumstance of title, possession, and improvement would be taken into consideration and a solemn determination had in such manner could be a rule for all similar cases.83 N o such instruction ever issued, although the Board of Trade submitted the proposal as "prudent and effectual." 84 The crown law officers also prepared, as directed, a commission of inquiry, but the Board of Trade having declared its issuance to be of little utility, it never passed the Great Seal. 8 ® With a decline of the riotous spirit and a diversion of public energies, no further conciliar intervention was meditated.80 The opinion expressed by the crown law officers is interesting chiefly because no better way of meeting the dilemma respecting an inadequate record could 78

ibid., 189-97. ι* Ibid., 249-51, 290-92. Cf. the colony council's opinion on the conduct of Belcher {ibid., 251-59) and that of the Board of Trade (ibid., 260-61). 80 Petitioners asserted that the right of appeal to the King in Council was rendered nugatory by petitioners' poverty in the face of multiplicity of suits (4 APC, Col., # 1 0 3 ) . " 7 Doc. Rei. Col. Hist. N.f., 466, 522. For the proceedings before the Board of Trade see ibid., 295, 3 0 1 - 5 , 310, 3 1 2 - 1 6 ; ]CTP, ¡74¡! 2-49, 4t6, 421-22, 434, 441, 443. Yet in June, 1749, agent Richard Partridge was still urging fair trials in a few cases with appeals to the King in Council thereon (7 Doc. Rei. Col. Hist. N.I., 270).

82

4 APC, Col., # 1 0 3 . Cf. the prediction of agent Paris as to the action which would be taken (7 Doc. Rei. Col. Hist. N.J., 234-35). 83 8 ibid. (Part I), 56-57. We have seen above the initial views of Murray as to judicial proceedings in the colony, supra, p. 365. 84 Ibid., 92. 85 Ibid., 58-59, 91. For a copy of the draft commission see Paris Papers, X 1 1 7 . An instruction relating to the issuance of such commission was, however, dispatched to Governor Belcher (1 Labaree, Royal Instructions, #499)· 80 Fisher, op. cit., 204-9.

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T H E S C O P E OF A P P E L L A T E R E V I E W

be found than an instruction whereby the governor would recommend to the local judge that a special verdict be rendered. In cases judicially before the Council, a direction for a special verdict when the case went down for a new trial was envisaged as a proper addition to the judgment, but the New Jersey situation not being a judicial proceeding before the Committee, counsel obviously saw no better way around the established common law limitation on the power of a judge to direct a special verdict than a recommendation that the judge exceed his authority. The notions of Mansfield appear to have undergone considerable alteration during the next decade, for after he became Chief Justice and was active as a member of the Council, he expressed judicially views which went much further than his opinions as counsel. This opinion is to be found in the notes taken by Jared Ingersoll at the hearing of the New Hampshire appeal of Dering v. Packer at the Cockpit in July, 1760, to the effect that in all appeals from determinations in the plantations the court from which the appeal comes ought to certify the whole matter as it lay before the court, and if judgment was founded upon a general verdict the court ought to state and certify the whole evidence as well the parole as any other, and that the Lords of Appeal had dismissed an appeal because that had not been done. Ingersoll commented that "this might be difficult to be done when the judges make no minutes; here the practise is for the judge to take minutes of the substance of all evidence as the same is delivered into the court and jury." 87 He made no reference to the usual New England practice of taking all the evidence in writing. But New Hampshire practice may have been veering toward orthodoxy, for respondent in this appeal asserted that the judgment below was in the nature of a general verdict, being founded chiefly in viva voce evidence, and could not be reversed by the Privy Council.88 As the law of England then stood, it is apparent that the certification of matter dehors the record was improper. It is true that the writ of error in the form used temp. George II commands the certification of "the record and process of plaint aforesaid with all things concerning them," but these last words were not understood to embrace matter other than the bill of exceptions. Mansfield, however, was a person of broad and ranging mind who, in other particulars, demonstrated his impatience with the bondage in which his present was held by medieval conceptions. He seems, moreover, to have entertained a 87

Ingersoll Papers, 242. For the printed "cases" of the panics, sec Add. MS, 3 6 , 2 1 8 / 44-48.

88

Case of Respondent (Add. MS, 36,218/46).

T H E SCOPE OF A P P E L L A T E R E V I E W

371

low opinion of the state of technical achievement in the colonies and may well have believed that in an appeal proceeding which was neither flesh nor fowl by existing standards at Westminster Hall an added vagary was of no great moment. W e have seen that even long before Mansfield was called to the bar the Privy Council had sought to achieve the very end suggested in Dering

v.

Packer.

Furthermore, when Mansfield was still Solicitor General a cause came before the Council where the court below on its own motion had appended matter to the record that was intended to enlarge the same. In Degge

v. Kay respondent

alleged that the amount sued for in the Virginia General Court was under the instructional minimum and that therefore no special verdict had been sought. Consequently, upon a general verdict with a reserved question of law, the court gave respondent judgment for ¿ ψ sterling and costs and denied appellant an appeal on the basis of the royal instructions. Appellant then petitioned the Council and was admitted to an appeal in October, 1751, allegedly upon representation that the action concerned a right of freehold. 89 W h e n the General Court transmitted the proceedings in the cause, it annexed a representation designed to overcome the lack of a special verdict. T h e question involved was whether the "reception" of a minister by a vestry under a 1727 act, enabled such minister without induction to maintain an action for trespass committed on glebe lands by persons acting under vestry order. T h e General Court represented that custom did not require "induction" to maintain such suit, despite the express words of a March, 1661/2, statute. Furthermore, it was represented that the refusal of an appeal was according to royal instruction and that it was thought such instruction was "calculated and formed, for the ease and happiness of his Majesty's subjects in the colonies, that they might not be harassed, impoverished, and ruined, by potent litigious, and unjust adversaries, where the sums might be too trifling or minute for his Majesty's consideration." T h e Court went on to state that it had invariably considered the instruction as including all appeals, as well where freehold was concerned as personal suits, and that in the former it had been its constant practice to appoint proper persons to value the land in dispute where either party demanded an appeal. It was hoped that the lack of a special verdict was supplied by the court's representation, which was the only method left to inform the Privy Council of the facts proved on the trial. 90 Whether this annexed »"Case of Respondent (L.C., Law Div.). For the conciliar proceedings on the application for leave to appeal see PC 2/102/210, 241, 334. 353· 90 Case of Respondent (L.C., Law Div.). Compare Case of Appellant (ibid.). For the

two acts in question see 2 Hening, Stat, at Large Va., 46; 4 ibid., 204. Four judges (John Blair, William Nelson, William Dawson, and Thomas Nelson) represented "that notwithstanding the Act of General Assembly made in the year i66t entitled, Ministers to be

372

T H E SCOPE OF A P P E L L A T E

REVIEW

representation was considered by the Committee, we do not k n o w . 9 1 But the fact that "the Lords unanimously affirmed the judgment, rejected the appeal, and gave the respondent ¿ 8 0 costs" in May, 1753, indicates acceptance of the General Court's views. 9 2 Some years later, in H earn v. Webb

(Gapper

and Young),

a 1763 appeal

from a Newfoundland Vice-Admiralty Court sentence, we find another instance of judicial accretion to the record proper. In this case under the Navigation Acts no appeal was taken from the July 28,1760, sentence within the usual fifteen-day period, allegedly because of ignorance of the proper steps for relief. When application was later made for a copy of the record, the judge subjoined to the record his opinion that an appeal ought not to lie, as at the condemnation no appeal was taken, nor within a year following. T h e judge also annexed additional certifications to the record allegedly not taken notice of in the sentence, including a relation of leave given claimant to appeal if he thought proper. 93 It seems probable that this record was procured prior to the conciliar application for leave to appeal, nevertheless, upon such hearing the appeal was admitted. 94 Upon the hearing in chief the appeal was dismissed and the sentence below affirmed. 95 Inducted, there were very f e w ministers regularly inducted into any parish, but the constant usage and practice was that ministers coming into this colony produced to the Lt.-Governor testimonials of their having received ordination from some Bishop in England and subscribed to be conformable to the orders and constitutions of the Church of England and the laws there established. Whereupon the Lt.-Governor and the commissioner of this colony usually recommended such ministers to the vacant parishes and if they were approved of by the vestrys of such parishes an entry was made in the vestry book that such person was received as minister of such parish and therefore the Act of Assembly made in the first year of your Majesty's reign for settling a certain provision of salaries and plebes for the clergy of this colony appointed such provision for ministers then preferred to or who should thereafter be preferred to or received into any parish and made such ministers as w e apprehend liable for dilapidations upon the glebes." It was further represented that agreeable to this law and usage Kav w i s duly qualified as minister, recommended. and received; that the determination in favor of Kay was agreeable to the 1 7 2 7 act which it was conceived waived the necessity of induction and gave the received minister the right to glebes and salaries pro-

vided for them by the act. Record and representation under seal in Fulham Palace MSS, Va., Box 3 , # 5 3 . 91 Solicitor Sharpe informed the Bishop of London in a Dec. 1 4 , 1 7 5 2 , letter that "if the same facts had been found by the jury in a special verdict and made part of the record as are stated in the representation made by the judges to his Majesty in Council and annexed to the record, I should have little doubt of supporting the affirmative side of the question and if the Lords of the Committee will allow us to read that representation I make no great question but we shall be able to support the sentence given in favour of Mr. K a y . But if the Lords should not permit us to read that representation (and which the other side will certainly oppose to the utmost) I am afraid we shall not be able to throw those lights upon the case arising from the particular local usage of that colony (and which usage is not at all stated in the record) as will be necessary to support Mr. Kay's right without induction" ( F u l h a m Palace MSS, Va., Box 2, #129). 92

Endorsed upon Case of Respondent, p. 5 ( L . C . , L a w D i v . ) . Cf. PC 2 / 1 0 3 / 4 1 5 , 422. 93 Case of Appellant (Arid. MS., 3 6 , 2 1 8 / 2 3 6 ; L.C., L a w D i v . ) . 94 PC 2 / 1 0 8 / 5 9 0 ; PC 2 / 1 0 9 / 1 2 0 , 169. 95 PC 2 / 1 1 0 / 1 7 6 , 1 9 3 .

THE SCOPE OF APPELLATE REVIEW

373

THE COUNCIL'S N E W ENGLAND PROBLEM

If in respect to the jurisdictions using strict common law practice the problem at Whitehall was to secure an expansion of the orthodox record sufficient for a judgment on the merits by the Council, the questions which arose relating to the N e w England colony were of a different order. There, by provincial statute and local usage, the record should have been all that the Committee could desire, but as the inhabitants of those regions viewed the conciliar judicial function with distaste, the various efforts to narrow the appellate scope, when there was reason to suspect a case was going to be taken to the Council, compelled that body to be watchful that there was no diminution of the local record.9® For an understanding of the exact nature of the Council's N e w England problem, it is desirable to outline briefly the methods of review that obtained in these parts. In the seventeenth century it had been enacted in Massachusetts (contrary to common law practice) that all evidence was to be given in writing. 9 7 It was upon this foundation that the appellate process for the colony was codified by a 1701 statute. Under this act appellants from the Inferior Courts of Common Pleas to the Superior Court of Judicature filed a declaration with the lower court setting forth their reasons of appeal fourteen days before the sitting of the appellate tribunal. This declaration, sealed by the lower court, was then presented to the appellate body together with attested copies of the original writ, judgment, and all the evidence filed in the inferior court. Both parties to the appeal were allowed "the benefit of any new and further plea and evidence" at the appellate hearing which had the remarkable additional feature that there was a jury trial. 98 Parties aggrieved by the judgment of either inferior or superior court might secure a review in the same court. A t such review, all the evidence on file in the former trial was to be produced by the party bringing the writ of review, with each party having the benefit of any new plea and evidence. 99 In the N e w Hampshire courts the same practice prevailed by virtue of a 1701 enactment adopting the Massachusetts provisions. 100 In Rhode Island similar appellate procedure prevailed on appeal from the Inferior Courts of C o m m o n Pleas to the Superior Court of Judicature. Evidence was in writing, reasons of appeal were filed, evidence submitted below was considered on appeal, and new evidence (not limited to newly discovered evidence) was admissible on either appeal or review, juries being used at both For a sample New England record containing all the evidence see that in McSparran v. Mumford (R.I.) (Fulham Palace MSS, N.H., N.J., N.Y. and R.I. Box. # 1 1 7 ) . 97 Col. Laws Mass. (ed. W . H. Whitmore, 1887), 129. 88 ι Acts and Res. Prov. Mass. Bay, 464. Simi98

lar provisions were contained in earlier disallowed acts; see ibid., 285, 373. 88 ibid., 466. 100 J i j ¡ w s of N.H., 704-5. No regard was had in the province to the 1706 disallowance of this statute.

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T H E SCOPE OF A P P E L L A T E

REVIEW

stages. 1 0 1 In Connecticut the same system prevailed, although with only slight statutory support. 1 0 2 Special verdicts were not u n k n o w n in N e w E n g l a n d ; indeed, several conciliar appeals from Rhode Island were f r o m special verdicts. 1 0 3 But an internal appeal upon a special verdict might be regarded as conflicting with the prevailing use of juries upon such appeals. 1 0 4 In this connection should be remembered the Rhode Island attitude toward appeals in cases of pleas in bar and pleas in abatement. 1 0 5 H o w e v e r , as appears from Vassail v. Fletcher,

a 1754 Massachusetts appeal,

practice might modify somewhat these statutory frames. In this case Fletcher brought an action for defamation in the Inferior Court of C o m m o n Pleas 101 Acts and Laws RJ. (1730), 13 (fees for every evidence read in court), 23, 192, 194. 102 See Acts and Laws Col. Conn. (1702), 3, 2 3. 36 (fees for filing and for copies of testimony in Superior Court) ; Acts and Laws Conn. (1729), 169. The records of the Court of Assistants or Superior Court preserved at the Connecticut Sute Library reveal the practice clearly. 103 Torrey v. Mumford (MS RJ. Sup. Ct. ]ud. Judgment Book., 1725-41, 433, 443); Coggeshall v. Coggeshall (ibid., 588-89); Potter v. Brayton (ibid., 1741-46, 274-75); Mawny v. Willcox (ibid., 325); Babcock v. Pitkin (ibid., 1754-72, 3); Easton v. Howland (ibid., 4). 104 In February, 1770, John Randal, in a petition to the General Assembly, set forth that in an action of trover and conversion against Matthew Robinson the jury at the August, 1769, term of the Inferior Court of Common Pleas returned a special verdict; that upon this verdict the court gave judgment for the plaintiff for $80 and costs of suit taxed at ¿ 2 / 1 5 / - . Both parties appealed to the Superior Court of October, 1769, where petitioner expected the cause to be submitted to his peers with such new and fresh evidence as he might procure, but that court upon defendant's motion ordered the special verdict given below to be argued. Thus petitioner was precluded from a trial by his peers on the original pleadings, "although your petitioner strongly remonstrated against the same as unconstitutional, contrary to law and the undoubted right of every English subject." Petitioner conceived that the judgment was "the first of its kind ever known and heard of in the colony of Rhode Island or in any part of the British dominions where appeals are allowed and had. That depriving this subject of a tryal by his peers is subversive of the

rights of Englishmen, dearer to Englishmen than life, and which history, and even our own times in this day of struggle for American liberty has given sufficient and ample demonstrations of, no one will deny." Petitioner prayed vacation of the Superior Court judgment and trial of the cause at the next Superior Court upon the issue joined in the Inferior Court with such new evidence as might be produced, and that execution be stayed. The petition was accordingly granted (MS Petitions to RJ. General Assembly, 1768-70, # 1 4 6 ) . Following the Assembly action a trial was had at the Superior Court in April, 1771, where a verdict for plaintiff Randal of £ 3 8 lawful money and costs was given. Defendant moved the court that no judgment be had on the verdict, but that a new trial be awarded, since the jury had greatly mistaken and misconceived the law operative in consequence of the facts appearing and agreed to in the cause. The court set aside the verdict and granted a new trial. Randal, in another petition to the Assembly, complained of this as very prejudicial to him, since juries were most certainly judges of both law and fact. Further, every verdict given by a jury contrary to the mind or opinion of the court might be set aside which would annihilate every idea of the benefit of trial by jury. At any rate, upon motion of defendant for judgment on the special verdict, further jury trial was refused. Petitioner's counsel refusing to argue the special verdict, judgment was given for defendant. Upon this petition a new jury trial in the Superior Court was granted (ibid., 1772-75, #50). See also the reasons of appeal in Hedges v. Dyer (MS RJ. Law Cases, 1736. # 2 5 ) . 103 See supra, p. 161.

T H E SCOPE OF A P P E L L A T E R E V I E W in January, 1752, and as he failed to produce any evidence, judgment was given for defendant Vassall. Upon appeal to the Superior Court of Judicature in February, the judgment was affirmed, Fletcher again failing to produce any evidence. Then, upon a writ of review, authorized by a provincial act (13. William III, c. 16) Fletcher to appellant's surprise introduced many witnesses, depositions, and affidavits and was given judgment for ¿2,οοο. 10β Upon appeal to the King in Council, appellant claimed perversion of the writ of review, that such writ was chiefly intended for the relief of a defendant surprised at a former trial. The evidence brought in upon review in the instant case should have been presented in the inferior courts, as the Superior Court jurisdiction was appellate in nature and not original. 107 Respondent counterclaimed that it was customary in important causes to reserve the examination of witnesses to the review stage in order to save the trouble and expense attendant upon examination of witnesses in each court. 108 When the cause was argued before the Committee, "the majority of the Lords were of opinion the respondent was not at liberty to enter into evidence in the court of review when he had deserted his cause by making no proof in the inferior and superior court." The merits of the defamation were not entered into, although three Councilors favored such entrance.109 Therefore, it was advised that the judgment on review be reversed, that the ¿2,000 be restored with interest, and that respondent be at liberty to bring a new action, in which appellant was not to plead the former judgments nor the statute of limitations. 110 Such was accordingly ordered. 111 The appeal being the common course in New England, the Bay colony, for reasons unknown, supplemented the usual domestic appeal procedure by providing also for writs of error. 112 Writs of error, however, were seldom employed, probably because of the difficulty of reconciling orthodox writ of error 108 Case of Appellant (L.C., Law Div. and Add. MS, 3 6 , 2 1 7 / 4 4 ) ; PC 2 / 1 0 3 / 5 0 6 - 7 . Some estimate of the amount of evidence introduced by Fletcher upon review is obtainable from the pamphlet printed by Fletcher jetting forth what is essentially the record in the case (Add. MS, 36,217/49-69). 107 Case of Appellant (L.C., Law Div. and Add. MS, 3 6 , 2 1 7 / 4 4 ) . 108 Case of Respondent (L.C., Law Div. and Add. MS, 3 6 , 2 1 7 / 4 7 ) . 109 Endorsed upon Case of Respondent, p. 3 (L.C., Law Div.). The majority comprised the Lord President, the Duke of Queensberry, Lord Berkeley, Lord Sandys, Sir Thomas Robinson. Contra for going into the merits were Willes, C. f., George Dodington, Sir

George Lee. Sir John Rushout was doubtful. This endorsement is at variance with the entry in the Privy Council Register, where Robinson and Berkeley are not noted as present, while the Bishop of Sodor and Man is so listed (PC 2 / 1 0 4 / 2 5 ) . "o PC 2 / 1 0 4 / 2 5 - 2 8 . 111 PC 2 / 1 0 4 / 3 2 . An appeal was also entered in the defamation action of Knowlei ». Douglass (PC 2 / 1 0 2 / 7 8 ) , but not prosecuted. For discussion of this cause see Noble, Notes on the Libel Suit of Knowles v. Douglass in the Superior Court of Judicature, 3 Pub. Col. Soc. Mass., 2x3-39. 112 I Acts and Res. Prof. Mass. Bay, 73, 284, .572-73·

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T H E SCOPE O F A P P E L L A T E R E V I E W

procedure with the use of juries in the appellate courts. In Catlyn v. Baldwin, before the Superior Court of Judicature in October, 1693, by writ of error, the parties agreed to have "an hearing of the originali cause at this court." The writ of error, declaration, and papers in the case being read and committed to the jury, a verdict was found for the plaintiff." 3 Yet in another case, Goreham v. Blagrove, in September, 1698, the Superior Court found no error and affirmed the judgment below without sending the case to a jury. 1 1 4 In December, 1698, it was submitted to the legislature whether trials upon writs of error ought to be by jury. In the lower house it was resolved netnine contradicente that there ought to be a jury in such cases, but in the Council it was resolved that trials upon writs of error ought not to be by jury. 1 1 5 Nevertheless, in Morey v. Wing, in March, 1700, upon writ of error the record, assignment of errors, and rejoinder thereto were submitted to a jury which found for the defendants. 11 ® In the years following, no use appears to have been made of writs of error. Despite the use of juries on appeals the Massachusetts judiciary regarded appeals as "of the nature of writs of error." This is clearly demonstrated in a September, 1703, opinion of the Superior Court of Judicature rendered to resolve doubts attending appellate proceedings upon nonsuits and abatements. 117 The judges, in their opinion that in the case of reversal upon appeal from a nonsuit or abatement the defendant should make an issuable plea and the cause proceed to trial in the Superior Court, relied heavily upon Coke's explanation of Magna Carta, c. 11. Since Coke was concerned with writs of error, the judges stated that appeals were accounted to be of the nature of writs of error. This was manifest from the form of reason of appeal, and from the answers thereto habitually employed by counsel and allowed by the bench. Furthermore, the General Court, in 1649, had ordered that appeals were to be accounted in the nature of writs of error. 1 1 8 We have already spoken of Shirley's allegation that the courts of Massachusetts disputed the right of the King to hear appeals in real actions and therefore would not oblige parties to give their evidence in writing, so that for want thereof the King in Council might be at a loss to proceed upon hearing appeals. 119 In order to give judgment on the merits, evidence wrongfully ex113

MS Mass. Sup.

'692-95. 77·

Ct. Jud.

Judgment

Book.,

117

114

118

115

119

Ibid., 1686-1700, 197. 40 MS Mass. Archives (Judicial, 16831724), 539· 118 MS Mass. Sup. Ct. Jud. Judgment Book., 1686-1700, 298. For the writ of error and assignment of errors see Suffolk County Court Files, # 4 6 0 4 .

See 40 MS Mass. Archives

1724),

754-55-

(Judicial,

1683-

Ibid., 7 7 7 - 7 9 . This statement is contained in Shirley's general heads of a plan of a civil government proposed for Nova Scotia, February, 1748/9. It was proposed that appeals to the King in Council be allowed in all actions, whether real, personal, or mixed, which exceeded the

T H E SCOPE OF A P P E L L A T E R E V I E W

377

eluded below would have to be made part of the record by a bill of exceptions. But in a Massachusetts appeal it was alleged that bills of exceptions were not admissible or at least had not been introduced into any of the courts of the province. 120 The significance of this omission in Massachusetts practice is obvious. The appeal record in spite of its dimensions, containing as it did the testimony actually admitted, was defective for review purposes, since the incidents most prejudicial to a litigant—his rejected proofs—were not included, and in the absence of exceptions there was no way the rulings could be adequately considered. Some debate on the question whether the Privy Council could enter into the merits of a New England appeal is found. This occurred in the 1754 Massachusetts appeal of Vassail v. Fletcher, the previously mentioned action for defamation in which one ground of error was the award of excessive damages. 121 The appellant maintained before the Committee that the Lords had a right to go into the evidence and to reverse the Superior Court judgment. But respondent argued that the Lords could not go into the merits of the cause, but only into error appearing on the record. If encouragement were given to such appeals, the Committee would be greatly occupied "upon disputes and quarrels bred in these warm climates under your jurisdiction . . ." 1 2 2 Counsel was either unaware of the fact that a different type of record prevailed in the "warm climates," or he was lamentably misinformed regarding the nature of seasonal change in New England. Judgment below was reversed upon procedural grounds, 123 although Chief Justice Willes, George Dodington, and Sir George Lee favored entering into the merits of the cause.124 We also find Richard Jackson, Connecticut agent, voicing his disapproval of trials which excluded juries and stating that he "often wished that the practice of bringing hither by appeal causes that have been tried by a jury in other parts of New England, whereby verdicts are often set aside, was altered." 1 2 8 It is apparent from the Council's handling of the New England cases, that, value of ¿ 300 sterling; that "in all cases upon either parties desiring, that the evidences may be taken in writing, in order to be produced upon the hearing of an appeal before His Majesty in Council; the court where any case is last tryed shall order the same accordingly" (CO 5/886/GG 21, # 1 0 ) . 120 Jeffries v. Donnei!, Case of Appellant, p. 7 (Col. Univ. Law Lib.). 121 For the conciliar "cases" see Add. MS 36,217/44-48; L.C., Law Div. See also supra, PP· 374-75·

122

Add. MS. 36,217/73, 80. PC 2/104/25, 32. 124 Endorsed on Case of Respondent, p. 3 (L.C., Law Div.). 125 Pitkin Papers, 19 Conn. Hist. Soc. Coll., 69-70. Cf. the proposition of Jackson that in case the Mohegan Indians cause seemed likely to go against the colony, he would propose trial of every freeholder's rights by a jury drawn by the Privy Council, even one from an adjoining colony (ibid., 76). 123

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however much the provincial men of God might seek to bemuddle things by pretending their appeal was a writ of error or by deliberately fabricating an attenuated record, the conditions which they themselves had laid down were to be fulfilled. This is apparent from the judgment in Wharton v. Northrup and from Vassail v. Fletcher. THE CHANCERY APPEAL

Up to this point we have had under consideration largely the attempted expansion by the Council of the common law error jurisdiction, but it is essential likewise to observe how the role of a court of appeal in chancery causes was played and what this may have contributed to the attempted definition of the appellate function in general. At the outset it should be noticed that the very term for review by the Privy Council was derived from ecclesiastical and chancery jurisprudence and that notwithstanding the directional force of Channel Islands precedents, the use of the word "appeal" was likely to promote resort to methods of equity. Some of the evidence just discussed with respect to certification of facts is itself proof that this took place. The appeal in chancery causes furnished an opportunity par excellence for the broadest exercise of review powers and the development of policy respecting judgment on the merits. One of the most interesting of these cases, for it serves to illustrate how the chancery procedure was extended to embrace interstitial common law practice, is Mendez v. Battyn, a 1722 appeal from a Barbados chancery decree. Here an issue of fact had been ordered tried below at common law by a jury. A special verdict was then found and returned to the Chancery Court. 1 2 8 It was alleged by appellants that several facts had been found contrary to the evidence in this special verdict. This difficulty was circumvented by annexing to the verdict the evidence presented to the jury, and in this way the Committee had the whole matter before it to judge thereof. 127 Related to this case is the ground for reversal urged on appeal in 1764 from some Jamaica chancery proceedings in McKenzie v. Woodhouse,128 namely, that the Master in Chancery had heard witnesses viva voce 126 Case of Appellant (Add. MS, 36,216/8). See also 2 APC, Col., # 1 2 0 3 . 127 Appellant set forth in his conciliar "case" that the special verdict was found and returned to Chancery, "but in a most irregular manner and several facts found directly contrary to the evidence, and without a tittle of evidence to support them. However, the jurors take notice in their verdict, 'That they have annexed thereto certain papers containing the evidence given them by ten persons therein named; who they say were all the living

persons produced to them.' And they have also annexed all the papers and writings given in evidence to them; so that the whole evidence being all returned under seal annexed to the verdict the Lords of the Committee have the whole matter before them to judge." At the hearing before the Privy Council the decree of September 2, 1 7 1 9 , was reversed "on the point of want of equity" and the bill ordered dismissed (Add. MS, 36,216/8). 128 For the course of the appeal see 4 APC, Col., # 4 0 8 .

T H E SCOPE OF A P P E L L A T E REVIEW and returned none of the evidence, so that the King in Council was precluded from judging of the propriety of a decree made upon evidence not transmitted or appearing in the cause. 129 T o this charge respondent replied that the Master's report was not founded on viva voce examinations, but upon depositions, and that to annex all such proofs to the Master's report would introduce a cumbersome and expensive practice. 130 However, upon hearing, the Committee advised reversal, that the cause be referred back to the Master to pursue certain May, 1756, directions of the Court of Chancery, and that depositions be reduced to writing that they might be used as evidence in case of any future appeal. 131 PROCEDURAL ERROR

These two cases exemplify the insistence of the Council on the fullest possible record and a determination that this condition should not be evaded. Even more interesting is the group of appeals where procedural errors below were involved—the "technicalities" bemoaned by bewildered lay historians.138 Here the development of an attitude on the part of the Council that as a court with unlimited equity powers the mistakes of rustic tribunals could fairly be condoned or overlooked spreads out even from chancery cases to common law actions. Of course, the colonists (when it was to their advantage) were particularly quick to argue the desirability of overlooking the shortcomings of judicial procedure in the wilds. As early as 1700 William Penn had sought of the Board of Trade that in hearing appeals the Committee make allowance "secundum aequum and bonum" and not judge according to the strictness of the laws of England, for in their infancy and ignorance the colonies did not have the benefit of able lawyers in commercial and real transactions.133 Years elapse before we find consistent statements of the adoption of such liberal standards by the Committee. In Bontein v. Trelawney, a 1753 appeal from the Jamaica Chancery Court, the Committee affirmed an order overruling the demurrer of the appellant and ordering him to answer. 134 Counsel Charles 1 2 9 It was alleged that if the evidence had been returned for the j u d g m e n t of the K i n g , it w o u l d have appeared that there was no evidence to support the report (Add. MS, 36.219/110). 1 3 0 This appears in the f o l l o w i n g c o m m e n t written upon appellant's printed " c a s e " (Add. MS, 3 6 , 2 1 9 / 1 1 2 ) . " T h e Master does not say that he founded his report on examination viva voce and the appellant's first and fourth exceptions show quite the reverse, that there were depositions taìcen before h i m and objects only because he had not annexed them to his report w h i c h it certainly w a s not the

Master's business to do and if it was once to be ordered by the K i n g in Council it w o u l d be introducing a fine practice and expense to the parties—to have the report extended to an immoderate length by annexing all the proofs in the Master's office to be filed with the report in the Register or Secretary's Office." PC 2 / 1 1 0 / 5 6 8 , 593. See Washburne, Imperial ministration of Justice, 72-73, 133 CSP, Col., 1700. # 9 8 4 .

131

132

134

PC

2/103/546.

Control 0/ 129, 149.

Ad-

38O

THE SCOPE OF APPELLATE REVIEW

Yorkc noted that "Lord Chief Justice Willes said reasonings and argument for the appellant were all right and just but it was a safe decree to overrule demurrer," 1 3 5 obviously because the learned justice was not at all certain the provincial Chancery was capable of weighing reasons of law. In 1757, in the Virginia appeal of Dunbar v. Curtis, however, the appellants, with a hypocritical disregard of the highly developed technical practice in that province, considered it unnecessary that an executor be a party "in countries where the nicety of legal forms is not so well understood, nor the want of it, where not essential to the merits, ever held as an objection here, upon appeals from the plantations." 1 3 6 To this argument the Council turned a deaf ear, for judgment below was reversed for want of parties, with plaintiffs at liberty to amend their bill by adding proper parties. 137 In Arcedeckjie v. Hall, a 1758 Jamaica appeal, appellant prayed that if respondent attempted to avail himself of the exact forms of pleading in Westminster Hall it's hoped such an attempt will not succeed, in the present case, where strict forms arc set up against essential justice; considering that, in the plantations, it is not possible to have such able assistance, as may be had here; and indeed, were the forms here, required to be strictly observed in the plantations, their proceedings would constantly be reversed, and a just creditor would never be able to recover his debt; for which reason, it has been often observed, that the solid right and justice of the case has, always, been endeavored to be got at, on appeals from the plantations.138

However, judgment was affirmed and the appeal dismissed.138 In 1765 we find an appeal taken from the overruling of a demurrer by the Jamaica Chancery Court in Bayly v. Ord. Here the respondent advanced that appeals from the plantations should not be tolerated on demurrers on point of form. 140 The Committee upon the hearing appeared to agree with respondent's contention, for the appeal was dismissed with £60 sterling costs. 141 During the same year the appeal of Bayly v. Attorney General of Jamaica came before the Council, and respondent argued that appellant's objections in point of form "can have little weight here, and it is well known that strict forms of proceedings are not to be met with from the plantations and appeals from thence on such grounds are never countenanced, especially after a trial and a verdict given against the appellant on the merits." 1 4 2 The Privy Council 135 Endorsement on Case of Appellant {Add. MS, 3 6 , 2 1 7 / 2 5 - 2 6 ) . 138 Case of Appellant, p. 6 (L.C., Law Div.). ™ PC 2/105/534, 540. 138 C a s e of Appellant, p. 3. (L.C., Law Div.). 13 » PC 2/106/28, 39. 140 Case of Respondent (Add. MS, 3 6 , 2 1 9 / 251).

141

PC 2/111/287, 304. Case of Respondent (Add. MS., 3 6 , 2 1 9 / 259). The objections in point of form were (a) no venue laid in the declaration; (b) no venire awarded for several court days after issue was joined until the trial came to be had; (c) no continuance of the issue until that time. 142

T H E SCOPE OF A P P E L L A T E REVIEW

381

sustained the contentions by affirming the judgment below and dismissing the appeal. 143 On the same day that these appeals were heard, July 17,1765, Lord Mansfield made a significant pronouncement of conciliar policy, which fully supported the previous contentions of conciliar parties. In discussing Becl(jord v. Jea¡(e, a Jamaica appeal, Mansfield declared that it was a rule at that Board to pay no regard to questions arising from want of form; that if this action of ejectment had been brought in England it had been impossible for any one of the pleadings, except the declaration, to have existed, for that no council here would have advised either the plea, or replication or any one proceeding that followed—That the Lords of Council always took the whole record together and tried to find out the merits from it; if that could not be done they sent it back for further information; that however fatal the respondent's pleadings would be adjudged in Westminster Hall, if such could have appeared there, they ought not to be so treated at that Board especially as it was not difficult to find out the merits of the case.144 In several later cases we find further enunciations of this conciliar liberality. In Hall v. Lain g, a 1768 Jamaican appeal, it was alleged by appellant that "respondent's objection in point of form can have little weight here, it being well known that strict forms of proceedings are not to be met with nor expected from the plantations, nor can such an objection be countenanced after a full and candid disquisition of facts in the place where they arose." 1 4 5 The Committee overruled the procedural objections in reversing the Court of Errors and affirming the Supreme Court judgment. 146 Again, in Levy v. Robertson, a 1771 appeal from Quebec, appellant asserted that "objections of mere form, it is apprehended, have been hitherto little regarded on appeals from proceedings in any of the provinces." The instant appeal was urged as a strong case for leniency, being one of the first causes tried in newly established courts.147 143

PC 2 / 1 1 1 / 2 8 6 , 304. Add. MS, 36,219/199. Another version of Mansfield's statement taken by Robert Walpole, Council clerk, reads thus: "There is not one step that would have happened in England—it is done in Jamaica and encouraged here for good purposes. There are several demurrers and exceptions to the Evidence—for in the Islands (it is otherwise on the Continent) they do not transmit the Evidence. They do not open a general Verdict— When the Writ of Error comes over, regard here is not paid to Objections in point of form—the Constant Rule is to take it altogether and find out the Merits as is stated upon it—-if you cannot you send it back" 144

(WO 1/404/56). The "cases" of the parties are at Add. MS, 36,219/168, 1 7 7 . For the conciliar course of the appeal see PC 2 / 1 1 0 / 509; PC 2 / 1 1 1 / 6 6 , 285, 304. Compare the narrow view of Dickerson (op. at., 278-79) that "the committee in considering an appeal did not pass upon the merits of the case, but only upon the regularity of the procedure in the lower courts." 145 Case of Appellant (Add. MS, 36,220/163). Respondent had successfully interposed on a writ of error to the Governor and Council that the issue had been tried by a Surrey jury rather than by one of Middlesex. 146 PC 2 / 1 1 3 / 2 3 3 , 248. 147 Case of Appellant (Add. MS, 1 5 , 4 9 1 / 1 6 )

382

T H E SCOPE OF A P P E L L A T E REVIEW

Upon hearing, the judgment in error below was reversed and the judgment of the Supreme Court was affirmed. 148 The Committee did not confine itself to merely waiving procedural errors in the courts below, but might on occasion extend its review beyond the confines of orthodox review procedures. The first case found where such action was suggested on the part of a litigant was the Barbados appeal of Clarke and Gosling v. Smith. Appellants, in their brief, alleged that "the judicatures in our plantations neither do nor can proceed in that order and exactness that are observed in England and for this reason the Council Board go frequently farther to rectify mistakes than the Courts of Justice here can do upon writs of error." 1 4 9 This argument was obviously not seriously regarded, for judgment below was affirmed, and the appeal was dismissed. 130 However, in some cases the Committee went so far as to advise setting aside judgments and decrees where admittedly no error was found in the proceedings below. Such procedure is seen in Rogers v. Spalding, an appeal from a 1739 General Court of Virginia judgment, on the ground of erroneous refusal to admit in evidence some affidavits "sworn and transmitted under the seal of the City of London" according to 5 George II, c. 7. In this case appellant was suing in case for ¿ 5 2 4 appropriated by respondent from the estate willed appellant by his brother lately deceased in Africa. Respondent defended that the property was taken in his capacity of Royal African Company agent according to the company rules governing estates of employees. Further, it was contended that 5 George II, c. 7, should be strictly confined so as not to admit evidence otherwise inadmissible, that the proper oath had not been taken, that the instant case was not within the purview of the act (since it did not relate to trade or the plantations), and that no adversarial notice had been given of the taking of the evidence offered. 1 8 1 The Committee reported that the affidavits were not strictly regular, but as the merits of the cause had not been laid be118

PC 2/115/349. 364. Case of Respondent (L.C., Law Div.). 150 PC 2/103/355, 408. Later, in 1780, prevalence of this view of the conciliar appellate scope is also found in Jamaica. In the examination of John Baker concerning the governor's removal of some judges from the Supreme Court for granting a mandamus in Rex v. Brownrigg, the following question was asked: "If the judges or jury did wrong was not a writ of error a more constitutional and a more legal remedy than removing the judges?" Baker replied that he thought it was, "wishing it to be understood that by a writ of error, he means not only what is usually understood by error, but to include that ap149

peal which is open to the subject from all the colonies to the King in Council, and which he thinks is competent in cases where there is no doubt that a writ of error does not lye, but he thinks in case of mandamus generally error does lye" (CO 1 3 7 / 3 8 / 1 3 2 ) . 151 PC 2/95/546; Cases of Appellant and Respondent (Harvard Univ. Law Lib.). In the court below, the bench accepted the argument of defendant's counsel that the affidavits were taken when no suit was pending, that the act only extended to cases where suits were actually depending, and that defendant ought to have notice (Jefferson, Rep's Cases General Ct. Va. [ 1 8 2 9 ] , 58-59).

T H E SCOPE OF A P P E L L A T E R E V I E W

383

fore the court and jury, appellant ought not to be finally concluded by the verdict and judgment appealed from. Therefore, it was advised and ordered that the verdict and judgment be set aside and appellant be at liberty to proceed to another trial on such new evidence as he might produce.1 β ί Other examples of this aspect of conciliar action are found in Dclap v. Lindsey and Ranshin v. Dove, Jamaica chancery appeals. In both these appeals appellants had been guilty of laches in failure to attend Masters in Chancery to whom the causes had been referred. The Committee reported in June, 1761, that the Masters' reports objected to upon appeal were "strictly regular" as a result of the laches of the appellants, and that the chancery orders appealed from were likewise regular. Since it appeared that manifest injustice would be done upon the foot of the report as it then stood, the Committee advised reversal of the respective chancery orders, payment to respondents of all costs incurred since the respective Masters' reports, and reference back to the Masters to review their reports. 153 This advice gained conciliar sanction on July 2, 1761. 1 5 4 We have considered thus far the peripatetic efforts to settle or extend the limits of the Council's jurisdiction over the causes before it under what may be described as the "common form" of the instructions regarding appeals. Owing to a change in these instructions in 1753 that for some time went unchallenged, there was an interval during which the Council possibly did not regard itself restricted as much as by the earlier and later official mandates. Some of the cases just discussed were adjudicated in this interval, but we cannot be certain there is any relation between the changed instructions and the quickened interest in effecting a judgment on the merits at the Council Board. THE INSTRUCTIONS OF 1 7 5 3

The change of 1753, as we have seen, consisted in the fateful use of the words "allow appeals" without the previously qualifying words "in cases of error." The only explanation for the change that we have noticed is one put forward twelve years later, to the effect that it was made to resolve doubts respecting the inclusion of criminal cases.188 There is little doubt that such clarification was the professed end of the revision,186 but such end could be achieved by the inclusion of the words "in all civil causes"—the omission of the words "in 152

PC 1/96/in, 155. PC 2/108/396-407. For the conciliar "cases" in Delap v. Lindsey see Add. MS, 3 6 , 2 1 8 / 1 2 1 - 2 8 ; in Ranshin v. Dove, see ibid., 1 0 5 - 1 2 . Endorsed on appellant's case in the latter appeal is: "Report regularly made on default, but opened on payment of all the 153

costs to prevent manifest injustice and let the appellant in to crave allowances, which seemed just." 154 PC 2/108/425. 155 See infra, p. 409. 15e See supra, p. 232.

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T H E SCOPE O F A P P E L L A T E R E V I E W

eases of error" bore no relation to the attempted reform. Since this omission is first found in an April 7, 1753, opinion of crown law officers Ryder and Murray submitting a draft of revised instructions as to appeals in the case of the Leeward Islands, 157 the question is pertinent whether the omission stemmed from experience as crown law officers or as counsel. It seems wholly possible that what in fact precipitated the omission was a Barbados appeal (Clarke and Gosling v. Smith) that was heard before the Committee in March, 1753, in which Ryder and Murray were counsel for respondent. In this case one William Jenkins confessed judgment to respondent, Richard Smith, by warrant of attorney as security for a debt. But in entering up judgment the clerk of the Court of Common Pleas neglected to insert the name of the party in whose behalf the attorney confessed judgment. Appellants, entering up judgments at a later date, claimed priority because of this defect when Jenkins became insolvent. T w o applications to the Court of Common Pleas for amendment of the judgment were rejected, on the ground that the Statute of Jeofails did not mention judgments by confession. Advised that the amendment was a matter of course at common law, a writ of error to the Governor and Council as a Court of Errors was secured. This appellate body upon argument reversed the order of the Court of Common Pleas and ordered the amendment as sought. 158 Upon appeal to the King in Council the appellants argued inter alia that in the nature of the case no writ of error lay to a superior court from the Common Pleas order—it not being a judicial sentence.159 To this objection respondent counsel Ryder and Murray replied that, strictly speaking, there is no such thing as a writ of error in our plantations similar to a writ of error in England. For, if there was, it would be a writ of right—whereas there is no such writ of right in our plantations; and though, from long habit and practice, and by vulgar error, when an appeal of complaint from any of the courts there (except the Court of Chancery, which consists of the Governor and Council) is made to the Governor and Council it is called a writ of right, yet it is applied for by petition to the Governor, and must be allowed by him before it can be brought; and the Governor is, by the royal instructions, expressly restrained from granting it, where the sum in question is under ¿300 and what issues by the Governor is not strictly a writ of error, but is in the nature of the Governor's precept to the Chief Justice to transmit the record before the Governor and Council. And there never was in Barbados, or any other of the British Sugar-Islands, such a proceeding known as a demurrer to such writ of error; no traverse ever taken; nay, generally no errors assigned; which if what is called a writ of error was, in a legal sense and 157 61 Shelburne MSS, 629-34 (Clements Lib., Ann Arbor,'Mich.). 1,8 See the conciliar "cases" of both parties

in

158

the Library of Congress (Law Div.). C a t e of Appellant (L.C., Law Div.).

T H E SCOPE OF A P P E L L A T E R E V I E W

385

view, to be deemed a writ of error, must, as the case required, have been, in some instances, the method of proceeding. Furthermore, it was argued that such writs of error should lie only from courts of law. But they had been allowed from "proceedings on the equity side of the Exchequer, where the answer was made upon oath, replication and rejoinder filed, witnesses examined on interrogatories and all the proceedings the same as in Chancery." The writ was really "in the nature of an appeal from a gravamen though improperly called a writ of error." The Governor and Council, who well knew the nature of the writ and the constitution of the island, had unanimously overruled this objection to the propriety of the writ, and appellants had not even appealed from this part of the determination below. 180 The outcome of the appeal was an affirmance of the judgment of the Court of Errors. 161 Since the opinion altering the instructions was rendered by the same counsel only a few weeks after this argument in Clar\e and Gosling v. Smith, it is a reasonable inference that the words "in cases of error" were deliberately omitted from the draft of revised instructions to accord with the crown law officers' conceptions of the realities of colonial practice. With this allegation as to the nature of error jurisdiction in Barbados in mind, let us examine the effects of the 1753 alteration in the gubernatorial instructions. As already stated, the usual instructional article provided for appeals "in cases of error" from the courts in the province to the Governor and Council in civil causes where the amount involved exceeded ¿300 sterling. 162 On December 18, 1753, circular instructions were sent out that the Governor, on application being made for that purpose, "permit and allow appeals from any of the courts of common law" in the province to the Governor and Council subject to the previous minimal requirements. For that purpose the Governor was to issue a writ "in the manner which has been usually accustomed," returnable before the Governor and Council who were to proceed to hear and determine such appeal.163 The preamble to the circular instruction justified the new form by stating that the method prescribed by the instructions relative to appeals in cases of error had by periodic conciliar regulations become defective and improper.164 We have suggested that the significance of the alteration for our purposes lies in the omission of the confining clause "in cases of error." Did this omission extend the appellate jurisdiction of the Governor and Council beyond the scope of writ of error proceedings to review of both law and facts ? 180 191 162

Case of Respondent (L.C., Law Div.). PC 2 / 1 0 3 / 3 5 5 , 408. ι Labaree, Royal Instructions, # 4 4 8 .

163 164

ibid., Ibid.

#453.

386

T H E SCOPE OF A P P E L L A T E REVIEW THE REACTION IN SOUTH CAROLINA

Diverse interpretations of this instructional innovation gave rise to controversy in N e w Y o r k centering about the celebrated cause of Cunningham

v.

Forsey. But before dealing with that cause let us proceed chronologically to examine the problem of interpretation as it first made its appearance in South Carolina. In February, 1762, one Egerton Leigh made application to Governor Boone for a copy of the instruction in question. Upon this application the governor observed that it did not appear that due notice of the instruction had been given to the judges of the law courts for their government therein or that the same had been made public by record or otherwise for the benefit of those concerned. Therefore, it was ordered that a certified copy of the instruction be delivered to the Chief Justice of C o m m o n Pleas and that this instruction be incorporated into the records of that court. 1 6 5 In March, 1763, Governor Boone informed the Board of Trade that several difficulties had arisen in the interpretation of the altered instruction. Boone stated that the Governor and Council were not agreed whether proceedings under the instruction were intended to be after the civil or common law manner, or whether the appellate court was to take cognizance of matters of law only or also of fact. Attempts were fruitless to procure copies of proceedings in older colonies of any cause removed to the Governor and Council and from thence to the K i n g in Council, a program which would have clearly established the propriety of the mode pursued. His doubts not dispelled by a local Attorney General's opinion, the governor sought from England a complete transcript of a cause begun in a colonial court of law, moved to the Governor and Council, and finally determined by the K i n g in Council or a minute of the Attorney or Solicitor General and distinct directions for conduct in execution of the instruction. 166 N o criterion of practice under the previous instruction existed, since no appeal had ever been taken to the Governor and Council in South Carolina. 1 6 7 1 6 5 3 MS Pub. Ree. So. Car., 459-61 (So. Car. Hist. Comm., Columbia, S.C.). But note that on March 12, 1754, Governor Glen had laid the circular instruction before the council. 23 MS So. Car. Council Journal, 133-34. Later, on Nov. 29, 1757, Governor Lyttelton had communicated to the council his 52d instruction as to appeals (26 ibid., 82-83). 1M CO 5/377/M 69. Search has failed to discover a copy of the Attorney General's opinion referred to in this communication. 1 8 7 See CO 5/394/D 2; 33 MS So. Car. Council Journal, 306. A 1730 observer, discussing the royal instructions to the governor of South Carolina allowing appeals to the Governor and

Council in cases of error exceeding ¿ 1 0 0 sterling, stated that "strictly and properly there is no appeal known to the laws of England, from the courts of common law in civil cases. Writs of error are allowable from the Kings Bench to reverse judgments erroneously given in all inferior courts of record. There are writs of erTor in Parliament and from the Exchequer Chamber . . . There are also appeals to the House of Lords from decrees in Chancery, and there are appeals in the ecclesiastical and other courts who proceed according to civil law from an inferior to a superior judge, but in all these cases the laws have settled certain and stated methods of

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387

In October, 1763, the governor acquainted his council that he had received from agent Charles Garth the proceedings in a Jamaica appeal from the Supreme Court to the Governor and Council, and from thence to the King in Council. These proceedings were communicated to the South Carolina council, whose advice was sought in the establishment of forms to be observed in cases of like nature coming before the Governor and Council, but the council, too indolent to cope with the matter, thereupon ordered the proceedings transmitted to the Attorney General. 188 In December the governor called his council's attention to the lapse of time since the reference to the Attorney General to report whether the transmitted proceedings removed the objections formerly stated and gave sufficient insight and direction for the Governor and Council to sit as a Court of Appeals. A clerk was thereupon ordered to wait upon the Attorney General and require the report on the reference.189 In February, 1764, upon gubernatorial prompting, it was ordered that the late Attorney General's report on the appeal instruction and the Jamaica proceedings should be referred to the new Attorney General, John Rutledge. The latter was to consider and give his opinion on the legal method and form of conducting process on appeals grounded on the governor's instructions. 170 No immediate report thereon was forthcoming. Finally, on April 2,1765, the governor informed his council that one Symond (Simmons or Simond) had signified his intention of appealing from the Court of Common Pleas judgment in Lessee of Symond v. Shubric\ and had sought information as to the procedure in such case. On April 11, after consideration of the matter, a copy of the instruction as to appeals was ordered sent to Attorney General Rutledge to report his opinion thereon to the Board. 1 1 1 In an opinion laid before the council on April 25, 1765, Rutledge stated that he had considered the instruction and the reference, taking it for granted, as I think sufficient reasons may be produced to support the position if doubted, that the King by this instruction intended to create a court or to appoint special commissioners here whose jurisdiction and power should be to examine into judgments complained of as erroneous in point of law and to reverse and reform or to affirm those which upon proper inquiry should appear to proceedings, and proper judicatures are established to determine in these cases at fixed terms." But in South Carolina "the Governor and Council have never granted any writs of error or appeals, or setded any known method of proceeding in consequence of His Majesty's instructions to this purpose." MS Observations on the Present State of the Courts of Judicature in His Majesty's Province of South Carolina (1730), 6 (L.C.).

168 29 MS So. Car. Council Journal, 105-6. For the advicc of the Board of Trade to Garth that he take out of the Council books a copy of the proceedings in any appeal from any other colony, see /CTP, 1759-63, 365. 1ββ 30 MS So. Car. Council Journal, 1 - 2 . 170 30 ibid., 39-40. 171 32 ibid., 494, 503-4.

388

T H E SCOPE OF A P P E L L A T E

REVIEW

be erroneous or illegal in order that if worthy of further removal they might be ultimately determined before the dernier resort for all laws arising in the plantations, his Majesty in his Privy Council. 172 T h e Attorney General then outlined a method of appeal that would legally and constitutionally fulfill the end and intent of the royal instruction. On a petition of appeal to the Governor by either party to a suit in the Court of Common Pleas complaining of error in the law in the proceedings or judgment in such suit and that the sum or value in dispute exceeds ^300 sterling which part should be verified by affidavit the Governor may grant an order for issuing a writ of error under the Great Seal [according to an annexed form]. 1 7 3 This writ signed by the Governor should be lodged with the Chief Justice or clerk of the pleas by the appellant who must give bail or security by recognizance in that court to the effect required by this instruction and the statutes of 3 James I, c. 8 and 16, 17 Charles II, c. 8 which are of force in this province. This being done and not before, the writ should be allowed by the Chief Justice and a certificate of such allowance being served on the defendant in error or a supersedeas issued upon allowing the writ by the Chief Justice, execution will be thereby stayed till some determination is had by the Governor and Council. The writ must be returned agreeable to the tenor of it by the Chief Justice together with a transcript of the record and the superior courts being thus regularly possessed of the cause must incidently have power to make such reasonable rules and orders as may be necessary for bringing it to a determination, it would be proper to establish a set of general standing rules or orders to be observed in conducting the proceedings in cases removed into this court and a little experience will shew the necessity of such a step and of having stated times for the court's meet172

32 ibid., 507-12. 32 ibid., 509-12. The body of the writ was as follows: "To our trusty and well beloved A Β Esq. Chief Justice of our province of South Carolina greeting. For as much as in the record and process and also in giving of judgment in a plaint which was in our Court of Common Pleas in our said province before you and your associate our justice of the said court by our writ between C D and E F of a plea of debt, etc. as the case may be, as it is said manifest error hath intervened to the great damage of the said C D as by his appeal to our Lieutenant Governor and Council of our said province, we are informed and we being also informed on the said complaint of the said C D that the sum or value by him appealed for exceeds ¿ 3 0 0 sterling and therefore willing that the said error if any be duly amended according to the form of our royal instruction to our said governor in such cases 173

provided and full and speedy justice done to the said parties in this behalf do command you that if judgment be given thereupon and security shall be duly given by the said appellant to answer such charges as shall be awarded by our said Lieutenant Governor and Council in case the first sentence be affirmed, then you send to us before our said Lieutenant Governor and Council distincdy and plainly under your seal the record and process of the said plaint with all things touching the same and this writ so that we may have them before our said Lieutenant Governor and Council in our Council Chamber at Charlestown in our said province the n t h day of May next that inspecting the record and process aforesaid we may cause further to be done thereupon for amending the said error of right and according to law shall be meet to be done."

T H E SCOPE OF A P P E L L A T E REVIEW

389

ing. The first rule that seems necessary to prevent unreasonable delay should be that the plaintiff in error assign error within a limited time after the writ is returned. If he does not or the matter assigned for errors should prima facie appear to the court not to be such or the sum or value appealed for should not exceed £300 sterling, the Governor and Council should quash the writ whereby the defendant in error will be entided to take out execution at law and may also have his remedy upon the recognizance taken below on allowing the writ, but if errors which seem sufficient to require examination are assigned by the plaintiff notice thereof be served on the defendant together with a rule to plead to them by a certain day. When he has done so an order may be had for setting down the cause for hearing and upon argument of the errors, the Governor and Council will either reverse, reform or affirm the judgment complained of as they think right and award costs in their discretion upon affirmance. Rutledge further observed that when judgment below was affirmed or reversed, "the superior court should also give such judgment as the inferior ought to have done." When an appeal to the King in Council was desired, the instruction clearly pointed out the terms on which it was granted.174 On April 29 the South Carolina council, after considering the instruction and the Attorney General's report, were of the opinion that the intent of the instruction would be answered by pursuing the method pointed out by the Attorney General. Thereupon the clerk was directed to give notice that the board would hear and determine causes brought in that manner before it. 178 After all this fuss and flourish, the instant appeal never came on for hearing. 178 On December 12, 1767, the governor informed his council that a day had been appointed for hearing Gaulphin v. Lublcy as a Court of Error in pursuance of the royal instructions; that it being the first instance of its kind, it would be necessary to settle some rules for future observance. The council advised the governor to appoint a register and crier and that it would be proper to take the state oaths and an oath of office before sitting in judgment. But the council were of the opinion that the proceedings had in the pending cause would better enable them to settle any general rules for future observance.177 Although the oaths were accordingly taken on December 15, 178 there is no evidence that the appeal was ever heard. From Rutledge's opinion it is evi174

32 ibid., 5 0 7 - 1 2 . 32 ibid., 5 1 7 - 1 9 . 178 In a Nov. 30, 1770, report to the Board of Trade it was stated that, "application was made, six or seven years ago, to this jurisdiction [Governor and Council], but as it had never been exercised here, the Governor and Council were desirous to establish their first proceedings with circumspection, and sent 175

to the Northern provinces for information but received nothing satisfactory; the appellants dropped their suit, and the jurisdiction rcmains unexperienced" (CO 5/394/D 2). 177 33 MS So. Car. Council Journal, 306-7. 178 33 ibid., 3 1 2 . Cf. MS Journal So. Car. C.t. Common Pleas, 1763-67, 292, where the action was designated as Lessee of Tubly v. Galphin.

T H E SCOPE OF A P P E L L A T E R E V I E W dent that the instructional ambiguity was resolved in favor of proceedings according to the common law, perhaps on the basis of Jamaica precedent. A departure from common law practice is found in the statement that the appellate court could "reform" judgments below without imposing any limitation to judgments upon special verdicts. But no general review of the facts by the appellate body was contemplated. C U N N I N G H A M V. FORSEY

Let us now turn to the problem of interpretation as it emerged in New York in an episode which shook the province and had repercussions the whole length of the Atlantic seaboard. Forsey v. Cunningham was an action in the Supreme Court for an assault, battery, and wounding committed by defendant upon plaintiff's person on July 28, i ^ . 1 7 9 The manner of the assault particularly aroused popular resentment; Cunningham concealed a sword upon his person, then sought out and pursued plaintiff, beating him until he defended himself. Whereupon the assailant stabbed Forsey through the lungs. 180 Upon return of the writ in the 1763 October term, plaintiff declared in the usual form to the extent of ¿5,000 damages; after an imparlance to the following January term, the defendant pleaded the general issue. In the April term, 1764, defendant moved for and was granted a struck jury, and the cause came on for trial at the next October term. 181 At the trial, proof of the battery was so clear that apparently defendant adduced only evidence in mitigation of damages. 182 After an unobjectionable trial of ten or twelve hours duration, the jury, on October 26, found the defendant guilty of the trespass charged in the declaration and assessed damages at ¿1,500, and costs at six pence.183 179 The history of this celebrated cause is set forth in The Report of an Action of Atsault, Battery, and Wounding, Tried in the Supreme Court of Judicature for the Province of New Yor^, in the Term of October 1764, between Thomas Forsey, Plaintiff, and Waddel Cunningham, Defendant (New York, 1764) (hereinafter referred to as Rep. Forsey v. Cunningham). This pamphlet was reprinted in the New-Yor% Gazette; or, the Weekly Post-Boy commencing with the Jan. 3, 1765, issue ( # 1 1 4 8 ) and terminating with the Feb. 21 issue ( # 1 1 5 5 ) . The brief account of the cause in Keys, Cadwallader Colden, A Representative Eighteenth Century Official (1906), 3 0 0 - 3 1 1 , is unduly pro-Colden and unappreciative of the legal issues involved. 180 2 Aspinwall Papers, 10 Mass. Hist. Soc. Coll. (4th ser.), 554~55· 181 MS Mins. N.Y. Sup. Ct. lud. (Rough), 1764-67, sub Oct. 25, 1764.

182 The evidence for the plaintiff consisted of Linus King; Cornelius Hyatt; Thomas William Moore; James Murray; an account by James Murray, £40; Dr. Monroe's receipt for ¿20; Dr. John Jones; Dr. Thomas Jones; Dr. John Jones' receipt for ¿ 2 0 ; Dr. Thomas Jones' account, ¿20; an Aug. 25, 1764, affidavit of Alex Scott; an April 30, 1764, affidavit of Stephen Clay; Sheffield Howard; Robert Mercer; George Traile; James De Peyster. For the defendant: John Holt; Holt's newspaper No. 1077 dated Aug. 25, 1763; Benjamin Jones; William Gillihand; Robert Alexander; Richard Mercer; James Thompson; James Mills (MS Mins. N.Y. Sup. Ct. lud. [Rough], 1764-67, sub Oct. 25, 1764). 183 Ibid., sub Oct. 26, 1764. Three eminent counsel appeared for the plaintiff and four for the defendant; witnesses on both sides were fully examined, and the evidence summed up by counsel for both sides (Rep. Forsey v.

T H E SCOPE OF A P P E L L A T E R E V I E W

391

Cunningham, in England at the time of the trial, had directed his agent, Robert Waddel, to appeal in the event the jury awarded damages exceeding the instructional minimum, and to this end minutes of the evidence had been taken at the trial. But when the verdict was rendered, counsel for the defendant, at the instigation of William Smith, Jr., were agreed not to participate in such a measure. Therefore, George Harrison, a notary public, moved the court for an appeal agreeable to the royal instructions, tendered four sufficient securities, the minutes taken at the trial, and a certified copy of the governor's instructions, and also moved for entrance of the motion in the court minutes. The court, with some heat, refused the motion, saying it knew of no appeals from it but by writ of error. To which Harrison replied that his appeal was upon the merits, knowing of no error in the proceedings.18* On the next day, October 27, James Duane for the defendant moved the court to set aside the verdict for excessive damages and to grant a new trial on payment of costs. The court, being of the opinion that it could neither mitigate the damages nor order a new trial, upon motion of plaintiff counsel ordered judgment entered with ¿75/19/6 costs.185 Thereupon Waddel delivered into court a petition of appeal, a proper bond executed by four substantial persons in ¿3,000 penalty, and a copy of the royal instructions. A prayer that these instruments be received and read was refused, as was a motion that the application be made a court minute. The court informed Waddel that the application was based on a misconstruction of the governor's instruction, which gave only a writ of error, that the instruction was directed to the governor, not to the court, and that the court were judges of the law and were not to be directed by any royal instructions.18® After close of the court term, a further petition of appeal was presented by Cunningham's attorney to Lieutenant-Governor Colden, together with a bond Cunningham, 2). See also ibid., 8-9 (a version of the trial proceedings by Chief Justice Horsmanden), and 2 Journals General Assembly N.Y., 803. As to the justness of the quantum of damages, see 2 Aspinwall Papers, 536-37· 555· 184 N.Y. State Lib. MS, A 2699; 4 Wm. Smith MSS, sub Autumn, 1764. Cf. "A narrative of such of the proceedings in an appeal, brought by Mr. Cunningham from the Supreme Court to the Governor and Council, as do not appear in the minutes of Council, Dec. 6, 1764" (CO 5/1071/PP 67). 165 MS Mins. N.Y. Sup. Ct. Jud. (Rough), 1764-67, sub Oct. 27, 1764. For the judgment roll see N.YJJ.R. Parch., 2 1 - A - 8 . Cf. Rep. Forsey v. Cunningham, 9. The Supreme

Court's view on mitigation of damages was orthodox, Sayer (Law of Damages [1770], 173) stating that "the power of abridging such damages, [those assessed by a jury] is not at this day exercised in any action." However, the prevailing English view recognized the discretionary power of the bench to set aside verdicts for excessive damages and grant new trials; see Ash v. Ash (Comberbach 357); Wilford v. Berkeley (1 Burr. 609); Leeman v. Allen (2 Wilson K.B. 160). Support for the Supreme Court's stand is sparse, but see Townsend v. Hughes (2 Mod. 150). 186 N.Y. State Lib. MS., A 2699; 4 Wm. Smith MSS, sub Autumn, 1764. Cf. 2 Journals General Assembly N.Y., 804; Rep. Forsey v. Cunningham, 68.

392

T H E SCOPE OF A P P E L L A T E REVIEW

as security in case of affirmance. 187 Colden, not a lawyer, found Attorney General Kempe reluctant to express an opinion, but Kempe, who was an able and learned lawyer, finally declared that the Governor and Council could not by law hear any cause except in a course of error. Colden being intent upon the meaning of the instruction rather than the "law," the Attorney General replied that the instruction neither warranted nor was designed for such an appeal as had been applied for. 1 8 8 Colden, nevertheless, communicated to his council the instruction of 1753 governing appeals (the 33d instruction to Governor Monckton), laid before it the appeal and bond, and informed it that it was incumbent upon him to issue the prayed for writ of appeal. 189 The provincial council opposed the construction adopted by Colden, but was informed that the writ could be quashed upon its return if judged illegal. 190 Shortly thereafter Cunningham's attorney applied to Colden for the writ of appeal, alleging that no counsel would advise in drafting it; he was told to get it drafted by the best advice possible. Since it was expected that execution would speedily issue on the judgment, Colden, on October 30, sealed what was called a "writ of inhibition" to the judges and other officers of the Supreme Court to stay proceedings in the cause. 191 On November 2 was sealed another writ, directing the Chief Justice to bring up the proceedings in the cause to the Governor and Council. 192 Before finishing taxation of costs, the Chief Justice was served with the inhibitory writ, but he completed the taxation notwithstanding and signed the judgment. The same instrument was served on the clerk of the Supreme Court, who in consequence thereof refused to seal plaintiff's execution, thus preventing levy of damages and costs. 193 187

7 Doc. Rei. Col. Hist. N.Y., 676. 4 Wm. Smith MSS, sub Autumn, 1764. Cf. 7 Doc. Rei. Col. Hist. N.Y., 698. 189 29 MS. Mins. N.Y. Council, 4-8; 7 Doc. Rei. Col. Hist. N.Y., 676. 180 29 MS Mins. N.Y. Council, 4-8; 4 Wm. Smith MSS., sub Autumn, 1764; Chalmers MSS., 4 New York,, 26; 2 Aspinwall Papers, i-M· 191 7 Doc. Rei. Col. Hist. N.Y., 676-77. For the petition for the writ of inhibition see CO 5 / 1 0 7 1 / P P 65. The writ is set out in Rep. Forsey v. Cunningham, 4. The legal adviser of Waddel appears to have been one John Coghill Knapp, who had been convicted for fraud in England in 1763 and sentenced to transportation (Letter Book of fohn Watts, N Y H S Coll., Pub. Fund Ser. [ 1 9 2 8 ] 307, 309; 2 Aspinwall Papers, 537, 542; 4 Wm. Smith MSS., sub Autumn, 1764). For excerpts from London newspapers of the trial and conviction of Knapp see New-York Gazette; or, The 188

Weekly Post-Boy, # 1 1 5 7 , March 7, 1765. Knapp and "old Nicolls" drew up the writ. It was later suggested that the form of the writ "was borrowed from the practice of Jersey or Guernsey, or extracted from some Scotch code of venerable antiquity, or fabricated from an old petition of doleance" (The Sentinel, No. 1 , New-York Gazette; or, The Weekly Post-Boy, # 1 1 5 6 , Feb. 28, 1765). The writ was criticized as designed to prevent any judgment from being given in the Supreme Court and in effect abolishing that court if obeyed. The writ was also alleged to be an indignity and an insult to the justices in that it assumed that they would violate their oaths and commissions in obedicnce thereto. 192 7 Doc. Rei. Col. Hist. N.Y., 676-77. The writ is set forth in Rep. Forsey t'. Cunningham, 5. 103 Ibid., 3 - 5 ; 4 Wm. Smith MSS., sub Autumn, 1764. But cf. 2 Aspinwall Papers, 541.

T H E SCOPE OF A P P E L L A T E REVIEW

393

Commenting to the Board of Trade on these proceedings, the LieutenantGovernor declared that this was the ñrst appeal from the common law courts in the province, although writs of error from the Supreme Court had been formerly brought. A s to the distinction between "writ of error" and "appeal" proceedings, Colden understood that in the former the merits of a cause seldom appeared, for where a general verdict was given the merits could not appear, because no evidence was set forth on the record. Only irregularity of proceedings below or some point of law could be corrected by writ of error. But on an appeal the whole cause and the evidence on which the verdict was given appeared, and judgment was on the merits. Colden thought that it was the royal intent to have such judgment on the merits by the 32d instruction, but admitted that the Attorney General was of the opinion that a writ of error only was meant. Colden interpreted the opposition to appeals as coming from the large landed proprietors, who allegedly feared the consequences in case the merits of suits in which they were parties should be brought before the council board. Coupled therewith was the identity of personnel and interest of the landed proprietors and the bench and bar. 1 9 4 Colden conceived appeal on the merits to be necessary to preserve the rights of the crown and the liberty and properties of the subject, and entirely consistent with the constitution of the colonies. 19 8 Before launching into the arguments advanced on both sides to jupport contradictory interpretations, some analysis of the motivation of the participants in this controversy is necessary. Colden, an extremely opinionated gentleman, was bitterly hostile to the lawyers in the colony. 19 ® Therefore, when the lawyers en masse opposed the construction contended for by Waddel, it was natural for Colden to gravitate to an opposite viewpoint. 197 Furthermore, adoption of such a view might secure for Colden the favor of the English administrators. 198 Less cynically, the Lieutenant-Governor may have honestly supported appeal on the merits as necessary to imperial control. On the part of the lawyers, William Smith, Jr., wrote that he had long supposed a ministerial aim to make plantation judgments "both with respect to law and iact, upon the whole merits, reversible on an appeal to the Crown as the dernier 194

7 Doc. Rei. Col. Hist. N.Y., 677, 705. Ibid., 679. i»e William Smith, Jr., asserted that Colden's enmity to the law was due to his ignorance of it. "Vain and ambitious of power he had always found himself in Council of less consequence than some other law-members, for his opinions wanted weight, because he himself wanted information" (4 Wm. Smith MSS, sub Nov. 24, 1761). This dislike was accentults

ated by the part played by the lawyers in the recent struggle in the province for judicial tenure during good behavior {ibid.). 187 Robert R. Livingston was of the opinion that the matter would have attracted less attention if Colden had not been so fond of showing himself superior in legal matters to the whole body of the law (2 Aspinwall Papers, 558). Cf. ibid., 549-50. 198 2 Aspinwatl Papers, 537, 553.

T H E SCOPE OF A P P E L L A T E REVIEW resort." This would increase the power of the crown and the dependency of the colonies and would coincide with the ministerial principle that the royal will was law in the provinces. The King in Council had received and determined such appeals from New England; the instructional alteration was made after the acquiescence of the New England colonies "had given the Crown a sort of possession." 1 9 9 But we have seen no evidence that the alteration was made with such an objective in view. Ironically enough, the initial appearance of the Coldenite interpretation, as we have seen, appeared in reasons offered by Smith to the Governor and Council in 1755 explaining why the instructional minimum as to appeals did not include writs of error. 200 T o what extent the opposition of the bench and bar was rallied to prevent close scrutiny of land patents is debatable; 2 0 1 popular passions were aroused by belief that the Coldenite interpretation was an attempt to abolish trial by jury. 2 0 2 T h e agitation over appeals was also stimulated by rumors of the impending Stamp Act. 2 0 3 At the date for the return of the so-called writs, November 14, Chief Justice Horsmanden delivered in before the Lieutenant-Governor and Council the "writs" orally declaring his reasons for making no returns thereon and praying leave, which was granted, to draw them up in writing at large for entrance in the minutes. 204 On November 19 the Chief Justice gave his reasons in writing for nonreturn of the writs. Since no writ of error had been offered, the verdict of the jury must be the sole cause of complaint, and relief therefrom 199 2 Aspinwall Papers, 540. Removal of the judges for their contrary opinions seems to have been expected {ibid., 546, 552). 20 °2 Wm. Smith MSS, 375-80. Cf. supra, pp. 220-21. 201 For the interrelation of landed interests and colonial liberties see Mark, Agrarian Conflicts in Colonial New York. (1940), 101-3. General Gage declared that fear of annulment of patents was at the base of the opposition to Col4en in this cause (1 Correspondence of Gen. Thomas Gage, ed. by C. E. Carter [1931], 152). 202 7 Doc. Rei. Col. Hist. N.Y., 699. William Smith, Jr., wrote: "I do not remember any subject that has so much engaged the public attention. People in general think their all at stake. I wish their heat may not transport them into improper steps" (Chalmers MSS, 4 New York, 16). See also 2 Aspinwall Papers, 553> 556; the preface to the relation of the cause in the New-York Gazette; or, The Weekly Post-Boy, # 1 1 4 8 , Jan. 3, 1765; the address of the Grand Jury for the City and County of New York to the justices of the

Supreme Court, Jan. 19, 1765 (ibid., # 1 1 5 1 , Jan. 24, 1765). 203 2 Aspinwall Papers, 541, 570; Chalmers MSS, 4 New York, 20. - 0 4 29 MS M ins. N.Y. Council, 9-10; 2 Journals General Assembly N.Y., 804. Colden wrote that on the return day Horsmanden informed the Council that he had brought two pieces of parchment called writs, that he then read part of the oath which he had taken not to delay justice by any letter from the King, that he declared that writs were letters, and that it was better to obey God than man (for the oath see Rep. Forsey v. Cunningham, 6-7). Having been given further time to transcribe fair his reasons against allowance of the appeal, the Chief Justice was observed during this period in frequent consultation with the principal lawyers (CO 5 / 1 0 7 1 / PP 67). Cj. Rep. Forsey v. Cunningham, 14. Since no lawyer would appear for or advise appellant, agent Waddel petitioned to have counsel assigned appellant to prosecute his appeal, but despite the urging of Colden, the question was not put (29 MS Mins. N.Y.

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must be sought. But the relief sought was based on an untenable interpretation of the 32d instruction. In the first place, this interpretation supposed that the instruction altered the ancient law of the land that the trial of facts was entrusted to the jury and that their verdict thereon was final. The Supreme Court proceeded in the main according to the practice of the courts of Westminster; hence no verdict had ever been re-examined by any superior provincial judicatory. To attempt such re-examination would be repugnant to the laws both of England and of the colony; to suppose royal design to change the law in such an important aspect was absurd.205 Secondly, the very words of the instruction permitted a more reasonable interpretation. In common parlance, the bringing of a writ of error to carry a cause from a lower to a higher tribunal was an "appeal"; this linguistic usage would satisfy the terms of the instruction without altering the existing law. Furthermore, the term "appeal" as applicable to cases of error was employed in the pre-1753 instructions; 208 Gordon v. Lowther was also cited to support the Horsmanden view. 207 In addition, by the instruction the governor was "to issue a writ in the manner which has been usually accustomed"; such manner could mean only appeals prosecuted by writs of error, the constant practice in the colony. The provision forbidding judges below from voting as council members, but allowing them to render the reasons of their judgment implied that the appeal given was only in error, not upon the jury verdict, since they were only judges of the law, not triers of the facts.208 Horsmanden argued further that reasons of convenience militated against a contrary construction. Since evidence of witnesses was given viva voce, it could not be transmitted as part of the record; the court above, therefore, could not judge of the facts supporting the verdict without a re-examination of the witnesses. Two objections existed to such re-examination—the necessity of a trial de novo, lack of a written record rendering impossible confinement of appellate proofs to what was offered below, and the encouragement to perjury by notice of adversarial proofs. Institutionally, trial by jury would be partially abrogated, since verdicts in all causes above ¿300 would lack finality, resultCouncil, 9-10; 2 Journals General Assembly N.Y., 804; 7 Doc. Rei. Col. Hist. N.Y., 677). 205 29 MS. Mins. N.Y. Council, 11-16; Rep. Forsey c. Cunningham, 9-10. A decade later William Smith, Jr., made the assertion in his memoirs that he had formulated these reasons offered by Horsmanden (5 Wm. Smith MSS, sub Nov. i l , 1776). 208 Rep. Forsey v. Cunningham, 10. See also ι Labaree, Royal Instructions, #448. The language which was garbled by Horsmanden

reads: "that appeals be permitted to be made in cases of error from the courts in our said province." 207 2 Ld. Raymond 1447. Writ of error and appeal were used synonymously. See also Hodgson v. Ambrose (1 Dougl. 337, 344, note [English Reprint]), mentioning "an appeal in the nature of a writ of error"; the argument of Comyns in Christian v. Corren, supra, p. 173. 209 Rep. Forsey v. Cunningham, 10-11.

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T H E SCOPE OF A P P E L L A T E REVIEW

ing in encouragement to litigiousness. The expense attending such appeals would be intolerable, as the proofs before the Governor and Council would have to be reduced to writing to form the civil law apostles for Privy Council appeal, although proper officers for this purpose had never been appointed. 209 Pressure of business would overwhelm the appellate courts, and tedious complaints to the King in Council would be increased. The subject would be exposed to insecurity and danger, and there would be infinite delays of justice encouraging contention, with witnesses of all characters having equal credence with appellate judges and with new modes of introducing proof established by dictate of power without law. 2 1 0 Following entrance of these reasons, the other Supreme Court judges were desired by the provincial council to present the reasons for their disobedience. It was then moved that the opinion of some of the legal profession be taken on the question whether the crown could legally constitute a court in the province with authority to hear civil causes by way of appeal from common law courts, according to the course of the civil law, upon the whole merits, to re-examine the evidence given to a jury, and to reverse or control its verdict. All the lawyers present immediately responded in the negative. 211 It was thereupon moved that the Attorney General deliver his opinion whether the King by the 32d article of the instructions had constituted such a court. Kempe then declared his opinion that the crown meant by this article to constitute the Governor and Council a court of errors, not a court of appeals of the latitude expressed in the question. 212 After some evasion Justice Smith was prevailed upon in council on December 12, 1764, to give his reasons for not allowing the requested appeal. Smith declared that the Supreme Court could take no notice of an appeal from the verdict of a jury. For, in the first place, the judges by their commissions were only constituted judges of the law and were limited in their proceedings by the practice of the courts of Westminster, wherein no appeal from any verdict 208

Ibid., I I - I Î . It was asserted that according to civil law usage there would have to be interrogatories, cross-interrogatories, examinations, cross-examinations, and production of exhibits; that the evidence produced at a common law trial of 1 2 or 24 hours, especially where tide to realty was involved, would if reduced to writing swell the apostles to an enormous size. 210 Ibid., 1 2 - 1 3 . See 7 Doc. Rei. Col. Hist. N.Y., 679-80, 684-85, as to Colden's strictures upon Horsmanden's conduct in publishing these proceedings in council.

211 2 9 MS Mint. N.Y. Council, 1 6 - 1 7 ; 2 Journals General Assembly N.Y., 804; Rep. Forsey v. Cunningham, 14. 212 2 Journals General Assembly N.Y., 804. Compare the Colden version, that Horsmanden proposed that the question be put to the lawyers then attending who were hesitant to answer; that the council refused to put the question or to enter into the minutes the refusal to put the question; that then William Smith, Jr., stated the question and answered it himself, as did the Attorney General (CO 5 / 1 0 7 1 / P P 67).

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was known to have been allowed. 313 Secondly, under the judicial oath a judge was bound to determine by the common law; since the common law knew of no appeal from a verdict to any court except wherein it was given, it would be contrary to the judicial oath to allow any other appeal. Smith was permitted to forego giving any opinion at that time on the writs issued by Colden. 214 On the same date Justice Livingston also rendered reasons for refusal to return the two writs issued by Colden, waiving the many defects of form in these instruments. The inhibitory instrument, a great abuse of the royal authority, was illegal in several respects. If a writ of error had been brought, the court would still have been obligated to proceed to judgment and to sign the roll. The roll being in possession of the court and no proper method being taken to bring the cause before the Governor and Council, the prohibition might have been perpetual to the great grievance of the party concerned. Further, the Governor and Council were not competent judges of the merits, for it was impossible for them to be informed of the grounds of the jury verdict, since juries were sometimes guided by their own knowledge, especially as to the character of witnesses.218 Directing his attention to the instruction in question, Livingston stated that it appeared from the previous instructional article that "appeal" signified nothing but "writ of error." That it had been understood as such by the council appeared from a recent proceeding in which it was questioned whether cognizance should be taken of a cause on writ of error in which it was objected that the matter involved did not amount to ¿300 sterling. If the instruction related to civil law appeals, writs of error would have stood upon the same footing as previously.21® The word "appeal" in the instruction was to be taken as generally connoting the removal of a cause from an inferior to a superior court, whether by writ of error, writ of false judgment, writ of attaint, or audita querela. The loose language was probably due to nonlegal draftsmanship, and furthermore the instruction was intended for the direction of those unversed in legal terminology. Some justification for the language existed, in that it might have been intended to include writ of false judgment, as well as writ of error, as a remedy against an errone2ia

29 MS Mini. N.Y. Council, 19-24; Ftp. Forsey v. Cunningham, 16, 18. The commission is set out at ibid., 17. 214 Ibid., 20-21. The oath, allegedly of 18 Edward III, is set forth at ibid., 19-20. 215 29 MS Mins. N.Y. Council, 24-28; Rep. Forsey v. Cunningham, 21-23. Livingston pointed out that the instruments were directed not only to the judges but also to all "the other officers of our said court, whom it may

concern." So that in a valid return the judges must have joined with alt the other officers. It was submitted whether such joinder was fit or decent. 218 Ibid., 23-24. This point makes little sense, since the superseded instruction also contained a ¿ 300 minimum. See 1 Labaree, Royal Initructions, #448. For the incident probably referred to here, see tupra, pp. 220-21.

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ous judgment in a court not of record. T h e remedies for a party aggrieved by an unjust verdict or error of fact were a writ of error coram nobis, writ of attaint, motion for a n e w trial (the usual practice), or audita querela.

Judges

were not concerned with any errors of fact, but such as might be made part of the record by a bill of exceptions. 2 1 7 Livingston argued that the royal intention not to alter the method of judicial proceedings was evident in the fact that the instruction w a s not directed to the judges and therefore not intended to regulate their conduct. It would be absurd for the judges to have recourse to the scraps of gubernatorial instructions communicated to them to spell out their duties. M a k i n g little of the "manner which has usually been accustomed" argument, Livingston emphasized that a writ of error would bring before the appellate body all that the judges of the inferior court had in their power to send u p ; any other w r i t would be useless. In civil law courts the evidence was reduced to writing and could be transmitted upon appeal. But here the evidence had been given to the jury mostly viva voce, and it was impossible for the judicial memory to retain it. If the bench made records of the testimony of each witness, the labor would be endless and the court of necessity continuously in s e s s i o n . 2 I n some respects Livingston wandered from legal reality, L o r d Mansfield having remarked earlier in Bright

v. Eyrton

that "the writ of attaint is n o w a mere sound, in every case."

21ft

(1757)

O n December 26 Justice Jones returned to the council his answer to the question whether according to the laws and constitution of England an appeal lay f r o m the verdict of a jury on the whole merits of a cause. 2 - 0 H e stated that he k n e w nothing in favor of such an appeal; on the contrary, the rule was ad quaestionem spondent

juratores.

juris respondent

judices,

ad quaestionem

facti re-

T h e procedure formerly used to set aside a verdict was

attaint; present practice favored the motion for a new trial where a verdict w a s given contrary to the evidence. W r i t of error and certiorari did not have respect to the verdict of a jury, as appeared from 27 Elizabeth, c. 8. In conclusion, he was of the opinion that the appeal would not lie by the law and constitution of E n g l a n d . 2 2 1 E v e n while these vigorous views were being presented, Coldcn was seeking support for his conflicting interpretation from the Board of T r a d e . Colden emphasized the necessity of such review to avert calculated general verdicts, from which no appeals at present lay, in cases in which crown rights were involved. G r a n t of a new trial where the verdict was contrary to evidence was a 217

218

219 220

Rep. Forsey v. Cunningham, Ibid., 25-26.

24-25.

ι Burr., 390, 393.

29 MS Mins. N.Y. Council, 3 0 - 3 1 . Jones could not answer why the appeal had not

been allowed, since he was not present in court when the appeal was moved for (Rep.

Forsey v. Cunningham, 27). -- 1 Ibid.. 27-28.

T H E SCOPE O F A P P E L L A T E R E V I E W

399

possible remedy, but it depended upon the judge solely; no error could be assigned for refusal to grant such new trial where the evidence on which the verdict was given did not appear. Colden noted that in the eastward colonies to remedy perplexity of witnesses and jury by counsel all evidence was taken down in writing in open court, delivered to the jury, and made part of the record. Thus, the jury could with greater certainty deliberate on the evidence, and either party had a right to appeal to a superior court on the whole merits without dependence on judicial will for a new trial. Such method established in all the colonies would in Colden's opinion tend greatly to the security of property, to maintenance of the royal prerogative, and to the dependence of the colonies on the mother country.222 Commenting upon the arguments of the judges, Colden labeled as mistaken the argument that domestic limitations upon the royal prerogative in relation to the judicial system extended to the colonies. The common law of England did not control the judicial establishments in the colonies, so that the King could give such power to the colonial judiciaries as most conduced to obtaining justice. Colden, in reference to the "usually accustomed" manner argument, declared that such phrase had reference to the manner "usually accustomed" in cases of appeal, not the manner "usually accustomed" in the colony.223 As to the objection to the expense of "appeals," the present enormous cost of litigation in New York was unfavorably compared with Massachusetts, where "appeals" prevailed. The necessity of civil law instruments such as interrogatories, etc., was removed by having the evidence put in writing below; if witnesses were to be examined before the council, it might be done viva voce in open court and put in writing by the clerk of the council. Taking evidence in writing below also eliminated the hypothetical danger of perjury. As to the increased burden of conciliar business, it was pointed out that the Supreme Court sat only six weeks a year, whereas appeals would not consume as much time as original causes and would probably be fewer in number. In conclusion Colden advised that the instructional ambiguity be removed, that directions for the method of proceeding be given, and that such method be particularly extended to all cases in which title to 222

7 Doc. Rei. Col. Hist. N.Y., 682-83. The anti-Coldenites replied that arguments drawn from practice in the chartered colonies were not applicable in New York, a royal province. In the former, government was in the hands ot officials autonomously appointed or elected; in the latter, crown appointees ruled without colonial control (Letter Boo{ of John Watts, 325-26). 223 7 Doc. Rei Col. Hist. N.Y., 683. Cf. The

Conduct of Cadwallader Colden . . . Relating to the fudges Commissions, Appeals to the King, and the Stamp Duty (1767), 2 Colden Utter Bool^s, N Y H S Coll., Pub. Fund Ser. (1877), 448. where Colden makes the point that rules of proceedings might from different circumstances be unavoidably different in the colonies from the practice of the courts at Westminster and at the same time consistent with the laws of England.

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lands was in question or the prerogative or rights of the crown affected. It was cautioned that a delay in determining the matter would be construed as a tacit withdrawal of the instruction. 224 On January 2, 1765, Colden rendered to his council an exhaustive opinion on the controverted matter of appeals, 2 2 5 a mighty bit of fireside jurisprudence. T h e lieutenant-governor alleged that the opposition arguments failed to distinguish between laws and the execution thereof; the K i n g could establish diverse methods of judicial procedure suited to individual colonies, although such variously constituted courts all administered the common law. Secondly, it was essential to the royal prerogative that "appeals" lie to the K i n g , otherwise the dependence of the colonies could not be preserved. T h e n , launching into a pseudo-historical argument, Colden alleged that appeals to the K i n g in person existed by the early common law and were confirmed by Magna Carta. A t that time no distinction between appeals and writs of error existed, since there was then no distinction between judges and juries. Writs of error were a later introduction in the courts of Westminster, and were not part of the common law. Their use was confined to courts where assumed powers were confirmed by usage, unless extended by act of Parliament. This was made more evident by the case of the Channel Islands where judicial trials were by jury and the remedy was by appeal to the K i n g in Council, not by writ of error. T h e reason for this distinction was that the islands were not part of the realm of England; the case of the Isle of Man was similar. 2 2 8 It was evident, said Colden, that by the common law no writ of error could lie in the colonies, because they were no part of the realm of England, and no act of Parliament had extended writs of error thereto. T h e K i n g had not given the Governor and Council power to determine on writ of error, but only on appeals, by which the whole cause was brought up for transmission, if necessary, upon further appeal to the K i n g in Council. From the other colonies Colden referred to the appeal reservation clauses in the Pennsylvania and Massachusetts charters and to the fact that in Connecticut appeals were obtained by petition for royal mandatory writs. Appeals were allowed in several other colonies, and he had no knowledge of any instance of an appeal refusal. 2 2 7 T h e earlier arguments as to the construction of the instructional language and as to convenience were repeated. 228 T o the principal objection that "appeals" deprived the subject of the privilege of trial by jury, it was 224

7 Doc. Rei. Col. Hist. N.Y., 683-85. For an account of this rendition, see Letter Book of lohn Watts, 3 2 1 - 2 2 ; 2 Aspinwall Papers, 549-50. 22 · 7 Colden Papers, N Y H S Coll., Pub. Fund. Ser. ( 1 9 2 3 ) . 1 - 3 · But Colden was in manifest 225

error in his assertion that jury usage prevailed in the Channel Islands. Presumably he regarded the twelve jurats as jurors. 227 Ibid., 3-4. 228 ibid., 4-6. It was also stated that the words "appellant" and "appellee" in the instruction

THE SCOPE OF APPELLATE REVIEW

401

answered that the personnel of the provincial council and the Privy Council afforded assurance that the verdict would always have its just weight; most litigants would rather trust such judges than the usual New York jury. From the minimum set in the misdemeanor appeal instructions, which was lower than civil cases, it was evident that the benefit of the subject rather than advantage to the ruler was aimed at in the instructions. The existent remedy of a new trial was inadequate, as entirely dependent upon the volition of the presiding judges. 229 On the following day Colden informed the council of his omission of what he conceived to be a remarkable instance of an "appeal" from a court whose jurisdiction derived from the common law—the Court of Hustings of London. 230 On January 9,1765, Justice Livingston entered additional reasons in support of his argument against the Colden contention. The entire opposition argument rested upon the theory that the word "appeal" in the instruction could only mean a civil law appeal, but it had been demonstrated from Cowel and Hale that the aforesaid word bore meanings reconcilable with common law usage. When the instruction ordered admission of appeals "from the courts of common law," it must have meant such appeals as were known to the common law. The phrase "in the manner which has usually been accustomed" similarly had reference to such writs. It would be an unnatural construction, when appeals were known to both the common and civil law, to assume that appeals from common law courts should be in civil law form. 231 As stated by Hale, the subject was entitled to the right of trial by his peers and also to the right of attaint. The former was rendered useless by the Colden construction; the latter was abolished by it. That attaints were now in disuse did not weaken their reason in law. Similarly, the institution of trial by jury might be criticized in operation, but the law still recognized its great value. As to the practice in other colonies, cited by Colden, it was not controlling and was open to criticism. Rebutting the use made by the lieutenant-governor of Magna Carta, Livingston asserted that neither Magna Carta nor any established principles of law supported a civil law appeal. New principles, that the common law extended to the colonies, but not acts of Parliament, or that the laws of England extended to the plantations, but their execution being in the King he could erect whatever courts he pleased, were neither self-evident nor proved by were not applicable to writ of error procedure and that the word "condemnation" indicated a new judgment on the merits. -29 Ibid., 6. Cf. the further strictures on the judicial power to grant new trials (Conduct of Cadwallader Colden, op. cit., 448-49). 230 Colden informed the council that when

the King appointed commissioners to do full and speedy justice, they did not only reverse or affirm the judgment of the Court of Hustings, but gave such judgment as that court ought to have given (CO 5 / 1 0 7 1 / P P 7 1 ) . 231 Rep. Fortey v. Cunningham, 58-59.

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C o l d e n . O n the contrary, it was maintained that the colonists carried out w i t h them those laws of E n g l a n d in force, not those of antiquity; furthermore, the c o m m o n l a w could not readily be distinguished f r o m acts of Parliament. T h e second moral proposition above was contrary to the common law and dangerous; the royal prerogative might erect n e w courts, but procedure therein had to be according to the course of the common law. Finally, 4 H e n r y I V , c. 23, w a s enacted in order to prevent such appeals as were now contended f o r . 2 3 2 O n the same day the provincial council delivered a lengthy refutation of the contentions of Colden, argument by argument. In answer to the assertion that the anti-Coldenites failed to distinguish between laws and their execution, it w a s asserted that the K i n g could not alter the adjective law without the least alteration in the substantive law. E v e r y court erected by crown authority must be so modeled in its essential parts as to have a k n o w n and common law jurisdiction. W h e r e v e r such newly modeled courts were essentially different f r o m those k n o w n in the law, it amounted to an alteration of the law. A l t h o u g h different methods of procedure were f o u n d in the various colonies, the essential provinces of the judges and juries were preserved in each. 2 3 3 A n appeal in the sense of a writ of error, it was conceded, was essential to the royal prerogative and to the maintenance of the dependence of the colonies. A s the colonies were not parcel of Great Britain, no remedial writs w o u l d lie f r o m the superior to the inferior jurisdiction, except writs of error. F o r if errors of colonial judges could not be corrected by judges of the k i n g d o m , the laws of the dependent colonies might be insensibly changed or judgments might be given to diminish the superiority of the mother country. T h a t appeals upon matters of fact were not necessary to support this dependence was obvious, f o r the outcome of a question of fact between subject and subject could not possibly effect such independence. 2 3 4 T h e lieutenant-governor had contended that by writ of error the cause was not removed, but that some disputed points in law were determined, which might have no relation to the merits of the cause. T o this it was replied that by writ of error the record was removed and that the merits in law arising f r o m the matters of fact contained in the record necessarily received their determination in a court of errors. T h e citation of M a g n a Carta to confirm the subject's right to appeals was refuted, as was the latent distinction alleged to run through the argument of Colden that the colonies were entitled to the common l a w tempore M a g n a Carta, but that no subsequent laws extended to the c o l o n y . 2 3 5 But even at the time of M a g n a Carta and previous thereto, 232 233 231

ibid., 60-65. Ibid., 31-33. Ibid., 33-34.

235

Ibid., 3 5 - 3 7 . In support of the refutation it was asserted: ( 1 ) that it had been adjudged by the K i n g in Council that in the colonies

THE SCOPE OF APPELLATE REVIEW

403

writ of error was used to correct errors of inferior courts; the "appeals" referred to by Colden were presumably writs of false judgment, which were in the nature of writs of error. Labeled as "mistaken" was the argument that appeals in matter of fact lay from the Court of Hustings. The argument of Colden based upon the supposition that formerly no distinction existed between the province of judge and jury was refuted by demonstrating that the province of the jury had always been what it was at present. Furthermore, the use of writ of error had not been assumed by the King's courts, but had belonged to them from time immemorial. The distinction that writs of error did not lie in the colonies was grounded on the erroneous premise that only the ancient common law extended to the colonies. The supposed necessity of an act of Parliament to give writs of error in certain cases was a misuse of 31 Elizabeth, c. ι. 2 3 β The argument based upon Channel Islands precedents was refuted by use of Sir Matthew Hale's History of the Common Law, and it was averred that there was nothing to show that the appeal mentioned by Lord Hale did not mean "writ of error"; it was certain that writ of error had lain to Calais, which enjoyed the same constitutional status. As to charter provisions in other colonies, it was retorted that the law of the land, not the practice in other colonies, was guiding. The word "appeals" in such charters could still mean "in cases of error" only. In Massachusetts and Connecticut it was well known that by laws of their own making and in evident deviation from the common law a power of appeal in matters of fact had been established. This erroneous practice of appealing on matters of fact to the Privy Council was not to be wondered at in colonies where the law of England was not so well understood or so strictly adhered to as in New York. 2 3 7 By the old instruction, a court of errors was expressly erected, and by implication a writ of error. The "court of appeals" mentioned in the present instruction must necessarily be "the court of errors" of the old instruction, because it directed the accustomed writ. Therefore the accustomed writ thus mentioned must necessarily intend the writ of error implied in the earlier instructions. Jones v. Fullerton from New Jersey was cited to support the contention that appeals for error would lie in the colonies and that the practice of bringing them had long usage there. The the subjects carried with them the laws of England, those made before and after Magna Carta (2 Peere Williami, 75); (2) that by 7 and 8 William III, c. 22, the laws of England as thev then were and as they should appear to be thereafter were made the standards of law in the colonies; (3) that by gubernatorial instruction life, limb, and property were to be

taken away only by such laws as were agreeable to the laws of England; (4) that from the first settlement until the present day the laws of England had been the measure of right and wrong between subjects in the colony. =3β Rep. Forsey v. Cunningham, 38-43. 237 Ibid., 43-45.

404

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REVIEW

arguments drawn from use of the words "appellant," "appellee," and "condemnation" in the instruction were easily disposed of. 2 3 8 A s to the arguments of convenience, the cheapness of litigation in colonies where the "pretorian method" was employed was a great encouragement to a litigious spirit. Yet at the same time, while inexpensive litigation was a great disadvantage to any country, pretorian appeals would constitute an expense too excessive for the subject. Again reiterated was the necessity for the Governor and Council and also the Privy Council to sit continuously to determine all appeals on matters of fact. 2 3 9 Such appeals would render the expense of jury trials useless, encourage perjury on appeal, foster litigiousness, and be attended with great danger in transmission of evidence such as deeds on appeal. Also, the benefit of a view in real property trials would be lost. As to the abrogation of trial by juries, it was maintained that such trial was the birthright of every subject and was fixed by the established laws of the land; it could not be altered by anything short of the legislative authority. Although the K i n g had seen fit to grant appeals in cases of fines, perhaps in the sense contended for by Colden, yet this was not in derogation of the rights of the subject, but a manifestation of the royal clemency. By law, fines belonged to the crown, so the K i n g might without incurring complaint direct such a method of inquiry into the merits as he thought proper, to enable him to judge on the quantum of the fine imposed. 240 As relief against iniquitous verdicts, motion for a new trial, attaint, error quod coram vobis residet, and audita querela were represented as proper methods of relief; in each case the jury remained the final factual arbiter. T h e K i n g could not reasonably have intended to afford a method of relief different from these, unknown to the common law, and never granted to the subjects of England. A n anti-Colden interpretation of the -ρ,ά instruction would still leave the Supreme Court subject to control by writ of error. 2 4 1 In summation the anti-Colden manifesto asserted that an appeal from the verdict of a jury was unknown to the laws of England, the jury having the final determination of all factual matters; that the statute of 7 and 8 William III, c. 22, had erected the laws of England in force at the time of the settlement of the colony as the standard of law in the colony; that the gubernatorial instruction prohibiting deprivation of life, limb, or property otherwise than by established and known laws not repugnant to the laws of England was supported by and calculated to enforce obedience to that statute; that in ac238 Ibid., 46-49. If the carrying up a cause by writ of error was an appeal, the party plaintiff must be an "appellant" and the party defendant "appellee." The word "condemnation" had reference to the judgment in the

court below. For Jones v. Fullerton, see supra, n. 66. Ibid., 5 0 - 5 1 . 240 Ibid., 5 1 - 5 3 . 241 Ibid., 53-56. 239

THE SCOPE OF APPELLATE REVIEW

405

cordance therewith the colony laws and judicial practice had been in strictest conformity to the laws of England; that such extension of the laws of England and such judicial practice had been further enforced by Privy Council adjudications. It was further insisted that the terms of the J2d instruction referred to such appeals as were known to the laws of England and long used in the colony, that no appeals other than in cases of error in law had ever been brought in the colony until the instant case. Consequently, the instruction must have reference to appeals in matter of law, since the judges below were excluded from sitting on appeal. Although there were several species of appeals known to the law, yet examples were common to prove that carrying up a cause by writ of error was called an appeal. Whenever an appeal was made on matters of fact, the errors were corrected, not by judges, but by the inquest of a jury. The Colden construction would do violence to the true sense of both instructions by which constitutional jurisdictions and some judicial procedure as established in England were clearly intended to be transferred to the colony. Furthermore, such interpretation would be ruinous to the subject by rendering the ñrst trial useless, by delaying justice, by enhancing costs of litigation, and by opening the door to perjury on the second trial. 242 On January 1 1 , 1765, the lieutenant-governor required the opinion of the provincial council whether by the 32d instruction the King had directed the governor to allow appeals in all civil cases from the provincial courts of common law and whether by the same instruction the Governor and Council were directed to hear and determine such appeals. T h e council, in reliance upon the opinions of the judges and learned counsel, were unanimously of the opinion that no other appeal than on error was the intention or meaning of the crown by this instruction and that they could not take cognizance of any other appeal. 243 Colden, dissenting from this opinion, signified his reasons to the Board of Trade. If by "appeal" were understood "writ of error," the subject was restrained in causes below the ¿ 3 0 0 appealable minimum from that relief which the subject in England had by right in all causes above 40s. value, unjustly and contrary to law. 244 If "appeal" meant "writ of error," the local jurisdiction would not provide for security to be given on appeal, since it was provided for by act of Parliament. Further, execution would not be ordered suspended, since a writ of error itself suspended execution. In English writ of error proceedings the appellate system embodied a hierarchy of judicial skill; in N e w Ibid., 56-58. 29 MS Mins. N.Y. Council, 33; Rep. Forsey v. Cunningham, 29-30; 2 Journals General Assembly N.Y., 804-5; 7 Doc. Rei. Co/. Hist. N.Y., 696. 243

2

" 7 Doc. Rei. Col. Hist. N.Y., 696. Can this argument be taken to mean that the instruction applied only to "appeals," that as to writs of error there was no appealable minimum or one of only 40/?

4O6

THE SCOPE OF APPELLATE REVIEW

York the Governor and Council were manifestly less well equipped in legal learning than was the Supreme Court, but still they might be proper judges of the merits of a cause. If the practice of the courts at Westminster were made the law in the colonies, upon what practices there could the Governor and Council be made judges of the errors of the Supreme Court in New York? Or what writ could issue at New York to inhibit the Governor and Council, or to carry the case from there to the King in Council, the instruction directing no writ for this purpose ? Further argument was advanced from the context of the disputed instructional article. The 33d article permitted "appeals" to the King in Council in misdemeanor cases; it could scarcely be doubted that the "appeal" here extended to the whole merits, otherwise no judgment could be made whether the fine was excessive. The wording of this instruction— "you are likewise to permit"—indicated that the intention was the same in the preceeding instruction. However, the effect of this argument was vitiated by Colden's erroneous version of the language of the instruction. 245 Ultimately, all doubts were resolved by consideration of the probable reason for the instruction. Royal opinion being that it was unsafe to entrust the authority and rights of the crown to colonial courts in the last resort, an appeal on the merits to the King in Council had been reserved. Justification of this reservation readily appeared in the present opposition to "appeals," in which the judges had taken a leading part. Colden found the judicial situation comparable to that pictured by Lord Hale as existent in the county courts in England, with factions and alliances of bench and bar perverting administration of justice. 246 From this abstract discussion of the interpretation to be placed on the instruction, we return to the instant case. Having received no relief from the colony council, Cunningham's attorney, on January 23, 1765, petitioned that body for an appeal to the King in Council, for suspension of execution, and for assignment of counsel. On February 6 the provincial council allowed petitioner copies of the proceedings, but as the members were still of the opinion that no such appeal lay to the Lieutenant-Governor and Council, they apprehended that they were not authorized to direct further on the petition, Colden dissenting from this resolution. 247 Toward the end of February, Colden made the extreme proposal to his council that they dismiss all pending cases in error and return the records to the court below for further proceedings therein. Reasons in writing for Colden's opinion that the Governor and Coun245 Ibid., 6 9 6 - 9 7 . T h e instruction read: " Y o u are also to permit" ( 1 Labaree, Royal lnstructions, # 4 5 8 ) .

247

240

Rei. Col. Hist. N.Y., ]ohn Watts, 330.

7 Doc. Rei. Col. Hist. N.Y., 6 9 7 - 9 8 , 7 0 1 . Cf. Conduct of Cadwallader Colden, op. cit., 450—51, where remarks of William Smith, Jr., in his History of New York are turned against this antagonist.

29 MS Mins. N.Y. Council, 5 8 - 5 9 ; Rep. Forsey v. Cunningham, 6 6 - 6 7 . See also 2 Journals General Assembly N.Y., 805; 7 Doc. 7 0 6 - 7 ; Letter Book of

THE SCOPE OF APPELLATE REVIEW cil were not authorized by the royal instructions to take cognizance of cases in error were presented on March 27, 1765. 248 Needless to say, no action was taken upon this proposal. Popular clamor was aroused by representation of judges and counsel that the instruction in question was designed to alter the constitution and to abrogate trial by jury. 249 Colden, however, allayed Whitehall fears by representing that no case could be shown where jury trial would be prevented by the instruction, nor was it probable that there would be many appeals from Supreme Court causes.250 Colden thought that the people would discover after the initial excitement that no other security of their property against powerful factions existed. A recommended palliative was the removal from office of Chief Justice Horsmanden, Justice Livingston, and Attorney General Kempe, and the appointment of "fit persons," free from provincial attachments and provided with salaries sufficient to insure freedom from assembly influence.281 Following the publication of the proceedings in the cause in newspaper and pamphlet form, the agitation was kept alive by the writings of "The Sentinel" in the New-Yorl( Gazette; or, The Weekly Post-Boy.262 This commentator, identified in some quarters as William Livingston, elaborated the disadvantages inherent in the interpretation contended for by Colden, refuted Colden's arguments, and heaped ridicule upon their proponent.203 248 29 MS Mins. N.Y. Council, 70-72. Colden reasoned as follows: (a) By the law of errors in England the subject had the right to a writ of error in criminal causes, as well as in civil; but by instruction the Governor and Council could judge only in civil cases, (£) Bv instruction the Governor and Council had no authority in cases under £300 sterling, but in England the subject had the right to a writ of error in all cases above 4or. (c) If the instruction referred to writs of error, it would be superfluous to provide that security be given or that execution be suspended, (d) The word "condemnation" would be absurd in error proceedings, for no new judgment was given in error; the judgment below was either affirmed or reversed. (e) In all cases of error removal from inferior to superior court was by writ, but no writ could issue in the province to remove a cause before the King in Council. (/) In error, causes went before more learned judges; here the council were not more learned, but were more qualified to judge on the merits than regular juries, (g) In the only case removed before the King and Council a new judgment on the merits was given as in cases of appeal. -"> 7 Doc. Rei. Col. Hist. N.Y., 699. But Colden wrote that the objection to appeals was

largely confined to New York City, where landed and legal interests were strong; it was otherwise in the country, where the farmers had suffered from the domination of the great proprietors and the lawyers (ibid., 707). 250 Ibid., 707. The lieutenant-governor wrote that so far as he remembered there had not been six causes brought before the council either on appeal or in error in forty years. These figures are incorrect. He also asserted that in that time only one cause was carried by appeal to the King in Council, in which case the judgment of the Supreme Court was neither reversed nor affirmed as in error, but a new judgment on the merits of the cause given different from that of the Supreme Court. This statement is also incorrect 251 Ibid., 699-700, 703. 252 Horsmanden, C. J., to Governor Monckton, May 4, 1765, in Chalmers MSS, 4 New Yor\, 27; 2 Colden Letter Booths, 2, 4-5; 7 Doc. Rei. Col. Hist. N.Y., 709-10, 760-61, 768-69. The cause also enjoyed some notoriety in England; see Letters of Dennys De Berdt, 1757-70, 13 Pub. Col. Soc. Mass., 3 1 4 - 1 5 . 253 The Sentinel, No. I, was largely devoted to a savage criticism of the inhibitory writ scaled by Colden on Oct. 30 (cf. supra, p. 392). It also declared that there was no room for

4o8

T H E

SCOPE OF APPELLATE

REVIEW

T h e scene n o w shifts to W h i t e h a l l . O n J u l y 10, 1 7 6 5 , C u n n i n g h a m petitioned the K i n g in C o u n c i l for leave to appeal f r o m the S u p r e m e

Court

j u d g m e n t of the October, 1 7 6 4 , t e r m a n d f r o m the order of the L i e u t e n a n t G o v e r n o r a n d C o u n c i l w h e r e b y petitioner w a s denied admission to an a p peal, a n d that petitioner be a l l o w e d copies of all proceedings in the cause u n d e r s e a l . 2 5 4 T h e C o m m i t t e e , u p o n consideration, reported that it w a s not advisable to g r a n t the requested appeal to the K i n g in C o u n c i l f r o m the S u p r e m e C o u r t j u d g m e n t since such appeals should only be admitted f r o m the determinations of superior courts in the colonies, that the cause should be first carried to the L i e u t e n a n t - G o v e r n o r a n d C o u n c i l . It w a s therefore r e c o m m e n d e d

that

there should be an order to the g o v e r n o r to a l l o w an appeal to the C o u r t of A p p e a l s [ s i c ] , a n d if either party felt a g g r i e v e d there, to the K i n g in C o u n c i l . 2 6 5 T h i s w a s accordingly ordered o n J u l y 26 by the K i n g in C o u n c i l . 2 5 ® T h i s O r d e r in C o u n c i l s e e m i n g l y accepted the C o l d e n v i e w , but it is probable that " a p p e a l " w a s here used loosely. A f t e r a n unsuccessful application, R o b e r t C h a r l e s , N e w Y o r k agent, petitioned the B o a r d of T r a d e in S e p t e m b e r , c o m p l a i n i n g of the irregular interposition of C o l d e n a n d of his construction of the j i d instruction. Petitioner p r a y e d suspension of the ex parte o r d e r directing an appeal to the G o v e r n o r a n d C o u n c i l as a " C o u r t of A p p e a l s " until the merits of the petition w e r e f u l l y doubt as to the meaning of the instruction, that the Coldenite interpretation was forced for ulterior purposes (New-York. Gazette; or, The Weekly Post-Boy, # 1 1 5 6 , Feb. 28, 1765). The Sentinel, No. 2, compared the advantages of evidence given viva voce in the presence of the judge and jury of the vicinage with evidence taken out of court upon written interrogatories. The ability of governors to try cither matters of fact or of law was gravely questioned. Adoption of the proposed system would result in an inundation of perjury, the introduction of a litigious spirit, a great increase in the cost and delay incident to litigation. Both the Governor and Council and the Privy Council would be overwhelmed with appeals (ibid., # 1 1 5 7 , March 7, 1765). The Sentinel, No. 3, advanced that if an instruction had the force of law in a civil cause, there was no reason why it should not in criminal causes. To attempt to have a system whereby subjects were tried by judges dependent on the crown in all causes would be a wanton attack on the constitution (ibid., # 1158, March 14, 1765). The Sentinel, No. 5, contained a satirical letter signed Paracelsus Arecolus Philippus, Theophrastus de Hohenheim, M.D., in favor of ap-

peals from jury verdicts (ibid., # 1 1 6 0 , March 28, 1765). The Sentinel, No. 8, satirized the part played by John Coghill Knapp in the dispute (ibid., #1163, April 18, 1765). The Sentinel, No. 12, was devoted to showing the irrelevancy of an argument of Colden based upon parliamentary intent as manifested in 6 George I, c. 5 (ibid., # 1 1 6 7 , May 16, 1765). The Sentinel, No. 27, contained hints for a paper to be entitled "Analogy between Physic and Law; or, An Argument Proving That Every Doctor as Such Is an Able Lawyer"; a satire upon Colden (ibid., # 1 1 8 1 , Aug. 22, 1765). 251 PC 2 / 1 1 1 / 2 6 2 . Those opposing the introduction of appeals had already taken the cause to London in that they had prevailed upon several persons in New York to write to their correspondents in London and to transmit the papers printed in New York in order to create a public appearance there against appeals (7 Doc. Rei. Col. Hist. N.Y., 707). 255 PC 2 / 1 U / 2 8 9 . 256 PC 2 / 1 1 1 / 3 1 1 . For the reception accorded the conciliar order by the anti-Colden faction see Leiter Book °l lohn Watts, 390-91, 393.

THE SCOPE OF APPELLATE REVIEW

409

examined and such final order made thereon as was consonant with the common law of England. 2 " Shortly thereafter, on September 24, the Board of Trade made a representation to the Council Board on drafts of instructions prepared for Sir Henry Moore, recently appointed governor of New York. As to the 32d article, the Board represented that it appeared that from the reign of James II to 1753 liberty of appeal from inferior courts to the Governor and Council had been confined by either commission or instruction to "cases of error only." By the 1753 alteration the express words confining appeals to "cases of error only" were omitted, but it did not appear that the change operated in any colony to vary or to create doubts as to the former practice until the recent assertions of Colden. It did not appear from the office records what particular reasons induced the alteration, but it was conceived that it was intended to avoid ambiguity as to whether liberty of appeal extended to criminal causes. It was further conceived that confining such appeals to cases of error only was so absolute a principle of law and so well established by usage and constitution of the kingdom that it was thought unnecessary to point it out by express language in the instruction. However, to re-establish peace in the province and to quiet the subjects' minds the words heretofore inserted were restored, thus expressly confining appeals in civil cases to the Governor and Council to "cases of error only." 2 3 8 On October 3 the draft instructions for Governor Moore containing the alteration of the Board of Trade were referred by the Committee to the crown law officers.289 Shortly before this, agent Charles, in behalf of the New York Council and Assembly, had petitioned the Privy Council to the same effect as in his earlier petition, but with no appreciable result.2®0 Attorney General Yorke and Solicitor General De Grey, in their report of November 2, advised that no change be made in the instruction which might prejudice the pending appeal as an authoritative interpretation of the former instructional article. They were further of the opinion that the 1753 alteration did not vary the sense of the instruction as it stood previous to that time. The words "in cases of error only" appeared to have been struck out of the instructions as superfluous and improper. For, it was asked, in what cases could an appeal lie but "in cases of error only"? That is, error in law, upon the record of a judgment given in a court of common law, wherein according to English procedure the evidence of the facts upon which the jury gave their verdict did not appear, and errors both in law and fact upon the face of an interlocutory or decretal order of a court of equity, where the evidence was in writing and the court judges of both law and fact. The expression in the 37th article of the 1753 257

259

2

260

PC 1 / 5 1 . ™ 7 Doc. Rei. Col. Hiit. N.Y., 762-63.

PC 2 / 1 1 1 / 3 7 0 . PC 2 / 1 1 1 / 3 6 6 .

410

T H E SCOPE OF A P P E L L A T E

REVIEW

instructions to Governor Osborne, "of permitting appeals from any of the courts of common law in the said province," was clearly explained by the clause immediately following where the governor was directed " f o r that purpose to issue a writ in the manner which has been usually accustomed." Therefore, the custom and usage of the province, ever since its settlement, was the rule for construing the instruction and showing in any case whether a writ of error had been properly framed and issued. 2 6 1 This opinion obviously supported the views of the Supreme Court judges and utterly rejected the Coldenite interpretation. O n November 15 the Committee on the basis of the crown law officers' report ordered the Board of Trade to suspend the proposed alteration until the merits of the pending appeal had been determined. 2 6 2 O n November 22 the Board of Trade, agreeable to the Committee order, altered the said instruction and ordered the altered draft redelivered to the clerk of the Council. 2 6 3 Simultaneously action in the cause was taking place in N e w Y o r k . O n October 9, Colden laid before the colony council the July 26 Order in Council and a petition of Cunningham's representative praying admission and speedy hearing of the appeal, that further proceedings on the execution issued against appellant's bail be stayed, and that counsel be assigned for bringing on the appeal. 264 On October 15, when Colden put the question whether Cunningham should be admitted to his appeal, his council declared that the lieutenantgovernor should issue the writ. Thereupon, Colden issued an instrument under the colony seal directed to the justices of the Supreme Court, reciting the 32d instruction and its July 26 conciliar confirmation, enjoining further proceedings on the Supreme Court verdict and judgment, and directing the justices to cause the same to be before the council on November 26. Agent Waddel then petitioned the Supreme Court for admission of such appeal from both verdict and judgment; that the proceedings might be ordered laid before the council; that execution against appellant's bail be stayed; and that counsel be assigned to prosecute the appeal. 2 6 5 On October 22 Waddel was called upon by the Supreme Court to show his authority for presenting the aforesaid petition. Upon considering a power of attorney from Cunningham, the court 201

7 Doc. Rei. Col. Hist. N.Y.,

8 1 5 - 1 6 ; PC

1/51. 282 PC 2 / 1 1 1 / 4 0 6 . 2β3 JCTP, 1764-67, 226; PC 1 / 5 1 . It would appear that the instruction to Governor Moore at 7 Doc. Rei. Col. Hirt. N.Y., 764, is the rejected draft, since it contains the excised "in cases of error" clause. Moore was ordered to his government immediately, without waiting for his instructions; upon his arrival in the

colony he desired and received Monckton's instructions (ibid., 794). 264 29 MS Mins. N.Y. Council, 9 1 - 9 3 ; 2 Journals General Assembly N.Y., 805. For the effect of the conciliar order in the province see Letter Boo\ of John Watts, 390-91, 393; 2 Alpinwall Papers, 579; Chalmers MSS, 4 New York,, 20. 285 29 MS Mins. N.Y. Council, 93-94; 2 Journals General Assembly N.Y., 805.

THE SCOPE OF APPELLATE REVIEW

411

unanimously declared that the power of attorney gave no such authority; that even if it did, his prayer could not be complied with because no proper writ had been brought to authorize sending up the record; and finally, that the court knew of no power to assign counsel to transact business in a court where it had no jurisdiction. 298 In the next month, on November 12, the Chief Justice returned to the provincial council the instrument issued by Colden on October 15. It was endorsed to the effect that upon consideration the justices had found it impossible, as the law knew of no appeal from a verdict, to comply with the command, for the reasons previously given in the cause; but if the record alone was desired, it would be returned when a writ of error was sent t h e m . 2 " Apparently Cunningham made no further efforts, since Governor Moore stated the cause to be entirely finished before his arrival in the third week of November and the money paid. 268 On December 15 the assembly, upon a report of the Committee for Courts of Justice, came to several resolutions as to the attempt made to introduce appeals from the verdict of a jury. Maintaining that trial by jury was the right of the subject by law and essential to his safety, the assembly resolved that an appeal from the verdict of a jury was subversive of that right and that the crown could not legally constitute a court to take cognizance of any such appeal. It was then resolved that the late attempt to introduce such appeal was "illegal, an attack upon the right of the subject, and a most dangerous and mischievous innovation, tending to encourage litigiousness and delay, promote perjury, prevent justice, subject the people to arbitrary power, and ruin the colony." Further resolutions condemned Colden for his part in the attempt and lauded the Supreme Court justices, the council, counsel for Cunningham, and William Smith, Jr., for their part therein. Finally, it was declared the assembly's duty to represent to home authorities the illegality and dangerous tendency of the late innovation and to solicit that appeals in error might take a course for the future consistent with the ancient right of the House of Peers to correct all the subordinate courts of common law. 269 Colden characterized these resolves as dictatorially made without any judicial authority or time for deliberation on facts unfairly and falsely preambled. 270 By February 22, 1766, copies of the Board of Trade's representation and the crown law officers' opinion on the 32d instruction were received in the colony by Governor Moore. Satisfaction was general on hearing the determination MS Mini. N.Y. Sup. Ct. ]ui. (Rough). 1764-67, sub Oct. 22, 1 7 6 5 ; 2 Journals General Assembly N.Y., 805. 207 29 MS Mini. N.Y. Council, 1 0 1 ; 2 Journals General Assembly N.Y., 805.

288

7 Doc. Rei. Col. Hist. N.Y., 814. 2 journals General Assembly N.Y., 805-6. 270 7 Doc. Rei. Col. Hist. N.Y., 803; cf. 2 Colden Letter Books, 89-90, 4 5 3 - 5 7 . 269

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T H E SCOPE OF A P P E L L A T E REVIEW

of the Board in the matter, and the matter ceased to be a source of popular clamor. 271 The papers were read in council and ordered to be entered on March 22, 1766. 272 However, the indefatigable Colden continued to point out to the imperial authorities the danger of finality of general verdicts in cases in which the crown was concerned. The right of appealing on the whole merits was so essential to secure the dependency of the colonies and the rights of the crown, as well as private property, against powerful combinations that it well deserved the interposition of Parliament if necessary.273 Colden suffered further for his views when a pamphlet printed in London in his defense was secretly reprinted in New York and in October, 1767, charged to the Grand Jury in the Supreme Court. It was then presented as a "very vile, infamous, false and libellous reflextion" on the council, assembly, courts and law of the province. 274 Joint legislative investigation also took place. 275 THE AFTERMATH

Scarcely had the agitation aroused by Cunningham v. Forsey abated, when a case arose in New York which rather justified the dire forebodings of Colden. A dispute having taken place between one Captain John Campbell and John Van Rensselaer whether certain lands were vacant and available for crown grant to military officers, an additional instruction was issued in April, 1767, for the necessary directions to the proper law officer to commence such suits as might effectually decide the validity of the Van Rensselaer claims. In case judgment should be given in favor of these claims, contrary to the opinion of the prosecuting law officer, an appeal was to be prosecuted by that officer in the usual manner to the King in Council. 276 Immediately upon receipt of this additional instruction the Attorney General was directed to proceed in the cause with all possible dispatch; since formidable opposition was expected, two able counsel were desired to assist the law officer. 277 271

7 Doc. Rei. Col. Hist. N.Y., 814. 29 MS Mins. N.Y. Council, 103-8; 7 Colden Papers, 95-96. 273 7 Doc. Rei. Col. Hist. N.Y., 834; 2 Colden Letter Book.s, 1 1 6 - 1 7 . 274 2 Colden Letter Boo\s, 1 3 2 - 3 3 , 137-38, 147-48. 275 Ibid., 138-39, 143, 148-49, 154-55· 270 2 Labaree, Royal Instructions, # 8 7 9 . The claims of the Campbell faction were supported by Colden (7 Doc. Rei. Col. Hist. N.Y., 743; 2 Colden Letter Bool^s, 1 1 ) . No provision for an appeal was made in the Board of Trade representation on Campbell's petition (PC 1 / 5 1 ) ; the appeal provision was inserted by the Privy Council (PC 2 / 1 1 2 / 1 9 1 , 199, 2 1 6 ) . It is open to question whether the instruction 272

contemplated an immediate appeal from the court of original jurisdiction to the King in Council or an appeal with an intermediate hearing before the Governor and Council as in the usual case. The former interpretation would violate a conciliar procedural principle of entertaining appeals only from the superior colonial courts. See supra, p. 226. Yet the instruction governing appeals to the Governor and Council contained the confining "in all civil causes'" clause (1 Labaree, Royal Instructions, # 4 5 3 ) , and the intrusion action was criminal in nature. Note that the provision for appeals in cases of misdemeanors, another branch of criminal jurisdiction, made no mention of an intermediate hearing (ibid., # 4 5 8 ) . 277 7 Doc. Rei. Col. Hist. N.Y., 950.

T H E SCOPE OF A P P E L L A T E REVIEW Attorney General Kempe accordingly brought an information for an intrusion against Van Rensselaer in the Supreme Court. The trial commencing on October 25, 1768, extended through November 5, a great quantity of evidence being submitted. Justice David Jones sat alone for most of the trial, Justices Smith and Livingston being interested. 278 During the trial Kempe objected to several rulings excluding crown evidence and admitting evidence for the defendant. 279 At the close of his case Kempe asked the court to direct a special verdict, since it would be more satisfactory to know the opinion of all the justices and since the construction of the royal grant was a matter of law not proper for the determination of an illiterate jury. If the court conceived a special verdict unnecessary, then Kempe prayed a charge favorable to the crown. But Jones failed to direct a special verdict and charged the jury unfavorably for the crown. 280 Following a general verdict for the defendant and judgment thereon, 281 Kempe sent Jones three bills of exceptions to sign. 282 It had been questioned during the trial whether the crown was entitled to a bill of exceptions, on the ground that the Statute of Westminster II, c. 31, did not mention the King and did not extend to a criminal prosecution. 283 Nevertheless, Jones signed two relating to admissibility of evidence, but refused to sign the third which recited all the evidence, the crown requests for jury charges, the charge given, and the failure to direct a special verdict. 284 Misrepresentation of his directions was given by Jones as reason for this refusal to sign. 285 From a later report in the cause it appears that the bills of exceptions were for use on writ of error to the Governor and Council, not for direct appeal to the King in Council. 286 Following this unsatisfactory outcome Lieutenant-Colonel Robert Stewart, a colleague of Campbell, recapitulated the proceedings in a petition to the Board of Trade. Petitioner pointed out that a special verdict as requested would have brought the disputed points before the full court for their determination. Then, if judgment had been given contrary to the opinion of the Attorney General, 278 See MS Mint. N.Y. Sup. Ct. ]ud. (Engrossed), 7766-69, 557-62, 568-74. Horsmanden, C. J., sat for part of one day, Nov. 3 . The case is discussed at large in Goebel and Naughton, Law Enforcement in Colonial New York., 2 49 et seq. 278 MS Notes of Evidence with some notes of the arguments of counsel, on the trial of an information filed by the King against lohn Van Rensselaer, 2 - 3 , 19-20, in John Tabor Kempe MSS, Lawsuits. 280 Ibid., no pagination. See also a Feb. 10, 1773, report of Attorney General Kempe to the Governor and Council in the cause (Misc. MSS Claverack. [ N Y H S ] ) .

281 MS Mins. N.Y. Sup. Ct. fud. (Engrossed), 1766-69. 574. 282 See John Tabor Kempe MSS, Lawsuits sub nomine Van Rensselaer. 288 Ibid. 284 For the three bills of exceptions see ibid. 285 Jones to Kempe, Jan. 2 1 , 1769 (ibid.). Kempe in reply imputed the alleged misrepresentation to the faults of Jones' memory (Kempe to Jones, Jan. 27, 1769 [ibid.]). 286 Rep. Attorney General Kempe to Governor and Council, Feb. 10, 1773 (Misc. MSS Claverack. [ N Y H S ] ) .

4M

T H E SCOPE OF A P P E L L A T E REVIEW

petitioners would have been able to bring such judgment and the merits of the cause before the King in Council upon appeal by virtue of the additional instruction. But in the jury charge the judge, declining to proceed as requested, gave his ideas of the boundaries, and a general verdict was returned for defendant. Being thus precluded from bringing the merits of the cause before the King in Council, it was necessary to petition for relief otherwise.287 Nothing was made of the refusal to sign the third bill of exceptions. But the only Board of Trade report we have seen in the matter makes no mention of the complained-of conduct of the Supreme Court judges. 2ss From this discussion of Cunningham v. Forsey and its effects certain conclusions emerge. The case cannot be interpreted as a deliberate attempt of the English authorities to extend the scope of the review power of the Governor and Council, since the effort was solely of Colden's creation. The Board of Trade and the crown law officers declined to support Colden's interpretation, yet we must notice that the Lords Committee refrained from expressing any opinion until the matter came before it in a judicial capacity. Whether the Committee would have supported the Coldenite interpretation, an interpretation that coincided with some of its own expressed views as to the scope of appellate review, must remain a matter of conjecture. But credit for preventing the cause from coming before the Committee in a judicial capacity must rest with the New York Supreme Court. The case may be said to represent use of the common law to defeat efforts to extend conciliar jurisdiction, which inclined toward usage at variance with common law practice, into the colonies. The episode is one of the many facets of the struggle to maintain jury trial inviolate in the colonies. It also serves to illustrate the casualness with which imperial authorities drafted instructions which might effect hundreds of colonial causes. Cunningham v. Forsey had effects beyond the boundaries of New York. In Massachusetts it was used to support opposition to conciliar appeals in real actions.289 Hutchinson, in August, 1771, questioned whether there would be any difficulty in conciliar cognizance of an appeal in Otis v. Robinson, a ¿2,000 sterling judgment for assault and battery which depended wholly upon the question of evidence. He further questioned whether an appeal in an action of the same nature had not been dismissed. But Hutchinson felt that the charter provision would allow the appeal, making no capital of the different nature of the record in Massachusetts and in New York. 2 9 0 287 CO 5/1078/UU i l . Cf. ¡i MS Mini. N.Y. Council, 59 et seq., 69-70. 288 8 Doc. Rei. Col. Hilt. Ν.Y., 575. 289 22 MS Mass. Archives (Foreign Corres.,

'758-75), 544-

290 27 MS Mass. Archives (Hutchinson Letters, /770-74), 210. For the circumstances of this cause see Pennsylvania Gazette, # 1 1 2 7 ; Sept. 28, 1769.

T H E SCOPE OF A P P E L L A T E REVIEW

415

It should be noted that the attitude revealed in Cunningham v. Forsey toward appellate judgment on the merits was not common to all the continental colonies. An entirely different attitude is found embodied in a statute of the colony of Virginia. By a 1748 act it was enacted that if upon trial in the General Court of any appeal, writ of error, or supersedeas the judgment or decree appealed from should be reversed, the General Court should "enter such judgment, or make such decree thereupon, as should have been entered or made in the inferior court." 2 9 1 Although this act was disallowed,292 the same provision was again incorporated in a 1753 act.293 Of course, where the appellate jurisdiction was equitable, there was no clash with the New York view. The divergence as to the scope of appellate common law jurisdiction may be explained by the extensive Virginian use of special verdicts and agreed cases.294 A later North Carolina act of 1773 provided that if upon writ of error or appeal the judgment of any inferior court was reversed, the Superior Court should make such judgment as should have been made below.296 On the other hand, doubts and controversy as to the meaning of the appeal instruction were not confined to New York and South Carolina. In August, 1766, Governor Johnstone of West Florida wrote to the Board of Trade that on the appeal of one Bruce the question arose whether an appeal would lie "from the verdict of a jury" to the Governor and Council. Explaining his understanding that the point had been much agitated in Forsey v. Cunningham, the governor stated his opinion that such an appeal would lie by the royal instructions, but not by the common law. However, he begged the best information of the Board for his future conduct.298 Unfortunately there is no trace of a Board of Trade reply to this inquiry. In the recently acquired colony of Quebec some discussion also took place as to the proper appellate jurisdiction of the Governor and Council. In a February, 1765, report by the Attorney General to Governor Murray on the judicial establishment in Nova Scotia, as well as on the basis of the Quebec establishment, it was stated that the Governor and Council had an appellate jurisdiction in civil causes as to matters of law only.297 Since the same instruction as to appeals was in force in Nova Scotia as in New York, this opinion accepted the anti-Coldenite view. In 1769 the Quebec authorities were of the opinion that appeals should be only as they then were, of the nature of writs of error in England to correct mistakes of law, not to reconsider facts—unless 291

5 Hening, Stat, at Large Va., 467, 483. 4 APC, Col., p. 1 3 9 . - 0 3 6 Hening, Stat, at Large Va., 3 2 5 , 3 4 0 - 4 1 . 294 See 5 ibid., 478: 6 ibid., 356. See the cases of Burgess v. Hack (PC 2 / 9 4 / 2 9 3 ) ; Meade v. Thrustout (PC 2 / 9 8 / 2 7 ) ; Starke v. Thrustout

(PC 2 / 9 9 / 1 2 3 ) ; Jones v. Porter, Case of Appellant (L.C., Law Div.) ; McCarty v. McCarty, Case of Appellant (ibid.). 295 Laws of North Carolina ( 1 7 7 3 ) , 5 1 1 , 5 2 1 . -•»β CO 5 / 5 7 5 / B 6. 97 = CO 4 2 / 2 / 6 0 1 .

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settled by judges without juries. 2 9 8 In 1777 an ordinance was passed in Quebec giving the Governor and Council power to correct all errors, both of law and of fact on civil appeals, the use of juries in the courts of original jurisdiction having been abolished. 209 Under this ordinance Chief Justice Peter Livius sought to introduce the practice of admitting new evidence upon appeal, but the majority of the judges refused to acquiesce in this innovation. 300 Richard Jackson, upholding the majority, was of the opinion that it was fitting that the council, however composed, should examine errors of law only, taking the facts as stated in the transcript transmitted by the court below. It was represented that great mischief often arose when parties were suffered to aid a defective case by new witnesses or by a re-examination of those previously examined, although it was admitted that a more perfect knowledge of the country might afford reasons for admitting fresh evidence. 3 0 1 Thereupon, Governor Haldimand was instructed by the crown to prohibit the council f r o m entering into new evidence or from re-examining evidence previously taken. 3 0 2 But the instruction was not well received in the province. 3 0 3 W e have discussed at such length the various elements entering into a definition of the Council's precise function when it reviewed a cause, not only because this has appeared essential for the understanding of much that would otherwise seem mere dull technicality, but also because the efforts of the Committee were the first real attempt of English officials to grapple with the error problem since the enactment of the Statute of Westminster II. A s has been indicated, the amorphous character of the Council and the lack of well formulated policies consistently carried out prevented the achievement of a real and clear-cut reform of old methods. Furthermore, the predominance of the notion that imperial interests were best served by using the common law as a standard to which the plantations should as far as feasible conform, operated to defeat any critical appraisal, let alone overhauling of outmoded particulars of the common law system. Against this predetermination even the admittedly broad equity powers of the Council were unavailing to produce new forms of review available in all cases. A n d even if there had been clear vision and singleness of purpose, the episode in N e w Y o r k was itself sufficient warning of ultimate frustration. 298

301

299

302

ι Doc. Rei. Const. Hist. Canada, 3 6 1 . 2 ibid., 680. Cf. the wider powers in the 1 7 7 5 draft of the ordinance (2 ibid., 659). 300 See Neatby, Administration of Justice under the Quebec Act ( 1 9 3 7 ) , 67-70.

303

CO 42/9/G 19. 2 Doc. Rei. Const. Hist. Canada, 706. 2 ibid., 707-8, 7 1 8 - 1 9 .

VII APPEALS FROM ROYAL COMMISSIONS we have dealt with the regulatory and procedural aspects of what may be described as the ordinary appellate jurisdiction of the Privy Council as the court of last instance in the judicial hierarchy of the several dominions of the crown. There remains to be considered the jurisdiction which was exercised exceptionally, in the sense that it depended upon particular commission. The exercise of this power was unusual, since it involved controversies between units which were politically independent of each other, but were in some wise in subjection to the crown. From the point of view of the development of public law the situation was peculiarly interesting in that none of the litigants possessed attributes of full sovereignty, and although the crown, in the case of colonies, continually referred to them as "jurisdictions" in official communications, the expression was obviously not used in its common law sense, but had implications both factual and legal which ran beyond the accepted usage of English courts. The situation was further complicated by the circumstance that by the private law tests which governed English thinking certain units had a recognizable status as corporations or as feudatories, whereas others and notably royal colonies such as New York and Virginia, were impossible to fit into existing categories, being more than ancient demesne and peculiarly enfranchised, but without the usual muniments thereof. In the case of Indian tribes, there was likewise no available precedent. The medieval conception that the King was perpetually at war with infidels had sufficed to found the crown's right to the soil by conquest, but it was otherwise inadequate, since the realities of colonial administration soon disclosed it to be prudent to recognize some sort of status in the tribes and that, for the safeguard of the crown's own property rights, the original occupants had to be protected.

U P TO THIS POINT

There is little evidence that the questions just outlined were subjected to considerable pondering or that crown law officers were aware of the fact that the colonization of America had created new problems of public law. Furthermore, since the King's writ did not run in partibus transmarinis, the courts at Westminster rarely had to grapple with this confusing matter. It was accordingly left to the fumbling of administrative officials. This meant, of

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course, that no clear-cut solution was ever reached, if, indeed, in those quarters it was thought necessary or desirable. The prerogative of the crown over its overseas dominions was sufficiently large and unrestrained for long-continued evasion of definition to be feasible. The controversies which we are about to discuss all related to disputed boundaries, a subject matter of the greatest jurisdictional significance, and the parties in the several causes, with one exception, were of equal capacity. The exception was the case between the Mohegan Indians and the colony of Connecticut, once described as "the greatest cause that ever was heard at the Council Board." 1 This litigation, which dragged on for decades, is properly considered in connection with the intercolonial boundary disputes, since the plaintiff tribe was recognized to possess attributes of internal sovereignty sufficient at least to maintain and prosecute an action. Before discussing the specific cases, let us examine the basis of the jurisdiction. There were various available choices. In the first place, there was the possibility that the Privy Council possessed the power to hear a cause originally. In a controversy, for example, between two proprietors enfeoffed through the medium of charters granting palatine powers, the ancient precedents which made the Council a forum for tenurial disputes between tenants in capite were conceivably applicable. Some precedent existed for the exercise of original jurisdiction in the November, 1685, settlement of the boundaries between Pennsylvania and Maryland proprietaries. But in this case the judicial element was somewhat obscured by counter-contentions that the determination was made by the agreement of the parties, and ex parte, as well as by the fact that the crown was virtually a party.2 There was, secondly, available the special commission, an implicit waiver of direct conusance, but by the reservation of appeal an adequate medium for maintaining final judgment over the controversy. We have already seen that this device was used in the Pawtuxet purchase claims where the domestic corporation analogy was intimated to be the basis of jurisdiction.3 There was a much stronger precedent in the case of the Channel Islands, stronger chiefly because it had the unqualified certification of Sir Edward Coke,4 whose authority was highly regarded in the colonies. Nevertheless, when the commission was again used in the 1

See the statement of solicitor Thomas Life (3 Trumbull MSS, 76 a, b). For accounts of the controversy, see Shepherd, History of Proprietary Government in Pennsylvania (1896), 1 1 7 - 3 1 ; Ε. Β. Mathews, History of the Boundary Dispute between the Baltimores and Penns Resulting in the Original Mason and Dixon Line; Report on the Resurvey of the Maryland-Pennsylvania Boundary Part 2

of the Mason and Dixon Line ( 1 9 0 9 ) , 1 3 8 - 5 4 . For the hearings before the Lords Committee of Trade and Plantations and the November 1 3 , 1685, Order in Council see The Breviate in the Boundary Dispute between Pennsylvania and Maryland, 16 Pa. Archives (2d ser.), 3 9 4 95, 400-406. 3 See supra, p. 1 2 1 et seq. 4 Fourth Institute, 286.

APPEALS FROM ROYAL COMMISSIONS Mohegan case (1704), it was justified on the ground that in the absence of excluding charter provisions the King might erect a court within the colony, reserving an appeal. 0 There was, furthermore, the possibility of directing that actions be brought in provincial courts to try titles and allowing the causes to come before the Council in the ordinary course of appeal. Finally, the Council could allow the colonies to negotiate directly, reserving a power of ratification.® It should be observed that as to the general question of boundaries no single method of settlement became of course, for in a number of instances the problem did not reach the height of real controversy capable only of judicial settlement.7 Moreover, even the existence of three early precedents—the Pennsylvania-Maryland settlement and the Pawtuxet and the Mohegan commissions—does not seem to have settled the minds of British officials respecting the proper mode of justiciation. Thus, in 1724, when Attorney General Philip Yorke was consulted concerning the settlement of the long-standing boundary dispute between the Baltimore and Penn proprietaries, he failed to enumerate the commission with appeal reserved as a possible procedural device. Yorke conceived that the Privy Council could only take cognizance of causes concerning the plantations by way of appeal, that it possessed no original jurisdiction. Since the controversy in question was between the proprietors of different provinces, he did not see how it could be brought before the Council by appeal. Complaint to the King in Council of encroachment and adjustment before the Board of Trade was suggested as a possibility. As to proceed0

See infra, p. 425. See 2 Brodhead, History Stale of New York, (1874), 388, 4 1 2 ; 4 Doc. Rei. Col. Hist. N.Y., 628. As early as 1701 it was proposed, "that by some General Law, to be binding on all the Colonies on the Continent, a certain method be established, 1. To decide all Controversies between Colony and Colony." See An Essay upon the Government of the English Plantations on the Continent of America (ed. L. B. Wright, 1945). 47· 7 A Connecticut-Massachusetts boundary' dispute was settled in 1 7 1 3 - 1 4 by commissioners from both colonies (Bowen, Boundary Disputes of Connecticut [ 1 8 8 2 ] , 58). A New YorkConnecticut controversy was terminated by passage of a 1 7 1 9 act in New York settling the boundary (1 Col. Laws N.Y., 1039); this act was confirmed by the King in Council (2 Report of the Regents of the Univ. on the Boundaries of the State of N.Y., comp, by D. J. Pratt, 1884, 299—300) without objection from Connecticut (/CTP, 1J22/3-IJ28, 41). A 6

Connecticut-Rhode Island controverted boundary was settled by 1727 crown approval of an agreement between the colonies (3 APC, Col., # 4 ) . In the same year a Virginia-North Carolina dispute was settled by ratification by the King in Council of an agreement between the governors of the respective colonies (ibid., # 1 0 8 ) . The boundary between North and South Carolina was also settled in 1 7 2 9 - 3 0 in the same manner (3 Col. Ree. No. Car., 1 2 4 25; 2 Labaree, Royal Instructions, # 9 7 6 - 7 9 ) . Cf. Skaggs, The First Boundary Survey between the Carolinas, 12 No. Car. Hist. Rev., 2 1 3 - 3 2 ; 15 ibid., 3 4 1 - 5 3 . Despite several appointments of commissioners, the boundary between Massachusetts and New York never was settled prior to the Revolution (2 Rep. Reg. Bonn. N.Y., 88 et seq.). The dispute between Pennsylvania and Connecticut over the Susquehanna lands also remained unsettled (Boyd, The Susquehanna Company: Connecticut's Experiment in Expansion, Pub. Tercentenary Comm. Conn.

11935]. 35-42)·

A P P E A L S F R O M R O Y A L COMMISSIONS ing in the English courts, Yorke was of opinion the common law courts could not exercise jurisdiction. If a point of equity were involved, the Chancery Court might take cognizance and compel the parties resident within the realm to perform its decree.8 Later in 1745, in a chancery decision in the same controversy, Yorke, then Lord Hardwicke, appears to have modified his opinions, for he stated that this is a question between feudatory Lords, proprietors of provinces: And concerning not only their private interest, but the rights of government and the right of private persons, and has been well compared to the case of the Lords marchers. If a private question arose between tenants there, it was determined in the court of the marchers, on which a writ of error lay in the King's Bench, being dependant on the crown of England; and on that account, all disputes between lords marchers were determined originally in the King's Bench, as the place where the writs of error in private affairs lay. So here the disputes of private persons in the provinces are determined in the courts of the province, on which a writ of error by way of appeal lies before the King in Council. Therefore questions between proprietory lords, in analogy to the ancient law of the marchers must be determined before the King in Council, and always is so, notwithstanding the statute of 16 Charles I which restrains the power and jurisdiction of the Privy Council . . .9 The possibility of original jurisdiction in the Council on feudal theory was clearly intimated. In a 1750 chancery decision in the same cause Lord Hardwicke reaffirmed this principle and analogy. 10 These views of Hardwicke were later embodied by Blackstone in his monumental work. 1 1 In 1774, in a dictum in Fabrigas v. Mostyn, Lord Mansfield declared that "whenever there is a question between two provinces in America, it must be tried in England by 8

Dulany Papers, Box 4, # 8 . and John Willes were of the matter could be setded only in Council, but were silent as of cognizance (ibid.).

Clement Wearg opinion that the before the King to the procedure

9 Penn v. Lord Baltimore ( R i d g e w a y , Cases temp. Hardwicke 3 3 2 , 3 3 4 - 3 5 ) . 10 P e n n v. Lord Baltimore (1 Vesey Sen. 444). Hardwicke stated that "it is certain, that the original jurisdiction in cases of this kind relating to boundaries between provinces, the dominion, and proprietary government, is in the King and Council: and it is rightly compared to the cases of the ancient Commotes and Lordships Marches in Wales; in which if a dispute is between private parties it must be tried in the Commotes or Lordships; but in those disputes, where neither had jurisdiction

over the other, it must be tried by the King and Council" {ibid., 4 4 6 - 4 7 ) . Cf. the notes on the argument in Add. MS, 3 6 , 1 7 9 / 1 3 8 . Further discussion of the original jurisdiction of the King in Council over dominions of the crown outside the realm is found in Earl of Derby v. Duke of Athol (1 Vesey Sen. 202); Bishop of Sodor and Man v. Earl of Derby (2 ibid. 3 3 7 ) . 1 1 ι Commentaries, 2 3 1 . In the notes on the Committee hearing of the claims of the Earl of Cardigan et al. as representatives of the Duke of Montagu to the islands of St. Vincent and St. Lucia it was alleged that the "original jurisdiction of your Lordships in America and the West Indies is undoubted upon the limits of colonies, proprietory rights" (Add. MS, 36,219/1).

A P P E A L S F R O M R O Y A L COMMISSIONS analogy to what was done with respect to the seigniories in Wales being tried in English counties." 1 2 Despite the earlier settlement of the Pennsylvania-Maryland boundary, 13 recognition of the original jurisdiction of the Privy Council in the eighteenth century as a procedural possibility came late, 14 so that royal commissions with appeals reserved were employed in the majority of the judicial settlements of disputed intercolonial boundaries. In 1758 we find Ferdinand John Paris, able solicitor in colonial matters, declaring that issuance of a commission was "the only legal method" of settling the New York-New Jersey boundary controversy and "always practiced in such cases." 1 5 It was even questioned whether the King in Council could demarcate a temporary boundary line pending final determination by commission proceedings and appeal therefrom. 1 6 Yet in July, 1764, the King in Council demarcated the boundary of New York and New Hampshire in original "judicial" proceedings. 17 Later, in 1773, it was alleged that "in every question of boundary between two colonies, the King, in Privy Council, exercises original jurisdiction on the principles' of feudal sovereignty. There can be no other tribunal." 1 8 In the N e w York-Massachusetts boundary quarrel Lieutenant-Governor Colden of the former province advocated an alternative method of settle12

20 Howell, State Trials, 82, 230. 5 Md. Archives, 455-56, 458-59. 14 See 21 MS Mass. Archives (Foreign Corres., ' 7 5 1 - 5 8 ) , 635, 637. 15 2 MS N.Y.-N.J. Boundary Papers, 1 5 . 16 Lieutenant-Governor Delancey o£ New York writing to the Board of Trade in July, 1757, in re the boundary dispute between Massachusetts and New York stated: "But as the sueing out such commission in Great Britain, the carrying it into execution here and getting the merits finally determined upon appeal to his Majesty must inevitably take up much time, during which many disorders may be committed, it seems to me it would be a great and apparent defect in our constitution, if the King, who is the fountain of justice and the great conservator of the peace among his subjects could not legally interpose in cases of this kind by fixing some temporary line of jurisdiction, so as the contending parties might in the mean time know where to resort for justice, and to what authority they were to submit" (7 Doc. Rei. Col. Hist. N.Y., 274). But agent William Bollan of Massachusetts expressed doubts whether such a temporary line could be established (21 MS Mass. Archives [Foreign Corres., 1751-58], 635). 13

17

4 Doc. Hist. N.Y., 355; 4 APC, Col., # 5 5 9 . Cf. Fry, New Hampshire As a Royal Province, 265-74. I ' was later stated that the claims "came judicially before his Majesty" ( 1 Rep. Reg. Boun. N.Y. [ 1 8 7 4 ] , 80). In view of the fact that there was no hearing of the claimants before the Board of Trade, it would appear that the proceedings were administrative (viz., a naked exercise of prerogative), rather than judicial. 18 A State of the Right of the Colony of New York, with Respect to Its Eastern Boundary on Connecticut River ( 1 7 7 3 ) , 19. It was also stated "that though, in every contest between two colonies, the King in Privy Council, exercises original jurisdiction; yet, the boundary as in the present case, being determined, and out of the question; private property, and the claims of individuals, are cognizable before the ordinary judicatories, and can only be carried up to the throne, by appeal from the errors of the judges" ( A Narrative of the Proceedings Subsequent to the Royal Adjudication, Concerning the Lands to the Westward of Connecticut River, Lately Usurped by New-Hampshire [ 1 7 7 3 ] . 26).

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ment. T h i s was for a royal direction for the issuance of writs of intrusion b y the N e w Y o r k courts, w i t h Massachusetts pleading to the jurisdiction, so that the matter m i g h t be determined upon appeal in E n g l a n d . 1 9 Settlement by appeal to E n g l a n d f r o m judgments in local ejectment actions was regarded as the proper method for settlement of conflicting Pennsylvania and C o n necticut Susquehanna claims. 2 0 A d j u d i c a t i o n in this manner would depend upon the action of the parties, 2 1 but it was advanced that as a matter of prerogative a commission could issue for settlement of any intercolonial boundary dispute, regardless of the volition of the parties. 22 In no case, however, w a s this alternative procedure actually employed to definitive settlement. In conclusion, it can be said that of the procedural alternatives available to the C o u n cil—original adjudication by the K i n g in Council, conciliar appeal from the j u d g m e n t of a colonial court, and issuance of a commission under the Great Seal w i t h an appeal reserved to the K i n g in C o u n c i l — o n l y the last was important.

THE M O H E G A N

INDIANS V . C O N N E C T I C U T

W i t h this discussion of the jurisdictiorial basis, let us examine the specific cases. T h e first cause to occupy our attention is the prolonged controversy between the M o h e g a n Indians and the colony of Connecticut. 2 3 T o understand the issues involved in this dispute it is necessary to trace at some length the relations of the M o h e g a n s and the colony. In 1637 the English, settled in Connecticut with consent of the Indians, conquered the indigenous Pequots with the assistance of renegade Uncas and his followers. Allegedly as a reward for this aid, Uncas was recognized by the English as sachem of a distinct tribe, the Mohegans. T h e colony later asserted that by this conquest the English became possessed of an absolute property in the lands of the subjugated abo-

20

Jan. 8, 1756 (Paris MSS, Κ 2 7 ) ; Paris to J. Alexander, March 13, 1756 (ibid., Κ 2 9 ) ; Paris to William Alexander, Feb. 1 1 , 1758 (2 MS N.Y.-N.J. Boundary Papers, 15). Cf. W . A l e x ander to Governor Bernard, Feb. 12, 1758 (ibid., 18).

In this connection see Jones, Vermont Maying ( 1 9 3 9 ) , 205-8.

T h e history of the controversy has been inadequately related in several places; see J. W . De Forest, History of the Indians of Connecticut ( 1 8 5 2 ) , 303-42, 4 4 7 - 6 4 ; ι T r u m b u l l , History of Connecticut ( 1 8 1 8 ) , 412, 4 2 1 - 2 7 ; Beardsley, The Mohegan Land Controversy, 3 Papers N e w Haven C o l . Hist. Soc., 205-25; Washburne, Imperial Control of Administration of Justice, 1 0 3 - 6 ; Burns, The Colonial Agents of New England ( 1 9 3 5 ) , 7 5 - 7 9 .

CO 5 / 1 0 7 0 / O O 35. T h i s solution was also urged for conflicting N e w Y o r k and Quebec claims ( A State of the Right of the Colony of New York. with Respect to Its Eastern Boundary on Connecticut River [ 1 7 7 3 ] , 2 7 ) . 19

10 MS Penn Letter Books, 13, 19, 27, 33. But Connecticut was advised by counsel to apply for the appointment of commissioners with the usual power of appeal ( W m . Smith, An Examination of the Connecticut Claim to Lands in Pennsylvania [ 1 7 7 4 ] , 8 9 ) . It therefore pressed for this method of solution of the problem ( 1 1 MS Penn Official Corres., 7772-75, m ) . 21

in the

22

See Ferdinand John Paris to J. Alexander,

23

APPEALS FROM R O Y A L COMMISSIONS rigines, but the Mohegans laid claim to the status of an independent nation existent even prior to the Pequot hostilities.24 In 1640 Uncas, allegedly as a gesture of friendship, granted to the Governor and Magistrates all the tribal lands excepting those cultivated or improved. 25 The Mohegans later not only advanced that this deed was merely one granting pre-emptive rights but also challenged its authenticity. ϊβ In 1659 Sachem Uncas and his brother Wawequa granted to Major John Mason, a principal officer of the colony, all the Mohegan lands. The colony alleged that this grant was made to obviate objections arising from ascertainment of the reserved lands in the 1640 grant in making application for a royal charter,27 while the tribe represented the grant to be in the form of a trust to prevent injurious alienations by individual Mohegans. 28 In 1660 Mason, presumably to facilitate the negotiations for a charter, surrendered to the General Court jurisdictional power over the lands vested in him in 1659, reserving sufficient planting grounds for the Mohegans and farm lands for himself. Whether this grant of jurisdiction constituted a grant of the lands themselves proved another controversial point. 29 In 1661 Uncas and his sons confirmed the 1659 grant to Mason, the confirmation according to the colony inuring only to the benefit of the colony. 30 All the native rights having been allegedly acquired by the colonists, in 1662, the lands in question were granted to the Governor and Company by a charter from Charles II. : n In 1665 Uncas and two other sachems confirmed the former grant of their lands to Mason and covenanted not to dispose of any lands without consent of Mason and his heirs. The colony termed this deed an imposition by Mason on the ignorance of the Indians in leading them to believe they retained any rights in the land. 32 This confirmation was also explained by the colony as a conciliatory act made necessary by circumstances, not a recognition of the invalidity of former grants. 33 In 1671 Mason entailed a tract of land in the north parish of New London, later known as the "sequestered lands," in Uncas, purportedly to prevent alienation even with con24 Case of the Respondents, the Governor and Company of the Colony of Connecticut ( 1 7 7 0 ) , ι ; Case of the Respondents, the Landholders ( 1 7 7 0 ) . 1 ; Case of the Appellants, the Mohegan Indians (1770), 1 - 2 . All cases in the Columbia University Law Library. 25 Case of Respondents (Governor and Company), 2; Case of Respondents (Landholders), 2. 26 Case of Appellants, 24. 27 Case of Respondents (Governor and Company), 2; Case of Respondents (Landholders), 2. 28 Case of Appellants, 2; MS Conn. Archives, 2 Indians, # 2 7 7 c, d.

29 Case of Respondents (Governor and Company), 2 - 3 ; Case of Respondents (Landholders), 2; Case of Appellants, 2; MS Conn. Archives, 2 Indians, # 2 7 7 d, e. 30 Case of Respondents (Governor and Company), 3; Case of Respondents (Landholders), 3; MS Conn. Archives, 2 Indians, # 2 7 7 e, f. 31 Case of Respondents (Governor and Company), 3 - 4 . As to the Mohegan allegations of the suggestions upon which the charter was obtained, see MS Conn. Archives, 2 Indians, # 2 7 7 f· 32 Case of Respondents (Governor and Company), 5; Case of Appellants, 3. 33 MS Conn. Archives, 2 Indians, # 2 7 7 g, h.

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sent of Mason or his descendants.34 Ten years later the colony entered into a league with the Mohegans whereby Uncas resigned the tribal lands to the disposition of the General Court and covenanted to refrain from grants without the colony's consent. The colony alleged that this league was intended to preserve friendly relations, 35 while the Indians argued that the league only granted pre-emptive rights to the colony. 36 In March, 1683/4, Oweneco (Owaneco), son of Uncas, conveyed all his rights in the "sequestered lands" to the Mohegan tribe. 37 The first of the grants infringing upon any of the three tracts claimed by the Mohegans—the "sequestered lands," a parcel north of Lyme, and the Mohegan "hunting grounds"—was made by the colony government in 1687 to the town of Lyme. 3 8 In 1698 grants were made by the colony to Governor John Winthrop, Gurdon Saltonstall, and others of acreage within the "sequestered lands." In the next year a great part of the Mohegan "hunting grounds" was included within a grant to the new township of Colchester. The bounds of this grant were increased in 1703, and in the same year all the "sequestered lands" were included within a grant to the township of New London. 39 Several additional transactions afforded variant interpretations. In 1692 the Governor and Company ordered upon petition of Oweneco that his father's lands might be confirmed to petitioner and that they might not be alienated without consent of Samuel Mason. But the colony insisted that this action did not subject Oweneco to the absolute will of Mason but left that guardian still subject to the colony's control.40 A 1699 grant from Oweneco to Colchester of all the Mohegan "hunting grounds" was assailed as obtained for insufficient consideration, without Mason's consent, while the grantor was intoxicated. 41 There are different versions of the genesis of the Mohegan application to the English authorities for relief from the actions of the colony. It was asserted by the tribe that they had been reduced to distress by gradual disseisin and that frequent applications to the Governor and General Assembly for relief were fruitless. 42 The colony maintained that the groundless complaint originated in attempts of Nicholas Hallam, Joseph Dudley, and other foes to discredit the colony in the eyes of the imperial authorities.43 At any rate, in 34 Case of Respondents (Governor and Company), 5; Case of Appellants, 3. Cf. MS Conn. Archives, 2 Indians, # 2 7 7 h. 35 Case of Respondents (Governor and Company), 6. 36 Case of Appellants, 4-5. Cf. MS Conn. Archives, 2 Indians, # 2 7 7 i, j. 37 Case of Appellants, 5. 38 Case of Appellants, 6; Case of Respondents (Governor and Company), 7.

39

Case of Appellants, 6-7; Case of Respondents (Governor and Company), 7-8. 40 Case of Respondents (Governor and Company), 7. Cf. Case of Appellants, 6; MS Conn. Archives, 1 Indians, # 2 7 7 m, n. 41 Case of Appellants, 7; Case of Respondents (Governor and Company), 7. 42 Case of Appellants, 7. 43 5 Winthrop Papers, 3 Mass. Hist. Soc. Coll. (6th ser.), 214, 254, 276-77.

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425

1703 Oweneco on behalf of the Mohegans petitioned the Queen in Council, setting forth that by order of the General Court the tribe had been deprived of a tract of land reserved to them by treaty, that application for redress had been made in vain to the Connecticut government. It was prayed that the matter be referred to Governor Dudley of Massachusetts for inquiry and report and that in the interim Connecticut be ordered to permit the Indians peaceably to enjoy their lands. 44 In a later petition Nicholas Hallam proposed, despite the absence of any charter reservation, that a royal commission issue to impartial persons in Connecticut or adjacent colonies to inquire into and determine the matter and to restore the Indians to possession in case of wrongful disseisin.45 Upon query of the Board of Trade, Attorney General Northey stated that it did not appear that the lands claimed by the Mohegans were intended to pass to the corporation under the charter. In the absence of excluding words in the charter the Queen might lawfully erect a court within the colony to do justice in the matter, reserving an appeal to the Queen in Council. 46 A commission was accordingly advised to issue to Dudley and others from the New England colonies.47 Such commission under the Great Seal thereupon issued on July 19,1704, to Governor Dudley and ten others to examine into the matters complained of and into any injuries offered the Indians, and after hearing the parties to determine according to justice and equity. Liberty to any parties aggrieved to appeal from the commission determination to the Queen in Council was reserved, upon giving sufficient security to abide the determination.48 Before any action was taken under the commission, the colony, in October, 1704, granted all the "sequestered lands" to the town of New London, reserving to the Mohegans all rights to land not acquired by the English.49 Although the General Court was ignorant of the powers granted to the 44

CSP, Col., 1702-3, # 1 3 5 3 . Cf. a supporting affidavit of Nicholas Hallam (ibid., 1704-;, # 1 1 ) and the reference to answer the complaint to Sir Henry Ashurst, the Connecticut agent (ibid., # 1 3 ) . 45 Ibid., # 5 6 . i6 Ibid., # 5 8 , 146. Compare the 1742 comment of Jonathan Law upon the reasoning in granting the commission (1 Law Papers, 11 Conn. Hist. Soc. Coll., 34-35). 47 CSP, Col., 1704-5, # 1 7 1 . 48 Case of Respondents (Governor and Company), 8-9; 2 APC, Col., # 9 2 5 . The commission is set forth in Governor and Company of Connecticut, and Moheagan Indians, by Their Guardians; Certified Copy of Boo\ of Proceed-

ings before Commissioners of Review, 174Ì (London, 1769), 24-25 (hereinafter referred to as Proc. Conn. v. Mohegans). The commission as drafted by the Board of Trade was only pro hac vice, but was altered to a standing commission by Northey to conform with the Order in Council (CSP, Col., 1704-5, # 1 9 9 200). It was alleged by the colony that many of those joined in the commission were persons whose interest it was to judge in favor of Oweneco, since they held land from him (5 Winthrop Papers, 304; CSP, Col., 1704-5, # 9 5 5 ) · Cf. ι Trumbull, op. cit., 424. 49 Case of Respondents (Governor and Company) , 9 ; Case of Appellants, 7.

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A P P E A L S FROM R O Y A L COMMISSIONS

commission, it appointed a committee to appear before the commissioners. This committee was instructed to show the unreasonableness of the Mohegan claims if the court were one of inquiry, but to protest and withdraw if judicial determination of titles was attempted.50 When the royal commissioners assembled at Stonington, Connecticut, in August, 1705, the colony representatives, perceiving the latter intent, protested against the legality of such judicial determination. It was insisted that such action was contrary to law, to the royal intent, to the colony charter, and to the rights of subjects throughout the dominions. 51 Notwithstanding this objection and some interference with the proceedings, the commissioners proceeded to hear the complaint ex parte. On August 24,1705, the commissioners, accepting in toto Mohegan interpretation of the above events, gave judgment that Oweneco and the Mohegans be restored to possession of four tracts of land of which they had been unjustly deprived, with costs. The tracts were the "sequestered lands," or planting grounds, the tract north of Lyme, the Mohegan "hunting grounds," and a planting ground called Massapeage within N e w London township. 52 However, Dudley thought a further royal command necessary to enforce the judgment; in fact, the judgment was never executed. 53 50

ι Trumbull, op. cit., 422. For the letter notifying the colony of the commission and enjoining obedience thereto see CSP, Col., •704-5. # 1 8 1 . Case of Respondents (Governor and Company), 9; ι Trumbull, op. cit., 422-23; CSP, Col., 1704-5, # 1 3 1 2 . It was also a source of complaint that Dudley summoned subjects by sheriffs of his own appointment and that the lands of some of the summoned subjects were remote from the lands mentioned in the complaint (5 Winthrop Papers, 305). At a later date counsel William Samuel Johnson wrote that "the statute of Charles I we conceived prohibits the erecting any such court, and the crown was also stopped by the charter from claiming any such jurisdiction within the colony" (MS Conn. Archives, 2 Indians, 51

#277 52

o).

Case of Respondents (Governor and Company), 9—11 ; CSP, Col., 1704-5, #1312, 1 3 1 2 i. Costs amounted to ¿ 5 7 3 / 1 2 / 8 (1 Trumbull, op. cit., 424). The conduct of Connecticut toward the commissioners was included in the charges leveled by the Board of Trade against the charter governments (CSP, Col., ¡706-8, # 7 3 ) . This judgmeot was severely criticized later by the colony: "The Appellants Affect to speake highly of the Commissioners in 1705, of the great Considerations they were of in the Colonies, of the rectitude of their Judgment, and the Lights

they had not now to be Obtained to found it upon, and in these respects to Contrast it with the Judgment in 1743. It has been remarked in another place that their Judgment bears date the day after the Court was opened, so that it seems as if they had come prepared with it in their Pockets, and that in the whole they sat but three days, whereas the Court in 1743 were fifty Days going thro' the same business. What they say of their being Men of so much Consideration in the Colonics, is not only unsupported by Evidence but is not true in fact. Dudley had been the Instrument of Sir Edmund Andross in all his oppressions of the Colonies, and was all his life long the Avowed Enemy of the Colony of Connecticut, which he constantly laboured to ruin. There is no Country in which there is not some Men disafected to the Government they are under, and of a factious Intriguing spirit, such, it is known, were the Majority of the Commissioners in 1705, and one of them, at least, undoubtedly Interested in the Lands in Controversy. As to the Rectitude of their Judgment, they are forced to Admit it wrong as to Massapeage, and it is apparent they had before them another Conveyance of a considerable Tract of Land which they rejected, tho' Acknowledged in Court by Oweneco to be genuine" (MS Conn. Archives, 2 Indians, #277 0, P)· 63 CSP, Col., 1704-5, # 1 4 1 2 ; a Talcott Papers

APPEALS FROM R O Y A L COMMISSIONS

427

A l t h o u g h greatly alarmed by the trial of freeholds by commissions without jury or legal process, the colony at first doubted the value of an appeal. 5 4 In October, 1705, the General Assembly even appointed a committee to inquire into the alleged w r o n g s and report thereon at the next session. 58 N e v e r theless, on February 14, 1 7 0 5 / 6 , Sir Henry Ashurst, the Connecticut agent, presented to the Queen in Council an appeal f r o m the commission determination. 5 6 T h e points insisted upon in the petition and appeal were the absolute title in the colony by conquest and the subservient position of U n c a s ; the interest of D u d l e y et al.; the false allegations and surprise used to obtain the commission; the illegality of a commission empowered judicially to determine titles to land in summary manner—directly contrary to divers acts of Parliament; the willingness of the colony to submit the facts in dispute to commission inquisition; the partiality of the commission in the trial of the titles of the appearing landholders; and the absence of any showing in the proceedings of disseisin by the colony. 6 7 O n February 20 the Committee ordered that a copy of the petition and appeal be transmitted to the M o h e g a n agent to answer, and that the appeal be heard the first week after Easter, when those concerned were to attend, together with such witnesses as it should be necessary to hear in the cause. 6 8 A f t e r X 4 0 0 security for costs had been given by Ashurst following the commission terms, the cause came before the Committee for hearing on M a y 2 1 , 1706. 5 9 T h e written brief presented by the colony w a s largely an elaboration of the arguments and charges presented in the petition and appeal. 80 T h e C o m 5 Conn. Hist Soc. Coll., 147. See also JCTP, I704~ij08/g, 205. It was thought that the matter of fact would still not be tried by a jury; that the evidence would be transmitted by interested adversaries; and that many of the summoned subjects could not afford the requisite security (5 Winthrop Paperi, 305-6). Cf. the alleged entry into the record of evidence not presented to the commissioners (ibid., 349-50). The colony also felt that a formal appeal was not necessary where the commission authority had been so greatly exceeded (ibid., 351). However, it was also alleged that an attempt was made to prevent an appeal (ibid., 383). 55 4 Pub. Ree. Col. Conn., 519-20. 58 PC 2/81/108. " Winthrop MSS, 7 b/55 (Mass. Hist. Soc.). 5 » PC 2 / 8 1 / 1 1 0 ; Case of Respondents (Governor and Company), 1 1 . 19 PC 2/81/202, 204. Counsel for the colony were Spencer Cowper, Sir John Hollis, and Peter King; their case was drawn by a former senior judge of King's Bench under William i4

III (5 Winthrop Paperi, 325). The Committee (as recorded in the Privy Council register) consisted of the Lord President (Earl of Pembroke), the Lord Steward (Duke of Devonshire), the Duke of Somerset, the Earl of Stamford, Holt, C. J., Trevor, C. J. and James Vernon. Ashurst wrote that "there was two of the greatest dukes in England that attended your committee att my request, who never used to appear there" (ibid., 324). 80 Matt. Hist. Soc. MSS, 151.1.57. Additional points adverted to were: ( 1 ) the affront to the colony in the execution of the commission, the commission never having been produced before the General Assembly and the commissioners having appointed their own sheriffs and other officers; (2) the extravagant items in the bill of costs; (3) the attempt to obtain a confirmation of the sentence by sending the proceedings to the Board of Trade without notice and accompanied by misrepresentations; (4) the Board of Trade's certification of the proceedings to the King in Council without notice to the colony; (5) the ordering the

428

APPEALS FROM ROYAL

COMMISSIONS

mittcc upheld the propriety of the commission, since frequent treaties revealed that the Mohegans were a sovereign nation. Consequently, evidence on the part of the colony not introduced before the commissioners at Stonington was not admitted at the Committee hearing.® 1 However, the Committee

finally

advised that as much of the sentence as awarded costs should be reversed and that a commission of review should be issued for reviewing the residue of the sentence. 62 T h e Council Board ordered accordingly on June 10, 1706, appointing L o r d Cornbury, governor of N e w Y o r k , as one commissioner, the Board of Trade to suggest the others. 63 O n June 26, upon Board of Trade representation, Lord Cornbury and eleven members of the N e w Y o r k council were placed on the commission. 6 4 On July 12 the Committee recommended insertion of a clause in the commission that such of the commissioners as were interested in the lands refrain f r o m acting under the commission. 63 Finally, on February 5, 1706/7, a draft commission was approved in Council and ordered prepared for the royal signature preliminary to passage under the Great Seal. 66 Ashurst labored greatly to prevent the passage, and no action was ever taken under this commission. 6 7 T h e usual use of a commission of review under the Great Indians restored to more land than they complained of losing; (6) the true effect of the 1703 act adding land to New London; (7) the bad effect of the judgment on Indian relations; (8) the proceedings as part of a scheme to abolish charter government in Connecticut. 61 PC 2 / 8 1 / 2 0 4 ; 5 Winthrop Papers, 3 2 5 - 2 6 . Ashurst wrote that since the commission had passed the Attorney General and the Board of Trade, "there would be great interest made to support that Commission and proceedings." Winthrop informed Ashurst that Dudley and the commissioners had refused to receive any evidence unless all the colony's rights and properties were submitted to the determination of the commissioners (ibid., 3 2 5 ) . For refutation of the sovereign status of the Mohegans, see ibid., 349-50. 62

PC 2 / 8 1 / 2 0 4 - 5 . In regard to the poverty of the Indians and the danger of their joining the French, the expenses of the commission of review were to be assumed by the crown. 83 PC 2 / 8 1 / 2 1 4 ; 4 Doc. Rei. Col. Hist. N.Y., 1176. 64 PC 2 / 8 1 / 2 2 3 ; 4 Doc. Rei. Col. Hist. N.Y., 1 1 7 8 . The choice of Cornbury to head the commission was distasteful to Connecticut, the New York governor being regarded as an enemy of the colony (5 Winthrop Papers, 354, 378). But New York members were proposed by

the Board of Trade allegedly because of proximity anil lack of interest in the controversy ( C S P , Col., 1706-8, # 3 9 1 ) . Ashurst proposed that the council of Massachusetts sit as commissioners ( f C T P , 1704-1708/9, 269). 05 PC 2 / 8 1 / 2 3 2 ; CSP, Col., 1706-8, #430. 06 PC 2/81/292. The commission of review was drafted by Attorney General Northey, to whom the Board of Trade had forwarded a copy of the earlier commission and the proceedings thereon (CSP, Col., 1706-8, #468, 7 3 2 - 3 3 ) . See also ¡CTP, 1704-1708/9, 278, 315-16. 67 5 Winthrop Papers, 379; Case of Respondents (Governor and Company), 1 1 ; 1 Talcott Papers, 4 Conn. Hist. Soc. Coll., 367; 2 Talcott Papers, 478. For the reasons urged by Ashurst against issuance of the second commission see 5 Winthrop Papers, 383. John Mason, Mohegan guardian, was ill, and Connecticut had little incentive to prosecute the matter (De Forest, op. cit., 3 1 2 ) . Ashurst, writing to Governor Saltonstall in August, 1708, stated, " I make it my business with all my interest to keep that matter quiet." He also stated that he would like to have the matter referred to Governor Lovelace of New York if possible. (MS Conn. Archives, 2 Foreign Corres., # 1 0 4 ) . Later, defending the colony inactivity, William Samuel Johnson stated that "it was enough for the

A P P E A L S FROM R O Y A L COMMISSIONS

409

Seal was to rehear a sentence of the Court of Delegates in ecclesiastical or admiralty matters.68 But no such matters were involved here, and it is more probable that precedent was found in Channel Islands causes 69 or in a general theory of the royal prerogative.70 For some years the controversy remained in abeyance. But in October, 1718, complaints of trespasses on their sequestered grounds having been renewed by the Mohegans, commissioners were authorized by the colony to take cognizance thereof and to report to the assembly for further directions.71 In October, 1720, a new committee was appointed to settle claims in the north part of New London township by compromise or otherwise and to lay such settlement before the assembly for confirmation.72 A February, 1720/1, report of this committee was then ratified by the assembly in May, 1721, to quiet the Mohegan claims pro tempore.73 But the 1705 commission had not been forgotten by John Mason, who as guardian of the Mohegans had been forced to assume a portion of the expenses involved therein, for in 1723 and 1725 he made unsuccessful applications to the assembly for redress.74 Mason then sought to exert pressure upon the colony by securing the support in his efforts of a tribal faction opposed to Ben Uncas, the elective or usurping sachem who had been recognized by the colony in the place of Mahomet, the hereditary or legitimate sachem.75 This action by Mason resulted in an assembly resolution appointing in his stead, as Mohegan guardians, James Wadsworth and John Hall, formerly commissioners for the Mohegans.7" To establish his claims to recomcolony that the former judgment was set aside, nor could the colony with any propriety submit to a commission which it conceived illegal. It was the Mohegans' and Mason's business to have done it but neither thought it worth their while" (MS Conn. Archives, 2 Indiani, # 2 7 7 q). See Coke, Fourth Institute, 340; Chitty, Treatise on the Law of the Prerogatives of the Crown (1820), 56; Mathews v. Warner (4 Vesey Iunior 186); Eagleton v. Kingston (8 Vesey Iunior 438). 1:9 See APC, Dom., 1613-14, 1 1 4 - 1 5 ; ibid., 1616-17, 326; ibid., 1618-ig, 51. 70 In an April 20, 1 7 1 3 , opinion of Doctors Henchman, Pinfold, and Paske, of Doctors Commons, it was stated that "by the civil law every supream Prince has a power of granting a review in all cases, after the contending parties have passed through all the ordinary established courts of appeals" (2 Documents Relating to the Lau> and Custom uf the Sea, 50 Pub. Navy Ree. Soc., ed. R. G. Marsden, 1916, 229). 6S

71

6 Pub. Ree. Col. Conn., 78. See ibid., 193, 204-5 f ° r these commissioners in operation. 72 Ibid., 218. 73 Case of Respondent (Governor and Company), 1 4 - 1 5 ; 6 Pub. Ree. Col. Conn., 256. 74 De Forest, op. cit., 3 1 9 ; 2 Talcott Papers, 384-95; 6 Pub. Ree. Col. Conn., 575; MS Conn. Archives, 1 Indians, # 1 2 3 , 126. Cf. a Connecticut view as to the amount of the expenses (1 Talcott Papers, 346-47), and the declaration of Ben Uncas (ibid., 362-63). 75 MS Conn. Archives, 2 Indians, # 2 7 7 s - v ; ι Talcott Papers, 3 3 5 - 3 6 , 3 4 0 - 4 1 ; De Forest, op. cit., 3 2 1 - 2 2 . The acts altering sachem succession (6 Pub. Ree. Col. Conn., 428; 7 ibid., 75) were allegedly passed at the instance of the tribe (1 Talcott Papers, 3 6 1 ) . Cf. ibid., 364-66, on the status of Mahomet. Wc are using the eighteenth-century form of the name. The modern form is Mamohet; cf. A. L. Peale, Uncas and the Mohegan Peqttot ( 1 9 3 9 ) , passim. 78 7 Pub. Ree. Col. Conn., 75. Connecticut asserted that the change was made upon com-

43o

APPEALS FROM ROYAL

COMMISSIONS

pense and guardianship, Mason, accompanied by the usurped

Mahomet,

in 1 7 3 5 journeyed to E n g l a n d , 7 7 where the D u k e of Newcastle was memorialized by Mahomet upon the failure to enforce the earlier commission determination and upon the injuries received by the Mohegans at the hands of the Connecticut subjects. 78 T h e Board of T r a d e at first intended to represent that the 1705 judgment be ordered executed or cause shown, 7 9 but upon discovery of the appeal therefrom, it advised the granting of a new commission of review invested with the same authority and power for rehearing and determining all matters in dispute as were granted by the earlier unexecuted commission. 80 T h e C o m mittee, after hearing the M o h e g a n and Connecticut agents in March, 1 7 3 6 / 7 , accepted the Board of T r a d e advice and ordered laid before it a draft of such commission, with a list of commissioners. 8 1 A commission was then prepared and approved by the Committee; on April 2 1 , 1 7 3 7 , an Order in Council issued directing Newcastle to cause a warrant to be prepared for the King's signature to pass a commission under the Great Seal to the Governor and Council of N e w Y o r k and to the Governor and Assistants of Rhode Island, five of w h o m were to be a quorum. N o appeal was reserved from the determination of these commissioners. T h e charge of passing the commission and all other expenses were to be defrayed by the crown in view of the Indian poverty. 8 2 A f t e r issuance of the commission, Connecticut sought to improve its position

plaint of the Mohegans (1 Talcott Papers, 3fio). In October, 1730, Wadsworth, Samuel Lvnde, and Stephen Whittlesey became guardians (7 Pub. Ree. Col. Conn., 300). In May, 1732, John Richards replaced the deceased Whittlesey (ibid., 378). See also ibid., 519, for additional guardian authority. 77 De Forest, op. cit., 323. Cf. the Connecticut view of Mason's actions (1 Talcott Papers, 328-19, 3 3 1 - 3 3 ) . An application by Mason to the Commissioners of the Society for the Propagation of the Gospel in New England to recommend him to the home organization was rejected (ibid., 3 3 0 - 3 1 , 342, 352). The colony attempted to prevent the Rhode Island seal from being affixed to Mason's papers and Mahomet from going to England (ibid., 345-46)· 73 ICTP, 1734/5-41, 105-6; ι Talcott Papers, 368-72. 7B ICTP, 1734/5-41, 109. 80 Ibid., 109-10, 1 1 6 . Hopes expressed by agent Francis Wilks that the death of Mahomet in August, 1736, would end the affair were not fulfilled ( i Talcott Papers, 374), but his

decease rendered unnecessary a vigorous defense by the colony (ibid., 376-77, 380-81). John Mason also died in England. « P C 2/94/135; ICTP, 1734/5-4'. 168. Mason petitioned against Connecticut or New England inhabitants being in the commission (ibid., 168-69). Cf. Governor Belcher on the composition of the commission (2 Talcott Papers, 24-25). The Committee gave four reasons for issuance of the commission in reply to Wilks' objections: ( 1 ) the Council Board never made an order in vain; (2) the issuance of a new commission was only a revival of the old dormant one; (3) such issuance would not raise the question of rightful sachem, since Mahomet was dead; (4) the issuance favored Connecticut, since as matters stood judgment had been given against the colony (ibid., 1 4 - 1 7 ) . 82 PC 2/94/185, 204. For the commission see 2 Talcott Papers, 18-23. Governor Talcott optimistically hoped for revocation of the commission (ibid., 30-32), but agent Wilks found it impossible to put a stop to execution of the commission. He advised the colony to have

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431

by securing from Ben Uncas releases of all rights accruing under the 1705 judgment and of all other claims to the controverted lands.8* On May 24,1738, the commissioners, consisting of two New York councilors and the governor, and six assistants of Rhode Island convened at Norwich, Connecticut.84 Although acting as a commission of review, the former judgment was allegedly not taken into consideration or read by the commissioners.85 Furthermore, neither the Indians nor Samuel Mason, the son of the late John Mason and their alleged guardian, were granted a hearing, on the ground that Ben Uncas was the rightful sachem.88 The New York members, dissatisfied with such proceedings, filed their protest against them, and withdrew. 87 The Rhode Island commissioners proceeded in the hearing, deBen Uncas appear before the commissioners, disclaim the petition upon which the commission was issued, consent to a reversal of the former sentence, and desire judgment in favor of Connecticut (ibid., 46-47). 83 Case of Respondents (Governor and Company), 1 6 - 1 7 ; 2 Talcott Paperi, 36, 40-44, 07, 485-88. 84 MS Conn. Archives, 1 Indians, # 1 7 3 ; 2 Talcott Papers, 53. An earlier meeting took place at Greenwich on May 10, only five New York members being present. At this meeting a clerk was appointed, and the Governor and Company, the chief sachem and principal heads of the Mohegans, and the landholders were ordered to appear. For the representation made to the commissioners by William Bollan, counsel for the Mohegans, see Chalmers MSS, ι Conn., 42-47. For the pleas of the colony see ibid., 36-40, 48-49. See also ibid., 50-58, 59-64, for notes of the colony's argument. 85 3 APC, Col., # 3 9 2 ; 2 Talcott Papers, 152. Compare ibid., 197. Connecticut had again insisted that the Dudley Commission had acted without authority in making its judgment (ibid., 1 5 1 , 197). Agent Wilks wrote that he found "the Council [of the Board of Trade] clear in opinion that if the sentence of the commissioners in Queen Ann's time had been produced and made part of the record, no doubt would have remained of getting the last judgment affirmed" (ibid., 2î6). To similar effect, see ibid., 262, 282, 328-29. When the colony attempted to show by supplementary evidence that the former judgment had been read before the commissioners, although omitted from the record, Wilks wrote that such evidence was not admissible to support the sentence, being outside the transmitted record (ibid., 327). For

the petition of Wilks to the Committee alleging that the omission was due to the mistake or negligence of the clerk, see Chalmers MSS, 1 Conn., 32. 86 On May 27 the commissioners demanded the appearance of the chief sachem, if any existed. Counsel Bollan and Shirley for Mason declared for John Uncas; the colony counsd declared for Ben Uncas. Upon Commission proposal to determine, as a preliminary, who was chief sachem, it was agreed on May 29 to examine witnesses in writing and to allow cross-examination. After some such evidence had been taken, on May 30 Mason's counsel moved that the Mohegans present be admitted to declare whether there was any sachem present; if so, they were to tell who he was; if none, who ought to be. This motion was refused, Horsmanden of New York dissenting. On May 3 1 , after further examination, Mason's counsel moved that the Indians present be heard as to the sachemship; this was also refused, Horsmanden dissenting. But each side was given leave to bring in six of the principal Mohegans to inform the commissioners who should be sachem. On June 2 Ben Uncas was adjudged sachem and was granted leave to have the colony counsel appear for him. A motion by Mason's counsel that Mason be allowed to appear as guardian for the Mohegans was denied, Horsmanden dissenting (MS Conn. Archives, 1 Indians, # 1 7 3 ) . Cf. 2 Talcott Papers, 55-61, 106-114. 87 MS Conn. Archives, 1 Indians, # 1 7 3 ; 2 Talcott Papers, 153-54. The main ground of withdrawal was that the defense presented was collusive. The rump Commission desired Mason to present any evidence he might give in behalf of the tribe, but Mason's counsel had already withdrawn. Cf. ibid., 182-83, o n the

432

APPEALS

FROM

R O Y A L

COMMISSIONS

d a r i n g B e n U n c a s r i g h t f u l s a c h e m a n d a d m i t t i n g his releases m a d e q u e n t to the issuance of t h e c o m m i s s i o n . 8 8 T h e r e u p o n , t h e r e m a i n i n g

subsecom-

m i s s i o n e r s r e v e r s e d the 1 7 0 5 j u d g m e n t , e x c e p t as to o n e tract, the s o - c a l l e d " M o h e g a n fields," still in tribal p o s s e s s i o n . 8 9 A l t h o u g h d e n i e d a n a p p e a l b y t h e c o m m i s s i o n e r s , 9 0 S a m u e l a n d J o h n M a s o n , b o t h sons of t h e late g u a r d i a n , a p p e a l e d directly to the K i n g in C o u n c i l f r o m this j u d g m e n t , 9 1 w h i l e t h e N e w Y o r k members, D a n i e l H o r s m a n d e n and Philip van C o r t l a n d , m a d e a separate r e t u r n . 9 2 T h e B o a r d of T r a d e , to w h i c h t h e m a t t e r w a s r e f e r r e d , a f t e r h e a r i n g the parties, represented that the p r o c e e d i n g s in e x e c u t i o n of the c o m m i s s i o n w e r e v e r y i r r e g u l a r a n d s u b m i t t e d the a d v i s a b i l i t y of a n e w c o m m i s s i o n review.93

Despite objection by

the C o n n e c t i c u t

agent,

this

of

representation

elicited c o n c i l i a r a p p r o v a l , the p r o c e e d i n g s w e r e set a s i d e o n J u l y 3 1 ,

1740,

a n d a n e w c o m m i s s i o n of r e v i e w w a s o r d e r e d to pass u n d e r t h e G r e a t S e a l . 9 4 A l t h o u g h C o n n e c t i c u t p e t i t i o n e d that t h e f o r m e r R h o d e I s l a n d m e m b e r s be i n c l u d e d in the n e w c o m m i s s i o n o r that t h e f o r m e r N e w Y o r k c o u n c i l o r s b e o m i t t e d , the c o m m i s s i o n w a s o r d e r e d issued in J a n u a r y , 1 7 4 0 / 1 , to the respect i v e g o v e r n o r s a n d c o u n c i l s of N e w Y o r k a n d N e w J e r s e y . T h e

Connecticut version of the conduct of the New York commissioners. es MS Conn. Archives, ι Indians, # 1 7 3 . Compare 2 Tolcolt Papers, 199-200, on the validity of the releases. According to Samuel and John Mason the 1640 grant was much relied upon by the commissioners, although no countenance should have been given to it (ibid., 1 5 4 - 5 5 ) · 88 CO 5 / 1 2 6 9 / T 19; 3 APC, Col., # 3 9 2 ; 2 Talcott Papers, 156. 1,0 It was commented by Connecticut upon the petition of appeal that, " N o appeal was granted by the commission [see 2 Talcott Papers, 1 8 - 2 3 ] and this being a commission of review no appeal does by law lye" (ibid., 1 5 6 ) . Cf. ibid., 158. 81 Pc 2 / 9 5 / 2 1 9 ; ¡CTP, ¡734/5-41, 265-66. For the petition of appeal see 2 Talcott Papers, ' 3 9 - 5 9 ; CO 5 / 1 2 6 9 / T 16. Counsel John Sharpe had written that "there being no liberty of appeal given by this Commission . . . I take it to be very clear no appeal will lie, and that the determination of the commissioners is final and conclusive. Unless the crown should think proper to grant another Commission of Review which is the only method that can in my opinion be taken to [illegible] the determination of the present commissioners and which to be sure the crown may do if

commission

they see proper. But as Commissions of Review are not demandable of right, but are meer matter of grace and favour, and as it is very rarely if ever done to grant a Commission of Review upon a Commission of Review . . . I am very inclinable to think the crown will never give in to any application for another Commission of Review" (2 Talcott Papers, 1 1 5 ) . See also the marginal comments in Chalmers MSS, 2 Conn., 14—22. 92 For the separate return of Cortland and Horsmanden see CO 5 / 1 2 6 9 / T 10; Chalmers MSS, 1 Conn., 84-87; ibid., 2 Conn., 1-12. Great dissatisfaction was expressed at the Rhode Island members suffering a collusive defense to the Indian title to be made and conducted by persons who plainly appeared to be members of the corporation and therefore adversaries of the tribe. Compare the Connecticut version of the assignment of counsel to Ben Uncas (2 Talcott Papers, 1 1 3 , 198-99). For the answer of the Rhode Island commissioners to the Mason charges see Wm. Samuel Johnson MSS, Mohegan Indians, $20. "" MS Conn. Archives, 1 Foreign Corres., # 1 5 3 ; ¡CTP, 1734/5-41, 297, 305-6. 3 ° 8 - I O , 3 1 2 - 1 4 , 3 2 1 , 3 2 4 - 2 5 ; 2 Talcott Papers, 1 3 7 38, 263-65. 94 PC 2 / 9 6 / 1 6 3 - 6 7 , 1 7 5 ; 2 Talcott Papers, 274-79. C/. ibid., 262.

A P P E A L S F R O M R O Y A L COMMISSIONS was also to contain a clause giving liberty to any aggrieved party to enter an appeal to the King in Council within a limited time. 95 This commission of review did not pass the Great Seal until January 8, 1742/3. It contained a provision for a meeting of the commissioners within three months of the commission determination to receive appeals from any aggrieved parties; appellants were to declare what part of the judgment was appealed from, and no appeals, exceptions, or further commissions of review were to be afterwards received or granted. 96 The Court of Commissioners, six in number, convened at Greenwich, Connecticut, on May 4,1743, and ordered the various parties to appear before the court at Norwich on June 28.97 After the return of summonses on that date, the court immediately avoided the error of the earlier commissioners of review by ordering entered in the minutes the proceedings of the Dudley commission.98 A n attempt was then made to represent Ben Uncas and the tribe by counsel other than Mason appointees; when this was objected to, the court reserved consideration until the nature of the cause was laid open before the court.99 Upon motion of Connecticut that the Indians state the nature of their complaint, the motion was denied, and the colony was ordered to file reasons for reversal. T o this ruling President Colden dissented, stating that the commission proceedings were in the nature of a rehearing de novo as in a chancery review, rather than of a superior court on error, and that therefore the complaint should be set forth as prayed. 100 Following this ruling, the Governor and Company of Connecticut, on July 9, exhibited a "defense" against the Dudley commission decree. 101 On July 13 counsel for the Mohegans presented an answer to this defense; 1 0 2 on the following day a reply was exhibited and a rejoinder thereto. 103 The parties then proceeded to their proof, being directed to offer evidence in support of all facts respectively alleged, even as to matters not expressly traversed by the 95

PC 2/96/194, 246, 248, 255, 297, 3 1 9 , 346, 376; / C T P , 173415-41, 344, 3 6 1 - 6 3 ; 2 Talcott Papers, 214, 279-80, 332. For the protesting petition of agent Wilks see ibid., 3 1 4 ; for the answering petition of the Masons see ibid., 320-24. Wilks felt certain the Connecticut objection would be futile, being "pretty certain the Lords of the Committee will never suffer any out of charter governments to sit in judgment any more upon appeals of this nature" (ibid., 3 3 0 ) . Cf. Wm. Samuel Johnson MSS, Mohegan Indians, # 1 9 . For the Board of Trade report see Chalmers MSS, 2 Conn., 35. 98 Proc. Conn. v. Mohegans ( 1 7 4 3 ) , 8-9. The colony appointed a committee to effect a

compromise with Samuel Mason in October, 1742, but the attempt was abortive (MS Conn. Archives, 1 Indians, # 2 0 0 - 2 0 1 ) . 97 Proc. Conn. v. Mohegans ( 1 7 4 3 ) , 3, 9. 88 See ibid., 23-68. Some dispute arising as to which party should produce the original judgment and proceedings, a copy produced by counsel for the Mohegans was ultimately admitted (ibid., 14, 20-22). 99 Ibid., 70-73. 100 Ibid., 7 3 - 7 5 . 101 Ibid., 76-86. 102 Ibid., 87-97. 103 Ibid., 97-98. See also the papers in Yale Univ. Lib. MSS., Ζ 117.0047.

APPEALS FROM R O Y A L COMMISSIONS opponent. 104 Ben Uncas was then allowed to lay before the court what he had to offer, mainly a disclaimer of the lands in controversy. 105 On July 25 the court with the consent of the parties ordered reversed the award of costs in the 1705 judgment—acting on the basis of the June 10,1706, Order in Council. 106 The numerous tenants in possession of controverted lands, being summoned by the commissioners, entered a plea to the jurisdiction, alleging a commission to determine individual land titles in a course of equity to be contrary to the laws of England, and of Connecticut, and to the colony charter. 107 Demurrer being made to this plea, it was overruled. Commissioner Horsmanden was of the opinion that the Indians were a distinct people, that the property of the soil was in the Indians, and that royal charters did not ipso facto impropriate lands delimited therein to subjects until fair and honest purchases thereof were made from the natives. A dispute as to property in lands between a distinct people and English subjects could not be determined by the laws of England, but only by a law equal to both parties, the law of nature and nations. And it was upon this foundation that these commissions had been most properly issued. 108 President Colden dissenting, stated that the Mohegans were not a separate or sovereign state, but were subjects of England. 1 0 9 Further, when special powers out of the course of the common 104 Proc. Conn. v. Mohegans ( 1 7 4 3 ) , 98-108. For the colony evidence see ibid., 1 4 4 - 2 1 3 ; for that of the Mohegans, ibid., 2 1 3 - 3 9 ; for that of the landholders, ibid., 239-77. ι«5 Ibid., 1 0 9 - 1 1 5 ; Yale Univ. lib. MSS., Ζ 117-0047· 108 Proc. Conn. v. Mohegans ( 1 7 4 3 ) , 1 1 8 . 107 ibid., 1 1 9 - 1 2 5 . 108 Ibid., 126-27. 109 Ibid., 127. William Samuel Johnson, commenting on the argument of the Mohegans, stated: "The Evidence referred to in the Notes of the Respondents Proofs we apprehend sufficiently shows that the Mohegans were neither free, Independent, nor numerous, but were only a small part of the Pequots from whom Uncas had revolted. The Treaty for settling the Country was made with the Pequots, and a right to all their Territories, which included the Mohegan Lands, was undoubtedly acquired by the Consent of that People. That the Colony did not consider them as Independent further appears by their Laws relating to them (which it is Considered we have as good a right to adduce as the appellants had to Insist upon several matters not in the Record) which subject them to Punishment for Immoralities, and crimes, and enact various regulations with respect to them.

Mr. Colden's Objections in page 127, is a very just one that the Idea of the Mohegans being a separate or sovereign state would, in America, where the State and condition of the Indians is known to everybody might expose Majesty and Sovereignty to Ridecule, might be of dangerous Consequences, and not to be suffered in a Court of Justice etc. When the English Treated with them it was not with Indépendant States (for they had no such thing as a Civil Polity, nor hardly any one Circumstance essential to the existence of a state) but as with savages, whom they were to quiet and manage as well as they could, sometimes by flattery, but oftener by force. Who would not Treat if he saw himself surrounded by a Company of Lyons Wolves or Beasts whom the Indians but too nearly resembled, ready to fall upon him and even call them Friends and allies too, if he thought it would for a Moment repress their Rage, and give him time to take measures for his security; but you would not therefore Immediately call them an independent State (though Independent enough God knows) because they hunted the same Forest or Drank at the same Brook. The Gentlemen should have given some definition of a State or Commonwealth, it would then have appeared how far these

APPEALS F R O M R O Y A L COMMISSIONS law were given to commissioners for particular purposes, those powers should be strictly pursued and in no manner enlarged by implication. Since no express power was granted over rights of freehold of particular persons other than the Governor and Company of Connecticut and the sachem and tribe of Mohegans, the court ought not to assume such power. Inability to provide an adequate remedy offered no justification for enlargement of power. 1 1 0 However, upon motion by the colony it was agreed to postpone hearing the tenants unless, after presentation of the defense of the Governor and Company, it should be found necessary. 111 Several days of argument then ensued, following which the landholders pleaded possession by virtue of lawful Indian grants for valuable consideration and submitted proof in support thereof. 1 1 2 After several adjournments, three commissioners on August 15, 1743, delivered their opinion upon the merits of the cause, consistently upholding the Connecticut contentions and stating that the Dudley decree ought to be reversed and declared null and void. Commissioners Morris and Horsmanden dissented from this opinion. 1 1 3 On August 16 a new decree was accordingly made, to the effect that the August 24,1705, determination of the commissioners be repealed and declared null and void, excepting that part of the decree which concerned the "sequestered lands" confirmed to the Mohegans by a May, 1721, assembly act, which was affirmed. Copies of the decree were ordered served upon the parties, with notice of a further meeting at Norwalk on October 25. 1 1 4 On October 26, 1743, before the commissioners assembled at Norwalk, counsel William Bollan, on behalf of the Mohegans, entered an appeal from the recently rendered decree. Exception to the order of the court allowing the appeal was taken by the Connecticut agents, on the ground that Bollan lacked authority. 110 Horsmanden, delivering a partial opinion, requested its Indians fall short of that Character. It is true indeed, that the English have taken Infinite Pains to Civilize and Christianize the Indians, and they sometimes flattered themselves with hopes of success, and that they should by degrees make them Men and Christians, but after all their Endeavours (except in a very few Instances) they remain but little superior in point of Civilization, to the Beasts of the Field. This Notion of their being free States is perfectly ridiculous and absurd. Without Polity, Laws etc. there can be no such thing as a State. The Indians had neither in any proper sense of the words. It is also Inconsistent with their own Ideas that they were always under the Guardianship of the Mason's" (MS Conn. Archives, 2 Indians, # 2 7 7 a, b). Cf. the February, 1767, opinion of Richard Jackson on the status of the Indian tribes (Pitkin

Papers, 19 Conn. Hist. Soc. Coll., 68-69). John Bulkley advanced an argument against the Mohegan right to the controverted lands based upon John Locke's philosophy of a state of nature; see Wolcott, Poetical Meditations ( 1 7 2 5 ) , Preface xv-lvi; 4 Mass. Hist. Soc. Coll. (ist ser.), 1 5 9 - 8 1 . 110 Proc. Conn. v. Mohegans ( 1 7 4 3 ) , 1 2 7 - 2 8 . 111 Ibid.. 128-29. 112 Ibid., 1 3 0 - 3 7 . 113 Ibid., 1 3 7 - 4 2 ; i IMW Papers, 1 1 Conn. Hist. Soc. Coll., 1 0 1 - 1 1 . 114 Proc. Conn. v. Mohegans ( 1 7 4 3 ) , 143-44; ι Law Papers, i n . Horsmanden and Morris signed the "judgment" to signify that it was the "judgment o f " the court, viz., the majority of the commissioners (6 Doc. Rei. Col. Hist. N.Y., 257). 115 Proc. Conn. v. Mohegans ( 1 7 4 3 ) , 279-80.

436

APPEALS

FROM

ROYAL

COMMISSIONS

e n t r a n c e u p o n the m i n u t e s ; b u t the c o l o n y objected, a n d it w a s resolved in the n e g a t i v e b y a m a j o r i t y of the c o m m i s s i o n e r s . H o r s m a n d e n protested, stating that h e w o u l d take the n e x t o p p o r t u n i t y to t r a n s m i t his o p i n i o n to the B o a r d of T r a d e . 1 1 6 Press of p r i v a t e a f f a i r s t h e n f o r c e d the c o m m i s s i o n e r s to disperse w i t h o u t attesting copies of their p r o c e e d i n g s as r e q u i r e d b y the t e r m s of t h e commission.117 A t t e s t e d copies of the p r o c e e d i n g w e r e not t r a n s m i t t e d as r e q u i r e d March, 1743/4,

118

until

b u t the petition a n d a p p e a l w a s n o t entered at the C o u n c i l

O f f i c e until J u l y , 1 7 4 6 . 1 1 9 R e f e r r e d to the C o m m i t t e e , the a p p e a l r e m a i n e d d o r m a n t 1 2 0 u n t i l 1 7 5 6 , d u e to l a c k of f u n d s to p r o s e c u t e it, C o n n e c t i c u t end e a v o r i n g to p r e v e n t c r o w n

financing

of the a p p e a l . 1 2 1 F i n a l l y , o n A u g u s t 1 8 ,

1 7 5 6 , appellants m o v e d to be h e a r d a n d p r a y e d that since n o a p p e a r a n c e h a d been entered e x c e p t f o r the G o v e r n o r a n d C o m p a n y the usual s u m m o n s be affixed o n the R o y a l E x c h a n g e a n d i n the N e w E n g l a n d C o f f e e H o u s e . T h e C o m m i t t e e t h e r e u p o n o r d e r e d the appeal h e a r d o n D e c e m b e r 9 a n d the s u m m o n s e s affixed as p r a y e d . 1 2 2 T h i s h e a r i n g n e v e r took place, a n d S a m u e l M a s o n , w h o h a d c o m e to E n g l a n d in c o n n e c t i o n w i t h the case, r e t u r n e d to die in C o n n e c t i c u t . 1 2 3 T o w a r d the e n d of 1 7 6 4 J o h n M a s o n j o u r n e y e d to E n g l a n d , lla

Ibid., 281. Cf. Horsmanden's version of the resolution (6 Doc. Rei. Col. Hist. N.Y., 257). For versions of Horsmanden's dissenting opinion see CO 5 / 1 0 6 0 / G G 106; Conn. State Lib. MSS, Acc. No. 39,065 (970.3/M 7 2 ) ; ι Law Papers, 1 4 7 - 7 2 . Cf. Wolcott Papers, 16 Conn. Hist. Soc. Coll., 2 2 0 - 2 1 . 117 Proc. Conn. v. Mohegans ( 1 7 4 3 ) , 2 8 1 - 8 2 . For the expenses of the commissioners see 1 Law Papers, 94-98. 118 6 Doc. Rei. Col. Hist. N.Y., 258. Cf. Wolcott Papers, 171. 119 PC 2/99/535. For copies of the petition and appeal see Yale Univ. Lib. MSS, Ζ 117-0047; Conn. State Lib. MSS, Acc. No. 39,065 (970.3/M 7 2 ) ; Chalmers MSS, 3 Conn., 6-36. It was reported that Samuel Mason did not set off to prosecute the appeal until assured by Horsmanden of success therein (1 Law Papers, 2 4 1 ) . 120 Jonathan Law suggested a plea to the jurisdiction of the King in Council to try land titles in America on the precedent of Francis v. The Selectmen of Boston (3 APC, Col., # 5 3 5 ) , but agent Eliakim Palmer replied that the precedent was misunderstood, "appeals of that nature being always admitted" (2 Law Papers, 1 3 Conn. Hist. Soc. Coll., 298). 121 For the efforts of Samuel Mason to obtain

funds from the crown see PC 2 / 1 0 1 / 2 3 1 ; PC 2 / 1 0 2 / 2 2 0 , 339, 395, 424; 3 Law Papers, 1 5 Conn. Hist. Soc. Coll., 266, 4 3 1 - 3 5 ; Wolcott Papers, 2 1 - 2 2 , 48, 73, 84, 89, 1 0 1 , 1 1 3 - 1 6 , 140-45, 159, 170,· 189, 195-96, 2 1 9 , 238-39, 243, 252, 259-60, 262, 303, 365, 389-90, 444. William Sharpe, Solicitor of the Treasury, was of the opinion that if this had been a matter originally before the Lords he would have thought fit to get counsel's opinion on the advisability of an appeal. In Chancery and in the House of Lords no petitions of appeal were received unless signed by two counsel, whereas petitions of appeal to the King in Council were received without being signed by any counsel, as in this case (TS 1 1 / 1 0 0 6 / # 3 8 8 8 [Oct. 3 1 , 1 7 5 2 ] ) . Sharpe also queried whether Mason should be allowed ¿ 3 7 0 for attendance upon the appeal in England, such attendance being in no way necessary (ibid.). 122

PC 2/106/286. It was later alleged that, while the appellants' solicitor was proceeding to bring on the cause, it was intimated to him on the part of the crown that the cause could not conveniently be heard until the expiration of the war (Case of Appellants, 23). Among the instructions to Connecticut agent Jared Ingersoll in May, 1758, was a clause "to take prudent care of the affair of the Mohegan 123

APPEALS FROM ROYAL COMMISSIONS the claims being freshly agitated in the c o l o n y ,

124

437

and in A p r i l , 1 7 6 5 , the C o m -

mittee ordered the cause heard at the first meeting after the Christmas holid a y s . 1 2 5 A g a i n n o such hearing w a s held, but in July, 1766, upon motion the C o m m i t t e e revived the appeal against the heirs of deceased landholders, w i t h out prejudice to objections to the propriety of such revival at the hearing set for the first F e b r u a r y m e e t i n g . 1 2 · U p o n notice thereof Connecticut appointed W i l l i a m S a m u e l Johnson agent to defend the appeal, w i t h instructions to avoid a hearing upon the merits if possible. 1 2 7 A f t e r a further period of d o r m a n c y the respondent tenants entered their appearance to the appeal in December, 1 7 6 9 . 1 2 8 A n attempt early in 1 7 7 0 to have the cause dismissed upon motion of respondents h a v i n g f a i l e d , 1 2 9 the Committee proceeded to hear the cause on

Indians, to prevent any further proceedings in that case" (i Fitch Paperi, 17 Conn. Hist. Soc. Coll., 341-43; i l Pub. Ree. Col. Conn., 127-28). Agent Richard Partridge stated the dormancy of the cause "to be chiefly owing to Lord Granville the President of the Council for that I have heard as if he is unwilling it should be brought forward on the carpet while the present troubles with Indians continue here" (1 Fitch Papers, 360). 124 2 Fitch Papers, i8 Conn. Hist. Soc. Coll., 306-7, 3 0 9 - 1 1 , 3 1 3 - 1 4 . 317· 125 PC 2 / 1 1 1 / 1 9 8 . 12e PC 2 / 1 1 1 / 6 9 5 ; Pitkin Papert, 19 Conn. Hist. Soc. Coll., 1 1 - 1 4 . Richard Jackson wrote that the true situation of the cause having been hinted at the Council Board, Lord Mansfield had "refused to permit the appeal to be revived of course but advised their Lordships (himself being one) to order as they did that it should be revived nisi" {ibid., 34). 121 12 Pub. Ree. Col. Conn., 501; Pitkin Papers, 46, 56-57; Willys Papers, 31 Conn. Hist. Soc. Coll., 440-41; Trumbull Papers, 9 Mass. Hist. Soc. Coll. (5th ser.), 213; Beardsley, Lije and Correspondence of Samuel Johnson (1874), 3 1 0 ; G. C. Grace, William Samuel Johnson (1937), 68, 89; 13 Pub. Ree. Col. Conn., 188. A conciliar judgment adverse to the colony might have lent support to the prevalent agitation against the charter governments; see Pitkin Papers, 51, 73, 75. 128 PC 2 / 1 1 4 / 1 5 7 . The advice of agent Richard Jackson that an objection be taken by those landholders against whom the appeal had been revived was ignored (Pitkin Papers, 34). An approach was made to Jackson to accommodate the matter in early 1767, but

the agent feared treatment of such accommodation as an admission of the right to revive the cause—a right which he had never admitted (ibid., 70). See also ibid., 77, 91; Trumbull Papers, 214-15, 221, 244. Factors causing delay in hearing the cause were the illness of Lord Northington, Lord President of the Council (Pitkin Papers, 77, 84; Trumbull Papers, 214, 221-22, 235, 488), priority of other causes (Pitkin Papers, 77), failure to have the cause set down for hearing (ibid., 95), delay in the crown's assumption of appellants' expenses (Pitkin Papers, 141-42, 146; Τ r / 4 7 1 / 3 1 3 - 1 4 ; Τ //474/152), indolence of conciliar office (Trumbull Papers, 244, 289), conciliar and counsel absorption in Parliamentary elections (ibid., 268-69), absence of the Chief Justices during term time (ibid., 272-73), the return of Mason to Connecticut to secure further evidence and more money (ibid., 322, 342, 369-70; Pitkin Papers, 1 5 8 59, 170-71, 178, 192). An unsuccessful attempt was made to influence the outcome by the complaining and bribing petition to the King in Council of Samson Occorri, a Mohegan sachem favorable to Mason; see ibid., 160-61, 178-80, 275; Trumbull Papers, 322-23. Mason also alleged tampering with his attorney, one Astley (ibid., 367-68; Τ //348/240-41; Τ / / 463/77-79). 129 Trumbull Papers, 393-94, 405. Agent Johnson wrote that "the Master of the Rolls took it up very strongly against us, upon very narrow principles of mode and form, to which he is much attached, neglecting the large ideas of right and policy upon which we founded our nation. Some of the Lords, indeed, thought that the late and former war,

438

A P P E A L S F R O M R O Y A L COMMISSIONS

the merits in June, 1770. 1 3 0 The illness of Attorney General De Grey, combined with conciliar desire to quit London, then prevented further proceedings until N o v e m b e r ; 1 3 1 final hearing of argument did not take place until June, 1 7 7 1 . 1 3 2 In their argument the appellant Mohegans insisted that the respondent colony could only gain title to the Mohegan lands by conquest or purchase; conquest could not be pretended in this case, and title by purchase had to be shown free from fraudulent seduction, undue encroachments, and arbitrary acts of force. The 1640 grant from Uncas, not having been insisted upon or even recorded until 1736, was either a spurious or a deserted title. 1 3 3 Even admitting that the 1640 grant might have weight, it was designed during which they had declined determining American titles, excused the delay which had happened on the part of the appellants. Nothing fell from any of them from whence we could collect their opinions upon the merits; but it is apparent from the event of this motion that we can expect no degree of favor." Richard Jackson also wrote that "the Master of the Rolls who was the principal Privy Councillor bred to the law thought we ought to bring the cause on at length and saved to us the benefit of any arguments to be founded on the delay" (3 Trumbull MSS, 5 b, 17 c). Jackson had earlier advised the colony that, as the Council Board might not understand colonial conditions, it would be advisable to rely upon "limitation of legal remedy" (Pilliti Papers, 3 3 - 3 4 ) . Cf. Ingertoll Paperi, 4 1 3 - 1 4 , 4 1 6 , 4 1 2 - 2 3 . See also the reasons of Pitkin "against the cause being ever heard" (Pitkin Paperi, 60). 180 PC 2 / 1 1 4 / 4 1 4 , 4 1 5 ; Wm. Samuel Johnson MS Diaries (Conn. Hist. Soc.), sub June 1 2 and 1 3 , 1770. Copies of the printed "cases" of the appellants, of the respondent Governor and Company, and of the respondent landholders are in Columbia Univ. L a w Lib. A copy of the last case is also in the Conn. Hist. Soc. Lib. Cf. the manuscript notes on the case in Wm. Samuel Johnson MSS, Mohegan Indians, # 2 9 , 30. See Trumbull Papers, 429—30, for reasons for delay in hearing. 131 PC 2 / 1 1 4 / 5 5 1 ; Trumbull Papers, 4 3 9 - 4 1 , 445; 3 Trumbull MSS, 20 b, 30 b. Attorney General De Grey and J. Dunning were counsel for the respondent landholders, Alexander Wedderburn and Richard Jackson for the Governor and Company, and Charles Yorke and Fowler Walker for the appellants. Agent Johnson wrote that the arguments of appellants were "long and labored, replete with

the most illiberal and ill-founded abuse and misrepresentation, both of the Colony and the landholders, whom they represented as a set of the greatest tyrants, hypocrites, cheats, and deceivers that the world ever s a w " (Trumbull Papers, 439). Cf. ibid., 4 4 1 , 452, and Wm. Samuel Johnson MS Diaries (Conn. Hist. Soc.), sub Nov. 7, 1770. 132 PC 2 / 1 1 5 / 2 4 1 , 264; Wm. Samuel Johnson MS Diaries (Conn. Hist. Soc.) sub June 3 and i l , 1 7 7 1 ; Trumbull Papers, 482. See ibid., 475-76, for one reason for delay, absence of the Speaker at Committee. The death of the mother of Solicitor General Wedderburn was another cause of delay (3 Trumbull MSS, 55 a ) . 133 Case of Appellants, 23. William Samuel Johnson, counsel for the colony, stated the colony answer as follows: " A s the Deed of Sept. 1640 was first produced in Evidence at this Court [the 1738 commission], they here state their Objections to that Deed. Notwithstanding the Ingenious Arguments of Mr. Horsmanden as Mr. F. calls them, they do not seem now to deny its have been Executed by Uncas (and it is proved as well as a thing of this kind, at this distance of dme, can be proved) and if Executed by him it must have its legal Operation, and is in express Terms a Grant of all the Lands that did, or of right ought to belong to him except the Land then Planted confessedly inclosed the Land in Question, but they still Object—ist. That it was not recorded till 1736. Answer. This is not essential to the Validity of a Deed. 2ly. There was no Law for Recording Deeds at least till 21 years after, nor was it generally practised in the Colony, even long after the making of that Law. 3ly. Neither were their Deeds of 1659 and 1665 Recorded till 1 7 0 5 when they wanted to make use of them att Dudley's

A P P E A L S FROM R O Y A L COMMISSIONS only to give pre-emptive rights to the colony, not to surrender the property in the lands. T h e 1639 conveyance in trust to Mason and his heirs, the 1681 treaty, and many repeated acts of the General Assembly were so many recognitions that the ownership of the soil remained in the Indians. 134 Next, the Court, ours was recorded as soon as we had occasion to use it at the Court in 1738. Their Deed 1661 was not recorded till 1714. 2d. Objection. It was found in an old File of Musty Papers, and never made Use of or mentioned till 1738. Answer. It was found in the Archives of the Colony, the proper Repository of such Evidence. It is implicitly owned by Uncas in 1658 when he Petitioned the Court to Confirm the Land to Horton. It is implicitly referred to in the recital of the Charter in 1662. It is expressly Confirmed by Oweneco in his Deed to Samuel Mason in 1684. It is recited also almost verbatim, in Sir Henry Ashursts Petition in 1705 and a Copy of it given from the Files of the Generali Court by Secretary Kimberly before 1708. When should it have been mentioned? At the Court in 1705 they say, but the Answer is obvious, we denied its Jurisdiction and would make no defence. 3d. Objection. That it was meant to keep out the Dutch and other Setders who were meditating settlements there, and must be Construed only to give a right of Preemption. Answer. What Right it meant to give, must be determined by the words of it. It has been already Observed that it Imports to be an absolute Grant of ail his Lands not then Planted. 2ly. Admit it was made to keep out the Dutch and other Settlers, yet it is equally Conclusive both against him and them; as a transfer of all his Right, it must keep them and all others out as Claiming under him, on the other hand the best means to keep them out, if he wished to do it was to Transfer all his Right as he did by this Deed, but 3ly. There is no Evidence that the Dutch or any others wished to make setdements in this Country, at that Time. The Object of the Dutch was Trade, not Colonization, and for that purpose they had only a Trading House on Connecticut River, and never Attempted to make any settlements there. They were in possession of a better Country on Hudson's River, and yet did very little towards making any settlements, being Attentive only to their Trade. Their Deeds of 1661 and 1665 are in the same stile of Covenant not to sell to any other than Mason, and wc might as well infer that they too were meant

to keep out the Dutch. 4th. Objection. That the subsequent transactions shew they had Property. Answer. None Inconsistent with this Deed, the Indians planting Ground was reserved by this Deed. In 1659 they Conveyed that also, but were afterwards to be provided with Planting ground by the Assembly, and were admitted to a right to receive some farther Recompencc by the League 1681 so that they had all along some kind of Right to Transact about, but still Consistent with this Deed. Even if they had none such subsequent Transactions could never divest a Tide so clearly Conveyed. The Title once Conveyed by Deed, could never be revested but by Deed, or Act of equal Import. ;ly. They Ask. Did they ever make a Grant under this Deed? And Answer Neverl It is replied All the Grants to Lebanon, Bolton, Wyndham etc. were made under this Deed, and they had no Idea that they needed any farther Deed till they were about to apply for their Charter, when it was thought proper to buy in the Planting Land reserved by this Deed, and to Extinguish the whole Native Right" (MS Conn. Archives, 2 Indians, # 2 7 7 v-x). 134 Case of Appellant, 24. To this William Samuel Johnson retorted: "The Deed to Mason in 1659, they Insist was in Trust for the Indians, and this is the foundation of their whole Argument. If this Deed was not in Trust their whole claim is absolutely without foundation. Now we Insist ist That by the Act which they themselves set forth it could Enure only to the use of the Colony, that Law rendering it void to every other purpose. 2ly. That it was usual at that time and long after, for Individuals to take Conveyances in their own Names for the Use of the Colony and particular Town's etc. Most of our first Indian Deeds are so, and no wonder Mason who was Deputy Governor should so Purchase for the Colony. 3ly. It was taken at the rime they were about to apply for their Charter, and by the Words of it, all our Lands with all the Corn and corn Lands wheresoever plainly appears to have been Intended to Convey the Corn or Planting Lands exempted out of the Deed 1640, and to extinguish the whole Native Right, so that they might be

440

A P P E A L S F R O M R O Y A L COMMISSIONS

decree of the 1704 commission was praised as constituting the result of much deliberation and as founded on unexceptionable evidence, viz., the testimony of living witnesses. 135 On the other hand, the determination of 1743 consisted of conclusions not warranted by the premises or directly contrary to their plain import. The charter of Charles II granted no rights not supported by conquest or fair purchase for valuable consideration. The conveyances of trustee Mason could not prejudice the claims of the tribe consistently with principles of natural equity. As to grants made by particular Indians to particular subjects, acts of assembly had declared many of them null and void. 1 3 6 Finally, no argument could be drawn from length of possession in the instant case. 137 The respondent Governor and Company prayed for confirmation of the decree appealed from for several reasons. In the first place, at the time of the issuance of the 1704 commission the appellants had no remaining native rights —all such rights having passed to the colony under the 1640 and 1659 grants and the 1660 surrender of Mason. All rights gained by the Indians since issuance of the charter ought to be made out in courts of justice established under the charter. The lands reserved to the Indians were never expressly delimited, for they were to have only sufficient planting grounds at the discretion of the colony. Such grounds had always been supplied the Indians, and furthermore pecuniary satisfaction had been made for the remainder of their lands. Even admitting that the colony derived no title from the above transactions and that the Indians were entitled to certain reserved lands from which they had been dispossessed, yet the suggestions on which the 1704 commission was obtained were not made out unless it were shown that the disseisin was by some public act of the colony, and no such act was shown. Further, if any private person had disturbed the Indians in their possession, redress should have been sought in the ordinary courts of justice of the colony. 138 fully qualified to take a Grant from the Crown. 4ly. There are no Words in it Importing a Trust for the Indians, it is an absolute Conveyance, and nothing said of a Trust till long after. 5ly. If it was in Trust yet at least it Conveyed all the Native Right, and thenceforward the Indians, whatever Rights they had must hold under the English. They could at most have only an English Title founded upon and determinable by English Law, which equally Confounds their present Claim, and subverts the Argument for the Appellants in every branch of it" (MS Conn. Archives, 2 Indians, # 2 7 7 c, d). 135 Case of Appellants, 24. Agent Johnson remarked that "it is absurd to pretend they had Lights to found their Judgment upon

which can't now be obtained, when the Book of their proceedings is before the Court, and we know that the Commissioners in 1743 had every Article of the Evidence they had and infinitely more. The Commissioners both in 1738 and in 1743 were, if that can have any weight, Men of much greater Consideration in the Colonics than those in 1705, particularly Mr. Colden the present Lieut. Gov. of New York, a Native of Scotland and one of the most considerable Men we ever had in America" (MS Conn. Archives, 2 Indians,

#277 p).

136

Case of Appellants, 24. Ibid. 138 Case of Respondents (Governor and Company), 35. 137

APPEALS

FROM

ROYAL

COMMISSIONS

T h e a r g u m e n t s of the respondent landholders f o r a f f i r m a n c e d i f f e r e d s o m e w h a t f r o m those of the G o v e r n o r and C o m p a n y . F i r s t , it w a s asserted that the 1 6 4 0 deed o r the 1 6 5 9 deed together w i t h M a s o n ' s surrender w e r e either of t h e m sufficient to c o n v e y a legal interest to the c o l o n y under w h i c h the landholders w e r e purchasers f o r valuable consideration. T h e s e transactions i m p l i e d that the I n d i a n s h a d a g r e e d to live in submission to the l a w s of the c o l o n y . W h a t e v e r the operation of these deeds or the surrender, n o t h i n g w a s m o r e e v i d e n t than that the Indians and their agents intended their lands to be sold a n d cultivated, w i t h only a reservation f o r their o w n use. E v e r y transaction evidenced this intention except the t w o f r a u d u l e n t deeds of 1 6 6 5 a n d 1 6 7 1 , clandestinely intended f o r the private g a i n of M a s o n . 1 3 9

I n addition, the

respondents h a d paid valuable consideration f o r their respective lands to the I n d i a n s themselves. If it should turn out that such p a y m e n t c o u l d not b e f u l l y p r o v e d at such distance of time and space, yet it should not be p r e s u m e d against respondents or decided otherwise than by j u r y trial in the o r d i n a r y course of justice—at least not until it appeared that the Indians h a d s o u g h t redress w i t h o u t effect in the courts of the c o l o n y . 1 4 0 119 C a s e of Respondents (Landholders), 15. Cf. the statement of William Samuel Johnson that "The Colour they give to the Transaction in 1 6 7 1 , Sequestering the Lands to the Indians (as well as to many other Transactions in which respect they have throughout taken great Liberties) is unsupported by any Evidence. It was plainly Intended for the private benefit of Mason, or to humor the Indians, perhaps both, but could have no legal Effect with regard to the Tide. Their Observation that it was Recorded, Immediately, by which the Colony had Notice does not seem to be well founded, there is no Date to the Record of it in the Colony books and it could hardly be recorded before the deed 1665, at the foot of which it was originally wrote, and which was first recorded 15th of Aug. 1705, after the Controversy was begun and then not in the Colony Books, but at Stonington where Dudley's Court was to sit. It may be farther remarked with regard to this Sequestration that if all the Lands were Convc y ed to Mason in trust, as they pretend, and of which they produce this Instrument as proof, that it was but an III Execution of his Trust to Sequester so small a part of it for the Indians. Was he and his Heirs to have all the rest?" (MS Conn. Archives, 2 Indians, # 2 7 7 h). 140

Case of Respondents (Landholders), 15. Cf. the argument of counsel Johnson: "The

Deed in 1665 Is adduced to show the Trust and that the Indians and Mason yet thought they had Land, which they also Infer from the Treaty with Aramamet, and from other subsequent Transactions. Answer. No doubt they had a Right to Planting Land but of every other Right at least of all Native Right, the prior Deeds and Transactions, upon the most narrow Construction of them, clearly shew they had divested themselves. And the seeming Admissions of the contrary on the part of the Colony which are so often and largely Insisted upon, are fairly Accounted for by Considering the State of the Indians, unacquainted with Law and the Nature of Conveyances, barbarous and savage; and the situation of the Colony in those times when the Indians were very numerous and they equally few and feeble. No wonder that the Indians on the one hand should reclaim their Lands or want to sell them over and over again, nor on the other hand that the Colony should at times seem to admit their Claims, and make new Agreements with them, or purchases of them. It was perhaps Necessary, at least it was prudent. But it is apprehended that no Presumption arising from such political Conduct can defeat the fair Evidences of Title which the English early took Care to acquire, and afterwards were only solicitous so to Conduct towards them as if possible to keep them quiet. It never was an Objection of any weight in the American Courts where all those things

442

A P P E A L S F R O M R O Y A L COMMISSIONS

After hearing these arguments, the Committee postponed making any report until a future day. 1 4 1 A year later the Lord President, being pressed by the parties to give judgment, summoned the Master of the Rolls and the Speaker of the House to attend at the Cockpit to assist in the determination, but it was not until December 19,1772, that the Committee reported, advising affirmance of the judgment of the 1743 commissioners. 112 The Order in Council followed on January 15, 1773. 1 4 3 Thus, sixty-nine years after the date of the issuance of the first commission the cause came to a definitive termination. This case affords an extreme example of the difficulties faced in enforcing an unpopular adjudication against a colony enjoying quasi-sovereignty. Yet the cause is distinguishable in its difficulties in that one party, the Mohegans, although juristically regarded as sovereign, did not enjoy de jacto sovereignty. For true perspective on the operation of the royal commission plus appeal as an instrumentality of imperial control let us examine the several controversies between equally "sovereign" colonies. THE MASSACHUSETTS-NEW HAMPSHIRE BOUNDARY DISPUTE

While the Connecticut-Mohegan Indians controversy was running its prolonged course, the Privy Council resorted to use of the commission and appeal in setding a boundary dispute between Massachusetts and New Hampshire. 144 In the original charter to the Massachusetts Bay colony the northern boundary was set at "three English myles to the northward of the saide river called Monomack, alias Merrymack, or to the northward of any and every parte thereof." 1 4 5 It had been adjudged by the King in Council in July, 1677, that the northern boundary therefore extended parallel to the Merrimac River at a distance three miles to the north and at that river's source became an imaginary line to the South Sea. 1 4 ® As a result, when the 1691 Massachusetts charter was drawn, it did not include the latter portion of the boundary description. 147 This omission presented a question of interpretation as to whether are well understood, and it is hoped it will not be so here. If it is, actum est with regard to all American Titles. This is one reason among innumerable others why the cognizance of these matters should not be taken here, but that they should be left to their proper Forum, the Courts of L a w in America, where all these Circumstances are fully known and understood (MS Conn. Archives, 2 Indians, # 2 7 7 g, h). 141

PC 2 / 1 1 5 / 2 6 4 . PC 2 / 1 1 6 / 3 4 0 - 4 1 , 5 1 3 ; 3 Trumbull MSS, 89, 102 b, ι i l a. 14S PC 2 / 1 1 7 / 1 0 . 144 The history of the cause is related with

142

variant completeness and accuracy in Fry, New Hampshire As a Royal Province, 2 4 1 - 6 4 ; S. A . Green, The Boundary Line Between Massachusetts and New Hampshire ( 1 8 9 4 ) ; and by the same author, The Northern Boundary of Massachusetts in its Relations to New Hampshire, 7 Proc. Amer. Antiq. Soc. (N.S.), 1 1 - 3 2 ; 2 Belknap, History of New Hampshire, 1 0 1 - 7 3 ; 2 Hutchinson, Hist. Col. and Prov. Mass. Bay, 290-96. 145 3 Thorpe, Federal and State Constitutions, 1847. 140 19 N.H. State Papers, 3 0 3 - 7 . 147 3 Thorpe, op. cit., 1876.

A P P E A L S FROM R O Y A L COMMISSIONS the area granted under the 1691 charter was coextensive with the area originally granted, for New Hampshire claimed that its southern boundary ran due west from a point three miles north of the mouth of the Merrimac River at the Atlantic Ocean as far as Massachusetts extended.148 Controversy would have been averted if the entire course of the river had been in the same latitude, but at some distance inland the river diverted to a north and south course. 14 · Clashes occurring between the provinces over jurisdiction to tax, to levy military service, and to issue judicial process, several abortive attempts were made at boundary delimitation by the two governments. 150 In 1720 the weaker colony, New Hampshire, determined upon resort to England for relief against the pretensions of her southern neighbor. 151 With no succor forthcoming and Massachusetts making extensive town grants in the controverted territory, the New Hampshire Assembly, in 1726, petitioned the King in Council that the dispute be settled by an explanation of the Massachusetts charter.182 The petition, however, was consigned to administrative limbo—the Board of Trade. 1 5 3 In the same year Massachusetts offered to appoint commissioners to settle the boundary, but New Hampshire rejected the offer, since the matter was depending before the King in Council. 154 Three years later, in 1729, committees were appointed by both colonies at the behest of Haverhill inhabitants, but no settlement evolved. 155 The New Hampshire supplication to the imperial authorities finally bore 119

19 NJi. State Paperi, 193, 195. See the maps in 19 N.H. State Papers facing p. 628. li0 Ibid., 180-91. 151 For the instructions to agent Henry Newm a n sec ibid., 193-96, 199. PC 2/89/276; ig N.H. State Papers, 2002 0 1 ; Bouton, History of Concord (1856), 7 7 82. O n September 12, 1722, the Board of Trade had agreed to take agent Newman's memorial into further consideration at another opportunity, but sucli opportunity apparently never arose ( / C T P , 1718-22, 380). i « P C 2/89/290; 19 NJi. State Papers, 2023. T h e Board of Trade drafted letters to the lieutenant-governors of the two colonies desiring them to send over exact descriptions of their respective boundaries ( / C T P , 1722/3-28, 292, 295). See also ibid., 337-39, 34ΐ~43· F ° r the effect of the application upon the landgranting conduct of Massachusetts see J. Smith, The Massachusetts and New Hampshire Boundary Line Controversy, 1693-1740, 43 Mass. Hist. Soc. Proc., 77-88. 1S4 19 NJi. State Papers, 201-2, 204-5. In September, 1727, Jeremiah Dummer, Massa118

chusetts agent, wrote that he had applied, according to instructions, "that indifferent persons might be named at commissioners to examine into the allegations and proofs of both sides on the spot, and send home their report tor his Majesty's royal sanction; but the governor of New Hampshire having obstinately refused this equal method upon several pretenses, and particularly that they want only the King's explanation of a doubtfull expression or two in our charter and in their deed. The Lords seem willing to look into it; though I am satisfied they will find it attended with greater difficulties than they at present imagine" ( 5 2 MS Mass. Archives [Letters, 1724-38], 39596). 155

The Assembly of New Hampshire was of the opinion that the tides of the Haverhill inhabitants would have to be decided by the common law and further that the matter was before the King for settlement. Therefore, the committee for New Hampshire was only authorized to run a line, in accordance with that colony's claims, to stand until the royal pleasure was known (19 NJi. State Papers, 2 0 6 - 1 0 ) .

A P P E A L S FROM R O Y A L COMMISSIONS fruit in 1730, when Jonathan Bclcher, commissioned governor of both provinces, was instructed to propose to both assemblies that impartial persons be selected from neighboring royal colonies endowed with sufficient powers to settle the boundary dispute. But their proceedings were to be of no effect until the royal pleasure was signified thereupon. 1 5 ® T h e legislative action recommended under this instruction resulting in irreconcilable authorizations in the respective colonies, 1 5 7 it was proposed by Belcher to the N e w Hampshire council in May, 1 7 3 1 , that committees from the respective colonies meet to agree upon a bill to answer the intent of the royal instruction. 158 T h e House of Representatives at first characterized such procedure as futile and proposed resort to the K i n g in Council, but they later agreed to a committee meeting on June 2 2 , 1 7 3 i · 1 5 9 W h e n the session of the Massachusetts General Assembly prevented the scheduled meeting, the N e w Hampshire lower house refused to sanction postponement and proposed a representation to England in the matter. 1 8 0 A representation to the Board of Trade was presented, but the lower house also consented to a later meeting of the committees. When it turned out that the claims of Massachusetts appeared to be exorbitant in the eyes of the younger colony, no decisive action eventuated. 1 6 1 In his early days of office, Belcher proposed a regard for the N e w Hampshire claims greatly at variance with his later partiality to Massachusetts. 162 In March, 1732/3, N e w Hampshire returned to the conciliar front with a petition complaining of Massachusetts encroachments and praying settlement of the disputed boundaries. 1 6 3 T h e matter being referred to the Board of Trade, the agent of the older colony delayed action thereon, seeking authority to have the matter referred to commissioners from neighboring colonies. 164 In February, 1733/4, Massachusetts consented to a determination of the boundary by such commissioners, saving determination of the property of private 156

2 Labaree, Royal Instructions, #973. For the N e w Hampshire authorization see 1 9 N.H. State Papers, 2 1 1 - 1 2 ; for that of Massachusetts see ibid., 2 1 3 - 1 5 . 158 Ibid., 2 1 7 - 1 8 . 159 Ibid., 2 1 7 - 1 9 . For the appointment of the Massachusetts committee see ibid., 2 1 6 . 190 Ibid., 2 1 6 , 2 2 0 - 2 3 . 141 For the petition see ibid., 2 2 3 - 2 5 ; for the abortive committee proceedings see ibid., 2 2 5 3 5 . Cf. 4 Doc. and Ree. Rei. Prov. NJï., 610157

13·

162

ι Belcher Papers, 6 Mass. Hist. Soc. Coll. (6th ser.), 7, 9 - 1 1 , 1 6 - 1 7 , 1 4 7 - 4 9 · 103 PC 2 / 9 2 / 1 3 7 ; 19 N.H. State Papers, 2 3 5 48.

164 19 N.H. State Papers, 249-51; PC 2 / 9 2 / 1 4 3 ; ]CTP, 1728/9-34, 342-44. Wilks, for Massachusetts, protested that the petition was from the lower house only; that the sole power of settling lands was in the Governor and Council, who had not joined in the application; that after settlement it might be objected that without their being heard the determination was not binding. But the Board refused to allow the objection. New Hampshire first desired explanation of the charter language, but the Board, favoring a commission, questioned Wilks as to his authority to consent thereto (52 MS Mass. Archives [Letters, 1724-38], 4 3 0 - 3 2 ) . Cf. 1 Belcher Papers, 3 1 6 , 3 3 2 - 3 3 , 356, 432.

APPEALS FROM R O Y A L COMMISSIONS

445

persons. 1 " 5 N e w Hampshire then insisting that the dividing-line point of commencement was capable of conciliar determination before issuance of a commission, the matter was referred to the crown law officers. 166 After hearing the parties, the latter were of the opinion that the boundary was to be taken according to the intent of the 1691 charter from three miles north of the mouth of the Merrimac River where it entered the Atlantic. The Board of Trade, after further hearings, advised appointment of commissioners from neighboring provinces to establish the controverted boundary line. 187 Copies of the crown law officers' opinion were to be given the parties for information of the commissioners in case doubts should arise upon the construction of the 1691 charter. On December 15,1735, the Lords Committee, after further hearing the parties, adopted the Board of Trade proposal, with the Massachusetts proviso that private property be unaffected thereby. 108 T h e Council thereupon, in January, 1735/6, ordered the Committee to nominate commissioners. 169 T h e Board of Trade proposing as commissioners the five eldest councilors in the respective colonies of New York, New Jersey, Nova Scotia, and Rhode Island, the Committee, in October, 1736, accepted the nominees with the exception of one interested Nova Scotia councilor, and ordered the Board of Trade to draft directions for such commissioners. 170 The Board of Trade, in December, 1736, represented that the commissioners should first meet on August ι, 1737, at Hampton, New Hampshire, that five commissioners should constitute a quorum, and that liberty of an appeal to the King in Council should be granted to either party aggrieved by the commission determination. The appeal was to be entered within six weeks after delivery of a copy of the determination to public officers of the respective provinces. During the meeting of the commissioners the governors were to keep their respective assemblies sitting or under short prorogations in order to decide whether an appeal should be taken. 1 7 1 Upon the objection of Massachusetts, the time limited for taking the appeal was altered to six months and the provision as to the as165 19 NJi. State Papers, 2 5 1 ; JCTP, 1728/ 9-34, 3 7 1 , 375. The General Court advised Wilks to avoid Rhode Islanders on the commission, queried New Yorkers (bccause of the distance and the bias created by the disputed boundary with Massachusetts), and favored Connecticut members. Since private property was not to be affected, the General Court favored a clause that between conflicting grants the oldest grant should govern, regardless of the government in which such grant fell (52 MS Mass. Archives [Letters, 1724-38], 434~36)·

160

19 N.H. State Papers, 250-53, 2 5 6 - 5 8 ; JCTP, 1728/9-34, 376. 1157 19 N.H. State Pipers, 256-58; 4 Doc. and Ree. Rei. Prov. N.H., 848-50; 52 MS Mass. Archives (Letters, 1724-38), 447-48; / C T P , 1734/5-41, 3, 1 1 - 1 2 , 17, 19. 1 Bs 19 N.H. State Papers, 259-61. 109 ibid., 2 6 1 - 6 2 . ' 7 0 Ibid., 262; 3 APC, Col., # 1 0 2 ; JCTP, 1734/5-41, 90, 97-98; 52 MS Mass. Archives (Letters, 1724-38), 456-57. 171 19 N.H. State Papers, 265-68; JCTP, 1734/5-41, 144-45, 147, 1 5 0 - 5 1 .

446

A P P E A L S FROM R O Y A L COMMISSIONS

semblies being kept in session was omitted. Affirmance of the commission determination by the King in Council was to be final and conclusive for all parties. 172 Pursuant to an Order in Council, the commission issued under the Great Seal on April 9,1737. 1 7 3 In the interim Massachusetts, far from idle, had been lending de facto support to its claims by abetting settlements in the disputed regions. 174 In April, 1737, a committee of assemblymen and councilors was appointed by the respective New Hampshire legislative bodies to prepare and present the New Hampshire cause before the commissioners. 175 Governor Belcher, then, by several prorogations kept the New Hampshire assembly inactive until August 10, despite receipt of letters from the Board of Trade directing recommendation to the respective assemblies to appoint the public officers required by the commission and to draft the statement of claims to be presented to the commissioners. 17 ® When Belcher finally communicated the recommendation on August 10, it appeared that to prevent an ex parte hearing the committee previously appointed had taken necessary action. 177 After considering the pleadings and evidence of both colonies at several meetings during August, the commissioners, on September 2, stated that some doubt had arisen over a point of law. Therefore, in the nature of a special verdict, it was resolved that if the 1691 Massachusetts charter granted all the lands held under the earlier charter, then the boundary was to be a line running parallel with the Merrimac River at a distance of three English miles north of the river mouth, beginning at the south side of the so-called Black Rocks at the low water mark, and from thence to a juncture of the Pemogewasset and Winepesiokee, and from thence due north three English miles, and from thence due west until it met with another province. If otherwise, then the line was to run due west from such starting point until it met with another colony. 178 The commissioners then adjourned until October 14, when all exceptions or appeals were to be received. 179 Immediately following rendition of this "judgment" the Massachusetts legislature voted an appeal from the judgment and the appointment of a com172

19 N.H. State Paperi, 268-72; 3 APC, Col., # 1 0 2 ; 4 Doc. and Ree. Rei. Prov. N.H., 862. Cf. ¡CTP, 1734/5-41, 164-65, 175. The provision as to the finality of the affirmance of the King in Council on appeal may have been designed to prevent issuance of a commission of review. 173 1 9 NJi. State Papers, 274-76. The sum οί L 1 3 5 / 4 / 6 was disbursed in suing out the commission (ibid., 577; 1 5 Jour. House Rep. Mass. [ 1 9 3 4 ] , 84).

174

24 N.H. Slate Papers, 749, 7 5 1 , 755, 760-65; Fry, op. cit., 252-55. « » 4 Doc. and Ree. Rei. Prot/. N.H., 732. 17e lbid., 734-35, 863-65. See also 15 Jour. House Rep. Mass., 1 2 4 - 3 2 . 177 4 Doc. and Ree. Rei. Prov. N.H., 734-35; 19 NJi. Slate Papers, 2 8 1 - 8 2 . 178 For the various proceedings see ibid., 28 ι 392. See also 5 MS Mass. Archives (Colonial, 1728-74), 70-101. 179 19 N.H. State Papers, 392-93.

APPEALS FROM R O Y A L COMMISSIONS

447

mittee to prepare the petition o£ appeal. 180 But in N e w Hampshire, Belcher prorogued the legislative until October 13, so that no effective preparation for taking an appeal could be made. 1 8 1 When reconvened on October 14 the New Hampshire council adjourned without taking any action on an appeal, so that an appeal hastily drawn and voted by the assembly alone was presented. 182 Massachusetts, presenting a properly authorized appeal, objected to the reception of the New Hampshire appeal as being the action of only part of the legislature, contrary to the terms of the commission. 183 Nevertheless, the commissioners saw fit to receive the New Hampshire appeal. 184 T h e N e w Hampshire council refused to participate in presenting the appeal or in defending against the Massachusetts appeal, so the burden fell upon the assembly to be defrayed by popular subscription. 185 In February, 1737/8, agent John Tomlinson presented at the Council Board in London the petition of appeal of New Hampshire and also a complaint of the lower house against Governor Belcher with respect to his conduct in execution of the late commission. 186 On July 20, 1738, Massachusetts presented its appeal, to which Tomlinson duly entered an appearance. 187 In October, Massachusetts petitioned for dismissal of the N e w Hampshire appeal, on the ground that it was improperly received by the commissioners, that the petition of appeal presented by Tomlinson was improperly authorized, and that such petition of appeal improperly went outside the record. 188 Upon argument of the motion for dismissal, counsel for N e w Hampshire relied mainly upon traducing the partial conduct of Belcher. But since this matter was not yet before the Committee for judicial consideration, the Committee ordered 180

Ibid., 393-94; 15 ¡our. House Rep. Mass., .57-58. 181 4 Doc. and Ree. Rei. Prov. NM., 745, 829; 19 N.H. Slate Paperi, 430. 182 4 Doc. and Ree. Rei. Prov. N.H., 745-47, 830. For the alleged attitude of the Council see 19 N.H. State Paperi, 456. 1 S3 For the Massachusetts appeal see J 9 N.H. State Paperi, 395-98; for the protest against reception of the New Hampshire appeal see ibid., 399, 401-2. Cf. 15 ¡our. House Rep. Mass., 160-65. 184 19 N.H. State Papers, 399. 185 Ibid., 424-25. Compare the Massachusetts attitude, 15 lour. House Rep. Mass., 170, 173. 186 PC 2/94/411, 414. For the petition and appeal see 16 Jour. House Rep. Mass., 160-69. For comment of the House of Representatives upon this petition and appeal see ibid., 169-73; 19 N.H. State Papers, 452-57. For the com-

plaint and order thereon see ibid., 428-32. 187 PC 2/94/599, 603. The General Court, in December, 1738, expressed fear that the appeal would be referred by the Privy Council to some other body and that the relative positions of the two provinces might elicit sympathy from such a body favorable to New Hampshire. Therefore, it was advanced, it would greatly tend to full understanding of the cause if it might not be referred to any other board or boards, but might be argued fully and first, as well as finally, before his Majesty and his Privy Council (19 Ν M. State Papers, 451). For the part played by the Masonian claims in the appeal see Hammond, The Mason Title and Its Relation to New Hampshire and Massachusetts, 26 Amer. Antiq. Soc. Proc. (n.s.), 253-55. 188 PC 2/95/4; 19 NM. State Papers, 440-48.

448

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the Massachusetts petition dismissed, but without prejudice to raising the objections when the merits of the appeal were entered into. 1 8 9 In January, 1738/9, a further petition of complaint against Belcher was presented, with a prayer for separation of the two governments. 1 9 0 This memorial obviously constituted part of the N e w Hampshire strategy to influence the outcome of the appeal by prior consideration of the complaints directed against Belcher 1 9 1 —strategy to which the Lords Committee was amenable, for after hearing counsel and considering evidence in November, 1739, the Committee reported that Governor Belcher had acted with great partiality in his several prorogations of the N e w Hampshire assembly. 1 9 2 T h e n , early in March, 1739/40, the Committee proceeded to hear the appeal proper, with Dudley Ryder and William Murray presenting the N e w Hampshire argument and John Strange and R. Hollings appearing for Massachusetts. 1 9 3 T h e studied argument of Massachusetts was in vain, for tht: Committee insisted upon proof that the discovery, name, and courses of the Merrimac were fully known at the granting of the first charter—a burden of proof impossible to sustain. Furthermore, the Committee regarded it as impossible for a river running north and south to constitute a northern bounda r y . 1 9 4 Therefore, the Committee reported that the northern boundary of Massachusetts should be a "similar Curve line pursuing the Course of Merrimack River at three miles distance on the North side thereof," beginning at the Atlantic Ocean and ending at a point due north of "Pantucket Falls"; from thence it was to be a straight line drawn due west until it met with another province. T h e remainder of the commission determination was affirmed. 1 9 5 Apparently little attention was paid to the "special verdict" of the commissioners. T h e Privy Council, approving the Committee report, ordered preparation 189 PC 2 / 9 5 / 1 5 , 37. Insinuation was earlier made by counsel William Murray at the Council Board that Belcher had been bribed into partiality to Massachusetts by ¿1,000 in new tenor bills voted him for extraordinary services on the very day the commissioners met to receive the appeals. See Richard Partridge to Lord Wilmington, Sept. 1, 1738, and the annexed memorandum defending Belcher against the charges ( Wilmington MSS [L.C.]). 190 PC 2/95/82. Cf. the Massachusetts comment upon this memorial ( 1 9 N.H. State Papers, 4 6 1 - 6 4 ) . 11,1 Ibid., 460-61, 466-67. Cf. the confidence of Belcher, 2 Belcher Papers, 7 Mass. Hist. Soc. Coll. (6th ser.), 242-43. l M 3 APC, Col., # 4 3 2 . For the complain-

ants' printed case, argued by J. Browne and William Murray, see 19 N.H. State Papers, 5 4 1 - 5 1 . For respondent Belcher's case, presented by J. Strange and R. Hollings, see ibid., 552-64. See also the comment of Bclcher, 2 Belcher papers, 276-77. 193 PC 2/95/642. 665. For the New Hampshire conciliar "case," see 19 N.H. State Papers, 565-600; for that of Massachusetts, see ibid., 601-28. 104 Ibid., 468-69. The Massachusetts agents wrote that the Committee considered New Hampshire "quite out of the case" and that the question was between Massachusetts and the crown (ibid., 470). 195 3 APC, Col., # 4 3 2 . Belcher regarded the settlement as "intirely in favour of New Hampshire" (2 Belcher Papers, 292).

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of a gubernatorial instruction to enforce the report. 198 Later attempts to have the line altered as inconveniently severing townships were unsuccessful. 1 9T W e have already seen one aftermath of this boundary settlement in the litigation between the Penny Cook and Bow proprietors. 198 Although the commission and appeal proved a more practical device in this instance than in the Connecticut-Mohegan Indians controversy, the inclinations of dually commissioned Belcher almost led to the undoing of N e w Hampshire. THE MASSACHUSETTS-RHODE ISLAND BOUNDARIES

A second instance in which a commission and appeal was employed to settle an intercolonial boundary dispute is found in a long-standing controversy between Massachusetts and Rhode Island. 199 T h e 1663 charter to the latter colony granted the territory "three English miles to the east and north-east of the most eastern and north-eastern parts" of Narragansett Bay. 200 W h e n the Plymouth colony laid claim to this area, the royal commissioners of 1664 appointed Narragansett Bay, the natural boundary of each colony, to stand as the boundary until the royal pleasure was further known. 2 0 1 But the royal pleasure was not immediately forthcoming, and various unsuccessful attempts were made to secure a permanent settlement by Rhode Island and by Massachusetts Bay. 2 0 2 Finally, when the appointment of commissioners by both colonies, in 1733, was rendered futile by inability to agree upon an umpire, 203 Rhode Island decided to "appeal" to the King. 2 0 4 In December, 1734, therefore, a petition was presented to the K i n g in Council " e 3 APC, Col., # 4 3 2 ; 2 Labaree, Royal Instructions, # 9 7 4 ; ]CTP, 1734/5-41, 3293°· 3î6> 352. Belcher ascribed delay in the issuance of the instruction to Tomlinson's desire to make a handle against Belcher in an effort to secure a separate government for New Hampshire (2 Belcher Papers, 322). 1 9 7 3 APC, Col., # 4 3 2 . A question of interpretation of the conciliar judgment also arose as to whether the lands between the northern boundary of Massachusetts and the southern boundary of New Hampshire were under any jurisdiction (2 Belcher Papers, 377-78, 52223). For an account of the survey see 32 New England Historical and Genealogical Register (1879), 3 2 3 - 3 3 · 188 Supra, pp. 233-34. 1 9 9 The history of the cause is intermittently related in 2 Arnold, History of the State of Rhode Island (i860), 111-34. For a partisan account see 2 Hutchinson, Hist. Col. and Prof. Mass. Bay, 304-5.

6 Thorpe, Federal and State Constitutions, 3220. 2 0 1 2 Ree. Col. RJ., 128. Cf. 2 Richman, Rhode Island; Its Maying and Its Meaning (1902), 243-44. For the charter provision under which Plymouth claimed, see 3 Thorpe, op. cit., 200

1843. 4 Ree. Col. RJ., 445, 470; ι Correspondence of the Colonial Governors of Rhode Island, 18; 2 Acts and Res. Prov. Mass. Bay, 624. 2 0 3 For the statutes see 2 Acts and Res. Prov. Mass. Bay, 665; 4 Ree. Col. RJ., 482; Governor Wanton to Richard Partridge, 1733 (R.I.-Mass. Boundary MSS). 2 0 4 4 Ree. Col. RJ., 482, 491; ι Correspondence of the Colonial Governors of Rhode Island, 65-66. Presumably this appeal was taken under the charter provision allowing appeals in public controversies with other New England colonies; see supra, p. 52. 202

A P P E A L S FROM R O Y A L COMMISSIONS praying determination of the ancient controversy and interim instructions to prevent violence in the disputed territory.205 The petition being referred by the Committee to the Board of Trade, it languished there until May, 1738, when copies of the Board's representation thereon were ordered given to both parties.206 This representation advised appointment of commissioners from neighboring provinces to settle the dividing line and immediate orders to the respective governors to allow continuance of peaceful possession without molestation.207 Francis Wilks, Massachusetts agent, then petitioned the Committee to be heard by counsel against the issuance of any new commission; that the earlier determination by royal commissioners might stand; and that the Rhode Island petition be dismissed.208 Upon considering the report and petition, the Committee advised rejection of the latter and adoption of the former. The Committee further represented that the petition appeared frivolous, vexatious, and designed to delay settlement of the boundaries. To prevent such petitions in futuro, the Committee conceived that it might be necessary to order that no applications to be heard against determinations of the Board of Trade, other than those made ex parte, should be entertained unless sufficient security was given to pay such costs as should be awarded. The same rule was proposed in all cases coming before the Committee in consequence of any commissions issued or to be issued on conciliar order for settling boundaries or other special matters in dispute in the American colonies.209 The King in Council approving, the Board of Trade was commanded to lay before the Committee nominees for the commission. Thereupon, the five oldest councilors, with one exception, of New York, New Jersey, and Nova Scotia were nominated and approved in January, 1738/9. The Board of Trade, then ordered to draft proper heads for a commission, submitted articles practically identical with those incorporated in the previous New Hampshire-Massachu205

3 APC, Col., # 3 2 3 . For copies of the "appeal" see RJ.-Mass. Boundary MSS; 6 MS Mass. Archives (Colonial, 7724-75), 539-42. In June, 1734, the General Assembly had ordered all colony officers to forbear exercising jurisdiction in the controverted land, since the matter was sent home for determination (4 Ree. Col. R.I., 498), but the order was repealed in October (ibid., 500). 208 3 APC, Col., #323; ι Correspondence of the Colonial Governors of Rhode island, 78-79. For a January 5, 1735/6, answer of Massachusetts agent Wilks, containing twenty points, and the replication thereto by agent Partridge, see RJ.-Mass. Boundary MSS. 207 3 APC, Col., # 3 2 3 . Massachusetts counsel argued strongly that the right of the province was so clear that there was no room to leave

it so much in doubt as to appoint commissioners, but the Board was inclined toward a commission and Rhode Island pressed for one (52 MS Mass. Archives [Letters, 172438], 470). Cf. ι Correspondence of the Colonial Governors of Rhode Island, 86-87, 96-97. Hutchinson's chronology is faulty in his statement that "Rhode Island, encouraged by the ill success of the Massachusetts in the controversy with New-Hampshire, applied to his majesty to appoint commissioners to settle the line between the two governments" (2 Hist. Col. and Prov. Mast. Bay, 304). 208 3 APC, Col., # 3 2 3 . 209 Ibid.; cf. ι Correspondence of the Colonial Governors of Rhode Island, 98-99; 52 MS Mass. Archives (Letters, 1724-38), 474.

A P P E A L S FROM R O Y A L COMMISSIONS setts commission. 210 In the meantime another effort at local settlement was made by commissioners of the two colonies meeting to determine the bounda r y . 2 1 1 But by October, 1739, the colonies, unable to agree, were reduced to awaiting a royal commission. 212 The proposed commission was drafted, approved, and issued under the Great Seal on September 4, 1740. An additional commission meeting within three months of the determination was provided to allow either or both parties to enter appeals. If neither party appealed at that time, the determination, confirmed by the King in Council, was to be conclusive. 213 The initial meeting of the commissioners was held at Providence, Rhode Island, on April 7, 1741. In swift succession preliminaries were disposed of as the commission was read, clerks appointed, designated representatives presented, and the claims of the parties read. 2 1 4 After a survey of the disputed lands had been ordered, Rhode Island commenced to present its proofs on June 3 . 2 1 0 Presentation of evidence by both parties was continued almost daily until June 23· 2 1 8 On the next day Daniel Updike and William Bollan presented the Rhode Island argument; the Massachusetts Bay case as presented by John Read, Samuel Wells, and William Shirley occupied three days. On June 27 the Rhode Island counsel closed their case, Massachusetts being allowed an answer to a new point raised by the smaller colony with a reply thereto by Rhode Island. 217 On June 30 the commissioners rendered their judgment. As to the claim of Massachusetts, as based upon a grant from the Council of N e w England, it was declared that the patent to that body had not been produced and that the recital thereof in the 1629 grant to William Bradford and his associates was insufficient evidence as against a royal charter. The Council of New England, being a corporation, could not create another corporation, and no jurisdiction within the royal dominions in America could be held by prescription. The 1664 determination of the boundaries of Rhode Island and 210

3 APC, Col., # 3 2 3 . An attempt was made to have the commission issue by Order in Council and not under the Great Seal as an economy measure ( i Correspondence of the Colonial Governors of Rhode Island, ioo-ioi), but the Committee did not think such a commission proper (ibid., 1 0 3 - 4 ) . The cost of a commission under the Great Seal was about ¿ 1 3 5 sterling. For the heads of the commission proposed by Rhode Island see ibid., 131-38. 211 4 Ree. Col. R.I., 559-60; 6 MS Mass. Archives (Colonial, 1734-75), 547-48, 54950, 558-59; 53 MS Mass. Archives (letters, 1738-50), 38-39. 212 4 Ree. Col. R.I., 562; 53 MS Mass. Archives (Letters, 1738-50), 54-55.

213

3 APC. Col., # 3 2 3 ; 4 Ree. Col. RJ„ 587-90; j 5 four. House Rep. Mass., 1 5 0 - 5 2 . 214 MS Proc. RJ.—Mass. Boundary Comm., 1741 (transcript in R.I. Sute Archives), 1 - 9 . The copy transmitted to England is in CO 5 / 1 3 0 3 . In December, 1740, Rhode Island had appointed both a committee to prepare the colony's case for representation before the commissioners and the two public officers required by the commission (4 Ree. Col. RJ., 590-91). 215 MS Proc. R.l.-Mass. Boundary Comm., 1741, 1 4 - 1 8 . 2ie lbid., 18-224. 217 Ibid., 225-27.

A P P E A L S F R O M R O Y A L COMMISSIONS Plymouth was only a temporary order for preserving border peace without determining the rights and titles of either party. Finally the boundary line was determined largely in favor of Rhode Island, a portion of the Gore and of the eastern shore of Narragansett Bay being given to that colony. 218 When the commissioners reconvened, on September 4, Massachusetts entered an appeal from all parts of the judgment, Rhode Island from that part relating to the eastern boundary line. 219 In July, 1742, the petition and appeal of Rhode Island from several parts of the determination of the commissioners was referred to the Committee. In September the cross-appeal of Massachusetts from every part of the determination was similarly referred. 220 But no further action was taken in the matter until toward the close of 1744. Then, after four hearings of counsel, the Committee recommended dismissal of both appeals and confirmation of the determination of the commissioners. 221 Before the King in Council approved this report, Massachusetts, in February, 1745/6, presented a petition praying that upon consideration of certain evidence the King would reverse the June, 1741, commission judgment and affirm that of 1664; or, alternatively, that the King issue a commission of review, since the determinations of two previous sets of commissioners were in conflict. Thereupon, Rhode Island petitioned for dismissal of the Massachusetts petition as a precedent of the most dangerous kind and prayed that the Committee report be laid before the King in Council according to the constant practice in all other judicial appeals. 222 Agent Partridge also clandestinely 2l

*lbid., 240-45. The exact judgment was that "the Eastern boundary of the said colony of Rhode Island and Providence Plantations towards the Massachusetts Bay is, shall be and runs from a certain point where a meridian line passing through Pawtucket Falls cuts the South boundary of the colony of the Massachusetts Bay south to Pawtuxet Falls then southerly along the eastward side of Seconk River and the river which runneth towards the town of Providence to the southwest corner of Bullock's Neck then northeast three miles then along the aforesaid lines running at three miles distance from the northeasternmost parts of the said bay to the said bay at or near Towoset Neck, then as the said bay runs to the southermost part of Shawamset Neck and then in a strait line to aforesaid point opposite to the said neck then East three miles and then along the aforesaid lines running at three miles distance from the eastermost parts of the said bay to the sea, all which lines are to be run by making the

proper allowance for the variation of the magnetick needle from the meridian." See the map in 2 Arnold, op. cit., facing p. 1 3 2 . For the Massachusetts attitude toward the judgment see 2 Hutchinson, op. cit., 305. 219 MS Proc. RJ.-Mais. Boundary Comm., 1741, 245-49. For the colony act authorizing the appeal see 5 Ree. Col. RJ., 29-30. Later, / 200 was appropriated to prosecute the appeal (ibid., 35). For the provincial authorization see 6 MS Mass. Archives (Colonial, 1724-75), 572. Christopher Kilby and Robert Auchmuty were designated agents to handle the appeal (ibid., 573). 220 PC 2/97/204, 235. For copies of the two petitions and appeals see R.I.-Mass. Boundary MSS. 221 PC 2/98/562, 583, 591, 594. Cf. ι Correspondence of the Colonial Governors of Rhode Island, 289; 53 MS Mass. Archives (Letters, 1738-50), 184-85. 2 2 - PC 2/99/367-68. Cf. 5 Ree. Col. R.I., 116-17, 121 ; ι Correspondence of the Colo-

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453

represented the injustice of the Massachusetts petition to Chief Justice Willes, a prominent Committee member. 223 T h e Committee, after considering both petitions and hearing counsel, reported that on appeal both parties were fully heard by counsel and given full liberty to lay all proper evidence before the Committee. In its opinion the Massachusetts petition was designed not only to delay settlement of the boundaries but also to introduce a new method of conciliar proceeding by admitting of rehearings or of a commission of review after Committee report. As Massachusetts could not produce any precedents of rehearings on appeals (all former attempts having been discountenanced as attended with dangerous consequences) and did not present any new evidence, the Committee abided by its former opinion. Therefore, on May 28, 1746, the King in Council finally confirmed the December 1 1 , 1744, report and dismissed the Massachusetts petition. 224 When the conciliar order reached the colonies, Rhode Island commissioners ran the line ex parte, no commissioners for Massachusetts appearing. 2 2 5 In this instance the commission and appeal proved an effective device for settlement of intercolonial boundaries. The denial of a commission of review prevented the prolongation found in the Connecticut-Mohegan Indians controversy. THE CONTROVERSY BETWEEN NEW YORK AND NEW JERSEY

Imperial insistence upon the commission and appeal as the procedural norm in settlement of controverted intercolonial boundaries is seen in the dispute between N e w York and New Jersey, 226 a cause in which no appeal was taken, nial Governors of Rhode Island, 309—10, 314, 330-31, 343-44. 357. 390, 403. 408-11. For the Rhode Island petitions see ibid., 317-20,

39Î-94·

223 Partridge, in a Feb. 14, 1745/6, letter to Governor Wanton related that having left his answer with Willes, C. J., he received notice to attend the Chief Justice. He went accordingly "and had a fair opportunity and a full time of discourse with the Chief Justice setting forth the hardship it was to us to have our cause so long depending by the eyelids, etc., upon the whole he told me that as the petitions were directed to the King the Committee could do nothing on them till they were referred back to them from the King in Council and advised to get them referred as soon as I could and promised that he would speak himself to the clerk of the Council to get it done, and sayd he had read over our answer and that it was very full;

which I apprehended was favourable and looked well . . . but I think this conversation with the Lord Chief Justice should not be made too publick" (RJ.-Mass. Boundary M SS). 22 < PC 2/99/452. 492· 226 5 Ree. Col. R.I., 197-201; 2 Correspondence of Colonial Governors of Rhode Island, 95-97226 For detailed recitals of the controversy see Fisher, New Jersey as a Royal Province, 2 1 0 39; Lilly, The Colonial Agents of New York and New Jersey (1936), 170-97; W . A. Whitehead, Circumstances Leading to the Establishment in 7769 of the Northern Boundary Une between New Jersey and New York, 8 Proc. N.J. Hist. Soc. (1859), 157-86. For a collection of documents relating to the controversy see 2 Report of the Regents of the University on the Boundaries of the State of N.Y. (comp, by D. J. Pratt, 1884), 598-801

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but which we propose to examine for the light it throws upon crown policy on the eve of the Revolution. The genesis of this dispute was the indefinite description of the northern boundary in the release from the Duke of York in 1664 to Berkeley and Carteret. 227 Some attempts made to settle the line, inspired largely by the N e w Jersey proprietary interests, culminated in the 1719 issuance of commissions in the respective colonies appointing commissioners to run the Une. 228 Although accord was reached upon the western locus of the division line, the New York commissioners refused to complete the demarcation, alleging imperfection of the surveying instruments. 228 T w o decades then elapsed before increased settlement with consequent jurisdictional and titular conflicts in the controverted territory again brought the need for settlement to the fore. 230 N e w York exhibiting indifference to co-operative efforts, the East New Jersey proprietors pressed for a New Jersey act, subject to royal approbation, for ex parte settlement of the boundary. 231 After some political opposition, in February, 1747/8, an act containing a suspending clause was passed in New Jersey for running the boundary line according to the 1719 survey, but subject to royal alteration, with or without the co-operation of New York. 2 3 2 Agent Ferdinand John Paris was skeptical of approbation, principally because of the administrative inclination for commissions 2 3 3 and the failure to provide for any appeal. 234 (hereinafter cited as Rep. Reg. Boun. N.Y.). The journal of the 1769 royal commission to settle the boundary is contained in 3 N . Y . N.J. Boundary MSS. 227 The boundary was defined as "to the northward as far as the northermost branch of the said bay or river of Delaware, which is forty-one degrees and forty minutes of latitude, and crosseth over thence in a strait line to Hudson's river in forty-one degrees of latitude" (Learning and Spicer, Grants, Concessions . . . oj New Jersey, 1 0 ) . 228 For a 1686 attempt see Tanner, The Province of New Jersey, 1664-1738, 641-42; Whitehead, op. cit., 162-63. For the 1 7 1 9 New Jersey enabling act see Acts General Assembly N.¡. ( 1 7 3 2 ) , 94-95. The 1 7 1 7 New York act, a financial measure, merely recited in the preamble the need to settle the boundary and the lack of funds for allocation thereto, and then allotted 750 ounces of plate to defray the expenditure thereof (1 Col. Laws N.Y., 938, 941, 988). For the substance of the commissions see 2 Rep. Reg. Boun. N.Y., 608-10; 4 Doc. Rei. Col. Hist. N.J., 394-97. 228 For the tripartite indenture between the East and the West New Jersey proprietors and

New York as to the western terminal point see ibid., 394-99. For the petition of the New York surveyor to the colony council see ibid., 403-6. For the favorable report thereon see ibid., 406-8. The New Jersey proprietors termed the petitioner's suggestions "groundless, weak, and untrue," asserting that the unfavorable trend of the survey for New York claims constituted the basis of the petition (ibid., 4 0 8 - 3 1 ) . For substantiation of the New Jersey charge see ibid., 433-38, 442-43. A bill for the purchase of accurate instruments was abortively introduced in the New York Assembly (2 Rep. Reg. Boun. N.Y., 644-45). 230 8 Doc. Rei. Col. Hist. N.J., Part I, 266-67; 15 ibid., 185. 231 6 ibid., 138-40, 144-45, 162-63, 1 6 8 - 7 1 , 2 1 6 - 1 9 ; 8 ibid. (Part I), 2 1 3 . 232 Lilly, op. cit., 1 7 4 - 7 5 ; 8 Doc. Rei. Col. Hist. N.J., Part I, 2 1 6 - 1 7 . For a copy of the act see the New Jersey brief for royal approbation of the act (Paris MSS, E 3 / 1 - 4 ) . New Jersey delayed transmission of the act to England in the vain hope that New York would cooperate in running the line (7 Doc. Rei. Col. Hist. N.J., 142-44). 233 Paris noted that nothing but a private

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T h e N e w Y o r k A s s e m b l y immediately ordered agent Robert Charles to oppose royal approbation of the a c t , 2 3 5 although G o v e r n o r Clinton wrote that neither c r o w n nor provincial interests were involved in the boundary dispute, but only those of individual patentees. 2 3 · Paris petitioned for approval of the act at the Board of T r a d e in February, 1 7 4 8 / 9 , but the F a b i a n tactics of Charles combined with administrative preoccupation to delay any definitive actions thereon until ΐ 7 5 3 · 2 3 Τ F o l l o w i n g elaborate hearings w i t h prominent counsel participating, 2 3 8 in J u l y , 1 7 5 3 , the Board of T r a d e represented that agreement between Lord Baltimore and the Penns had prevented a commission in the Maryland-Pennsylvania boundary dispute (Paris to James Alexander, Jan. 9, 1748/9 [Paris MSS, Η ι ] ) . He compared the immediate situation to that between the crown and Lord Fairfax, grantee of Northern Neck lands in Virginia, where a commission was sent to setde the extent of the grant with liberty to appeal from exceptions to the commissioners' returns (Paris to Alexander, Jan. 17, 1748/9 [ibid., H 2]). For this commission see 3 A PC, Col., # 2 8 1 ; Bond, The Quit-Rent System in the American Colonies, 68-71; Groome, Fauquier during the Proprietorship (1927), 58-69. The Kennebec Company endeavored to use this commission precedent in its dispute with the Massachusetts government, but Attorney General Murray stated that "as the questions do not arise between distinct provinces they cannot be determined nor the boundaries settled in this case, by King in Council originally. As the question is not merely with and against the King, but between the Kennebec Company and Massachusetts Bay; it cannot be determined upon the submission of the Kennebec Company by the King in Council originally as was the case of Lord Fairfax, but the matters must be first try ed in the courts of the province and before the ordinary jurisdiction there and afterwards for final determination they may by appeal come before the King in Council" (Add. MS, 15,488/111). 234 Paris questioned by what means an appeal could lie from the newly erected court, if either side felt itself aggrieved by the sentence given. Any two parties in the colonies might go through the several courts there and appeal finally to the King in Council for settling the rights to a few acres. Was it fit that where many acres were settled between two provinces there should be no appeal? The King might be deprived of lands and quit-rents; subjects might be transferred from

New

one jurisdiction to another. Were neither King nor subjects to have any appeal whatsoever in such case? (Paris to Alexander, Feb. 27, 1748/9 [Peris MSS. H 3])· 235 2 Journals General Assembly N.Y., 251 ; 7 Doc. Rei. Col. Hist. N.J., 120-21. For the Assembly's petition against the act see John Chambers MS Commonplace Boo\, 335-60 (Columbia Univ. Law Lib.). The Assembly resolved in 1750 that the expense of opposing the act should be assumed by the province (2 Journals General Assembly N.Y., 282). 23« 6 Doc. Rei. Col. Hist. N.Y., 454-55· For New Jersey support of Clinton's contention see 7 Doc. Rd. Col Hist. N.J., 153-54: f ° r Lewis Morris' support see ibid., 163-65. 231 7 Doc. Rei. Col. Hist. N.J., 126, 168-69, 226-30, 235-36, 240, 297-300; 8 ibid. (Part I) 218-19; ÌCTP. >741/2~49· 433. 44°: ¡bd., '749/SO-53. 370. 393-94· « 8 ÌCTP, 1749/50-53. 428, 430, 433-36· Two procedural objections to the act were met with multiple answers by New Jersey. The first objection was that by the act New Jersey could run the line ex parte and so be judges in their own cause; secondly, the commissioners and surveyors, being East New Jersey proprietors, were interested parties. T o this New Jersey answered: (1) The present act followed the language of the 1719 New York act for settlement of the Connecticut boundary (1 Col. Laws N.Y., 1039), which act had received the royal assent (3 APC, Col., p. 849) ; (2) interest was no objection, since every person in both provinces had an interest, however small, as the settlement might increase or decrease taxes; (3) the commissioners and surveyors appointed by New York in the case of the Connecticut boundary were interested as receiving a share in the lands gained from Connecticut, yet an amicable settlement was reached; (4) even if the commissioners were all East New Jersey proprietors, they lacked judicial power in the case; the surveyor general or deputies were the

456

APPEALS

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J e r s e y i n its separate c a p a c i t y c o u l d n o t d e c i d e d i f f e r e n c e s a r i s i n g f r o m c o n struction of a m b i g u o u s r o y a l g r a n t s . O n l y t w o m e t h o d s of d e c i d i n g s u c h c o n troversies w e r e a v a i l a b l e — b y c o n c u r r e n c e of all parties in interest or b y ¿ h e r e g u l a r f o r m s of judicial p r o c e e d i n g s . I n the latter case the m e t h o d m u s t be d e r i v e d f r o m the i m m e d i a t e a u t h o r i t y of the c r o w n , signified b y c o m m i s s i o n u n d e r the G r e a t S e a l . T h e c o m m i s s i o n of s u b o r d i n a t e officers a n d of d e r i v a t i v e p o w e r s w a s neither c o m p e t e n t n o r a d e q u a t e . A s to the f o r m e r case the parties i n interest w e r e the t w o p r o v i n c e s a n d the c r o w n ; royal interests consisted of s o v e r e i g n t y , s e i g n i o r y r e s p e c t i n g escheats a n d quit-rents, a n d p r o p e r t y in the l a n d itself. A l t h o u g h s o v e r e i g n t y m i g h t not be affected by a settlement of the b o u n d a r y , seignorial r i g h t s w o u l d be, t e n u r e in N e w Jersey b e i n g p r o p r i e t a r y a n d in N e w Y o r k r o y a l . S i n c e the c r o w n d i d not participate in the p r o c e e d i n g s u n d e r the 1 7 1 9 joint legislation, such p r o c e e d i n g s w e r e a nullity

with

respect t o c r o w n interests. T h e r e w a s n o r o y a l a c q u i e s c e n c e in t h e settlement b y a p p r o b a t i o n of acts r e l a t i n g thereto; f u r t h e r m o r e n o d e f i n i t i v e settlement h a d resulted u n d e r the joint a c t i o n . 2 3 9 U p o n the w h o l e the B o a r d of T r a d e important figures; (5) all the commissioners were not such proprietors, i.e., Morris, C. J.; (6) James Alexander, an East New Jersey proprietor, was also a New York proprietor; (7) the amount of interest of the commissioners and surveyor general was no argument against assent to the act; its force was to obtain a royal direction for examination of the matter and replacement of personnel if found prejudiced. (Paris MSS, E 3/Objcction # 7 ) . Paris had earlier objected that the New York-Connecticut settlement was no precedent, for there the act was passed by the royal province; in the instant case it was passed by a province whose lands were in vested proprietors (Paris to Alexander, Feb. 27, 1748/9 [ibid., H 3 ] ) . Cadwallader Colden had also asserted that the precedent was insufficient because approbation was not contested and because the act was made in the behalf of a royal government against a chartered one (Alexander to R. H. Morris, Oct. 16, 1750 [ibid., H 3 4 ] ) . Several answers were forthcoming to the proposition that a commission should be used to settle the boundary, not an ex parte act. It was advanced that: ( 1 ) issuance of such a commission in effect voided the 1 7 1 9 triplicate indenture without giving the West New Jersey proprietors chance to be heard; it was even questioned whether the King could directly or indirectly declare void that indenture which was supported by provincial acts;

(2) where commissions had been previously issued, intricacies which wanted factual examination existed, but here none existed; (3) the New York-Connecticut line was settled by an ex parte act, although a more intricate question was presented; (4) New York would never take out a commission, but would procrastinate; (5) nothing existed for commission inquiry; the instrument errors of 1 7 1 9 were not fit subjects for commission inquiry (Paris MSS, E 3/Objecrion # 1 0 ) . For the list of evidence to be read in favor of the act see Paris MSS, E 5. Alexander Forrester for New York argued that the boundary dispute was analogous to that between two feudal vassals which the King alone could determine, citing Craig, /us Feudale, Book 2, Ch. 8, Sec. i ; Vaughan 404, 407. Co-counsel Charles Pratt argued inter alia that the King could not be bound by this assembly act (Paris MSS, E 3 / 1 - 2 [dorse]). Robert Henley for New Jersey was alleged to have mismanaged the argument by letting opposing counsel enter into the merits of the 1 7 1 9 transactions without interposing or making any reply (R. H. Morris to Paris, April 27, 1754 [ibid.. I 7 ] ) . 239 8 Doc. Rei. Col. Hist. N.J., Part I, 144-30. It was asserted in New Jersey quarters that the representation that the crown was interested was made upon the bare suggestion of New York counsel (R. H. Morris to Paris, April 18, 1754 [Paris MSS, I 5 ] ) . Cf. 2 Rep.

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represented that it could not advise royal approbation of the New Jersey en· actment. The East New Jersey proprietors then petitioned to be heard before the Committee in support of the act, but without success.240 New York, finally convinced of the necessity of settlement, in December, 1754, passed an act for submitting the controversy to the final determination of the King. 241 But the Board of Trade represented that the proposed method of determination was contrary to the constant practice in cases of like nature. Questions of disputed boundaries whereby private property might be affected were never determined by the crown in the first instance, but always by a royal commission with liberty of appeal to the King to those aggrieved by the commission judgment. Whether this was the result of usage or of inherent or statutory limitation upon the prerogative was not apparent. The act was also improper in that the colony was guilty of prejudgment in limiting the claims of certain patentees; further, the act was ineffectual without consent of the interested New Jersey proprietors. For these reasons disallowance was urged. The Board of Trade additionally represented that for settling the dispute a royal commission, as issued in the Massachusetts-New Hampshire controversy, with liberty of appeal to the King in Council was necessary. Since the East New Jersey proprietors were willing to defray one-half the expense Reg. Boun. N.Y., 652, on the divergent footings for commission issuance. New York agent Charles immediately proposed a royal commission to settle the boundary, but New Jersey agent Paris without full instructions could not agree thereto (/CTP, t749/5°~53. 443. 447)· For reasons advanced by Charles for New York application for a royal commission, see 2 Rep. Reg. Boun. N.Y., 659-61. Earlier in 1749 New Jersey interests had proposed, in case of disallowance, issuance of a commission to some of the judges of England (with an appeal to the King therefrom) rather than one to colonial commissioners, since only a point of law was controverted (7 Doc. Rei. Col. Hirt. N.[„ 263-64; Parti MSS, H 24). But agent Paris replied that such a solution was unprecedented and as little to be expected as approbation of the act itself (7 Doc. Rei. Col. Hist. N.J., 299; Paris MSS, H 27). Another possibility mentioned by Paris for settlement of the dispute was the appointment of one governor for both provinces with royal instructions to run the line pursuant to the laws in being in both provinces. In the instructions (which by the gubernatorial commission were declared of as much force as if included therein) all powers given to

boundary commissioners might be inserted, with liberty of appeal to the King in Council. This would be economical and expeditious (ibid., H 34). But cf. the New Jersey objections (2 R. H. Morris MSS, 11 [NJHS]) and denial of suggestions of the scheme (Paris MSS, X 91). 240 8 Doc. Rei Col. Hist. N.J., Part I, 160181. For the brief to be used before the Committee see Paris MSS, E 4. Agent Paris wrote that to hope for a continuance of the act or a direct reversal of the report would be very vain, that it must be endeavored to have the report referred back to the Board of Trade for reconsideration (8 Doc. Rei. Col. Hist. N.J., Part I, 183). Cf. ibid., 152-55, 157-59. The statement by Fisher (op. cit., 220) that the act was disallowed is erroneous. The act, having a suspending clause, merely failed to receive the royal approbation necessary to become effective; see 4 APC, Col., #215. 211 3 Col. Laws N.Y., 1036-38; 6 Doc. Rei. Col. Hist. N.Y., 839, 927; 2 Journals General Assembly N.Y., 393-95. In April, 1754, the assembly had concurred with the governor that there was need for a temporary line (ibid., 379-80). For the proceedings in the council see 2 Rep. Reg. Boun. N.Y., 672-77.

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of such a commission, an additional instruction to the N e w York governor to recommend similar provision by the N e w York Assembly was recommended. 2 4 2 T h e act was accordingly disallowed on June 24, 1755, 243 and the recommended instruction was issued in August. 2 4 4 W h e n Governor Hardy encountered assembly reluctance to conform to this additional instruction, he questioned whether the matter might not be more equitably determined by a royal commission in England. 2 4 5 But the Board of Trade replied that "the establishing such a jurisdiction is altogether without precedent, liable to numberless objections, and might be attended with very bad consequences." 2 4 6 In November, 1756, the East N e w Jersey proprietors returned to the Cockpit with a petition that the line allegedly agreed upon by the 1719 commissioners should constitute the boundary until the true line could be settled under the proposed royal commission. 247 Upon this petition, motivated by desire to compel financing of a commission by the N e w York Assembly, 248 the Board of Trade advised establishment of such temporary line after a six-month waiting period for N e w York to provide for the expenses of a final settlement, but no conciliar action was taken thereon. 249 Finally, in December, 1762, N e w York passed an act submitting the con8 Doc. Rei. Col. Hist. N.J., Part II, 108-10; 6 Doc. Rei. Col. Hirt. N.Y., 952-53. For the hearings before the Board of T r a d e see JCTP, 1754-58, 120, 128, 150. Paris, in opposing confirmation, had a r g u e d : ( 1 ) the K i n g h a d n o jurisdiction to determine property in America in the first instance; (2) there w a s n o possibility of bringing to E n g l a n d the m a n y necessary witnesses; (3) the expense of such a proceeding would be excessive; (4) c o m missioners on the spot would be better inf o r m e d than a court in E n g l a n d ; (5) original evidence could be proved to be forgeries, but transcripts used at a hearing in E n g l a n d could not (Paris MSS, E 13/12). 2 4 3 4 APC, Col., # 2 7 9 . 2 4 4 2 Labaree, Royal Instructions, #975. 2 4 5 8 Doc. Rei. Col. Hist. N.J., Part II, 2078; 7 Doc. Rei. Col. Hist. N.Y., 38. 24« Ibid., 80; 8 Doc. Rei. Col. Hist. N.J., Part II, 213. 2 4 7 4 APC, Col., # 2 1 5 ; 8 Doc. Rei. Col. Hist. N.J., Part II, 225-28. T h i s course had been suggested earlier in 1754 by the Board of T r a d e (ibid. [Part I ] , 296-97) a n d in 1753 in a memorial of the East N e w Jersey proprietors (ibid., 229). N e w York, however, was n o t disposed to favor any temporary demarcation (ibid. [Part Π ] , 27-28, 3 t ; b u t cf. ibid., 74-75)· 242

248 See Alexander to Paris, Jan. 6, 1756 (Paris MSS, Κ 26); Paris to Alexander, May 8, 1756 (ibid., Κ 3o). 2 4 8 8 Doc. Rei. Col. Hist. N.J., Part II, 24546; 4 APC, Col., # 2 1 5 ; JCTP, 1754-58, 279-80, 283, 286-87, 357· cf. Paris MSS, E 13. T h e N e w York Council earlier, in December, 1754, had represented t h a t neither province had power without particular royal directions to agree to any temporary line inconsistent with their ancient and continued jurisdictions (2 Rep. Reg. Bonn. N.Y., 7 1 8 19). Agent Charles for N e w York h a d first adopted dilatory tactics (2 N.Y.-N.J. Boundary MSS, 2, 3, 6), then had objected t h a t the temporary line recommended by the Board of T r a d e was the same line as settled by N e w Jersey in the 1 7 4 7 / 8 act which h a d been recommended for disallowance (ibid., 12). It would appear that conciliar failure to act was d u e to the attitude of t h e Lord President of the Council, Granville (ibid., 19-20), and to the objection of Lieutenant-Governor Pownall, allegedly influenced by the N e w York Delancey group (Paris MSS, Κ 30). I n t h e m e a n t i m e the N e w York Assembly still refused to conform to the royal instructions, suggesting d e f r a y m e n t f r o m the quit-rents (2 Journals General Assembly N.Y., 524-25). Cf. 7 Doc. Rei. Col. Hist. N.Y., 204.

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troversy to whatever method of determination the King proposed, by royal commission or otherwise—such determination to be final. Managers were also appointed and authorized to draw upon the public funds in presenting the N e w York claims. T h e act was to become void unless a similar enactment was passed in New Jersey within a year. 250 In June, 1763, similar legislation was passed in New Jersey, along with an act subjecting the estates of the Eastern Division proprietors to indemnification of the province for any expenses incurred in running the line. 251 However, the Board of Trade refused to present the submissive N e w Jersey act for confirmation, since it styled William Alexander, one of the nominated managers, Earl of Stirling, contrary to a resolution of the House of Lords. 2 5 2 Therefore, it became necessary for N e w Jersey to pass another act in February, 1764, omitting the objectionable agent. 258 These acts received royal approbation in July, 1764, and the Board of Trade was ordered to nominate commissioners for settling the boundary. 254 In December the Committee ordered the crown law officers to draft a commission for settling the disputed boundary; the commissioners, largely royal officials and not councilors, were drawn from various colonies. 255 Objections being raised against the Nova Scotia members of the commission, it was not until June, 1767, that the commission, with altered personnel, received conciliar sanction. 256 The variation of personnel from the earlier boundary commissions was symptomatic of the increasing attempts at centralized colonial administration. The commission, closely modeled after the Massachusetts-New Hampshire precedent, provided for a further meeting of the commissioners between two and three months after rendition of their judgment. At this meeting either or both colonies might enter their appeals to the preclusion of later entry; in the absence of any appeal the commission determination, confirmed in Council, was to be final and conclusive. 257 The initial meeting under the commission was held at New York on July 18,1769, when the commission was read. 258 On July 20 clerks were appointed; the respective managers produced their authorizations; persons designated to receive process were named; and surveyors were appointed. Then N e w 250 4 Col. Lau/t N.Y., 640-42. For the assembly proceedings see 2 Journals Generai Assembly N.Y., 7 1 4 - 1 7 . 251 Act! General Assembly N.J. (ed. by Allinson, 1776), 254. 2 5 2 JCTP, 1759-63, 409. Cf. L i l l y , op. cil., 194. 253 Acts General Assembly N.J. (ed. by Allinson, 1776), 263-65. A further ancillary indemnification act was also pasted (ibid., 265-66). See also JCTP, 1764-67, 92.

254 4 APC, Col., # 5 7 1 ; JCTP, 1764-67, 103. For the members proposed by New Jersey see 9 Doc. Rei. Col. Hist. N.J., 447. 255 4 APC. Col., #571. 254 5 APC, Col., # 1 7 ; JCTP, 1764-67, 392. For the objecting New Jersey petition see 9 Doc. Rei. Col. Hist. N.J., 589-91. 267 9 Doc. Rei. Col. Hist. N.J., 630-36; 2 Rep. Reg. Boun. N.Y., 752-54. 258 3 N.Y.-N.J. Boundary MSS, 1.

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York proceeded to present the state of its claims and pretensions, followed by a similar presentation by New Jersey. 259 On July 28, after a preliminary agreement as to the manner of taking evidence, the parties commenced to present their evidence. 260 Meetings were held virtually daily during August and September. 261 On September 30 both colonies delivered their written arguments, and the report of the surveyors was read. 262 On October 7 the commissioners, with two dissenting, gave judgment that the northernmost branch of the Delaware mentioned in the patent was the junction of the Mahackamack with the Delaware, which was in the latitude of 41 degrees, 21 minutes, 37 seconds, and that a line was to be run from thence to a point of 41 degrees latitude on the west side of the Hudson River. 2 6 3 This judgment satisfied neither colony. 264 The New York agents immediately sought an appeal, but met with refusal, since no appeal could be received until termination of the two-month waiting period. 265 The reception meeting was set for December 8 in Hartford, Connecticut, but only two commissioners appeared, five constituting a quorum. 266 T w o additional meetings at Hartford having failed to secure a quorum, the appeals were ordered lodged with the clerk, and an adjournment was taken until July 4, 177ο. 267 Upon receipt of commission communications and upon presentation of a New York petition, the King in Council ordered with New Jersey consent in April, 1770, that the majority of the commissioners present at the July meeting should be 258

Ibid., 3 - 4 1 ; 2 Rep. Reg. Boun. N.Y., 75669. Cf. A State of the Demands and Pretensions of New York (1769). (NYPL). On July 26, New York presented an emendation of its claim (3 N.Y.-N.J. Boundary MSS, 43). 260 By consent of the parties, examination of witnesses was to be in open court in the presence of the parties upon interrogatories. It was also agreed that copies of the records from the offices of the respective secretaries, attested by the custodians, be received instead of copies under the respective great seals (ibid., 45). 281 Ibid., 46-764. 292 Ibid., 765. See also An Argument Delivered on the Part of New-York., at the Hearing before His Majesty's Commissioners . . . To Settle and Determine the Boundary Line, Between the Colonies of New-York, and Newfersey (1769), (NYPL); A Brief of the Claim, on the part of the Province of New Jersey, and of the proof offered in support of it, before the Commissioners . . . for settling the Boundary Line, between the said Province of New-Jersey and the Province of New-York (1769), (NYPL).

283 3 N.Y.-N.J. Boundary MSS, 775; 18 Doc. Rei. Col. Hist. N.J., 1 5 - 1 7 ; 2 Rep. Reg. Boun. N.Y., 769-72. 204 For the New Jersey reaction thereto see 18 Doc. Rei. Col. Hist. N.J., 15. For that of New York see 26 ibid., 519; A Brief State of the Controversy between the Colonies of NewYork and New-Jersey, Respecting Their Boundary-Line (1770), 8 (NYPL). 285 3 N.Y.-N.J. Boundary MSS, 775; 26 Doc. Rei. Col. Hist. N.J., 5 1 9 ; 2 Colden Letter Books, 190-91. In New Jersey measures were taken to afford equality with New York by provincial financing of the intended appeal (18 Doc. Rei. Col. Hist. N.J., 2 1 ; Acts General Assembly N.J. [ed. by Allinson, 1776], 335)· 266 3 N.Y.-N.J. Boundary MSS, 783. 207 Ibid., 784; 26 Doc. Rei. Col. Hist. N.J.. 586-87. The absence of the New York agents was allegedly due to the failure of the Council to provide for the expenses of the journey (4 Wm. Smith MSS, sub Mar. 10, 1770).

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granted the same powers as possessed by the quondam quorum of five.*·8 A single commissioner appeared at the New York City meeting on the appointed date, and with no prospect of additional attendance, adjourned the meeting until the following May. 2 8 9 However, in the meantime the provinces had decided to accept the judgment of the commission, so that further meetings were unnecessary. 270 In N e w Jersey legislative approval of the judgment was obtained in an October, 1770, act containing a proviso for reciprocal action by N e w York. 2 7 1 Since the act passed in the latter colony in February, 1771, 2 7 2 was not in all respects equivalent to the New Jersey act, it was necessary for New Jersey to pass an additional act in September, 1772, to match the New York act. 273 In May, 1773, the Board of Trade, in advising confirmation of the two acts, represented that both colonies had entered appeals from the commission determination. But no petitions of appeal having been presented, it appeared that the acts disavowed any intention of appealing. The two acts were accordingly confirmed on September r, 1773. 274 Several features of this controversy are significant. In the first place, there was an evident desire to substitute some other method of settlement for a royal commission sitting in the colonies. Correlative thereto was the insistence of the Board of Trade upon the utilization of such procedure, whether motivated by theories as to the royal prerogative or by pecuniary gain. 278 Secondly, the necessity of financial co-operation by the legislative branch for effective operation of commission and appeal procedure was demonstrated. 276 From this and 5 APC, Col., # 1 7 ; 2 Rep. Reg. Boun. N.Y.. 774-75· 2β»3 Ν.Y.-N.J. Boundary MSS, 785; 27 Doc. Rei. Col. Hist. Ν.I., 199. 27 ° IO ibid., 194; 2 Rep. Reg. Boun. N.Y., 775-76. William Smith, Jr., wrote that the New Jersey proprietors, having reason to fear the unfavorable issue of an appeal with attendant heavy costs, proposed to the New York managers an agreement to supersede the necessity of proceeding further with the appeal. Hopes of success were conceived from Oliver Delancey being a proprietor and the Delancey family's control of council and assembly. Difficulty in settling the accounts of the colony managers was designed to prevent further meeting of the commissioners and prosecution of an appeal, thereby causing the New York managers to fall in with the New Jersey aims. Thus, the province was to be duped for the benefit of New Jersey under terror of bringing the future costs upon the New York patentees (4 Wm. Smith MSS, sub March 10, 1770). In a March 1 2 statement of the New York managers a proposed com-

promise was termed prejudicial, yet privately was preferable to the expense of an appeal. But as trustees for the crown and for many individuals the managers felt it their duty not to facilitate a compromise, but to prosecute an appeal; see the statement bound in with A State of the Demands and Pretensions of New York ( 1 7 6 9 ) , ( N Y P L ) . But by March 16 it was reported that a compromise agreement had been reached (4 Wm. Smith MSS, sub March 16, 1 7 7 0 ) . 271 Acts General Assembly N.J. (ed. by Allinson, 1776), 342. 272 5 Col. Laws N.Y., 185. 273 Acts General Assembly N.J. (ed. by Allinson. 1776), 368-73. 271 5 APC, Col., # 1 7 . 275 See Paris to J. Alexander, Jan. 9, 1748/9 (Paris MSS, Hi). 278 In regard to the alleged inability of the crown to force New York to share in the commission expenses for settlement of the New Jersey boundary see Paris MSS, E 1 3 / 3 ; Paris to J. Alexander, June 24, 1 7 5 5 (ibid., Κ 22); Paris to J. Alexander, June 26, 1 7 5 5

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the three other causes it is evident that commission and appeal procedure might prove cumbersome, dilatory, 2 7 7 and expensive. 2 7 8 Interference with successful operation by colonial recalcitrance w a s more difficult to overcome than in ordinary appeals from the established courts. But the imperial authorities adhered to the commission and appeal as a procedural device, and such procedure did meet with some, if not unqualified, success in settling intercolonial boundary controversies. T h e solution which the Privy Council hit upon for the settlement of the several causes here discussed possessed a significance far beyond the immediate circumstances of its use. T h e r e can be little doubt but that the method evolved for settlement of disputes between states under the Articles of C o n federation derived from the conciliar employment of the commission for intercolonial controversies. T h e conduct of proceedings in the ConnecticutPennsylvania case ( 1 7 8 2 ) illustrates h o w the details of the commission procedure persisted. More far-reaching even than these effects was the influence of colonial experience upon the revival of international arbitration at the instance of the United States after 1783. F o r this John Jay, w h o had been clerk

{ibid., Κ 2 3 ) . But the party most eager to settle the boundary might advance the necessary expenses, assuming the risk of later contribution (ibid., Κ 30, 3 8 ) . 277 Richard Jackson wrote that the difficulty of securing a Committee quorum at the number of meetings necessary to hear a commission appeal was "a strong objection to this mode of proceeding by commission" (3 Trumbull MSS, 5 b, 17 c). Later he wrote that "it is so difficult to get a sufficient number of the Lords of the Council to attend so long and so intricate a cause," that he despaired of an early hearing (ibid., 30 b). In December, 1 7 7 3 , John Penn, writing to Governor Trumbull of Connecticut in re the disputed Susquehanna lands, stated: "In the case of Commissioners to settle boundaries; they must probably be chosen in different colonies, and their meeting and attendance would be both difficult to obtain, and in itself very expensive; and perhaps, after much time spent in bringing the matter to a period, the determination might not be satisfactory to all parties, and only prove the foundation of an appeal to His Majesty in Council" (ibid., 162 a). Ferdinand John Paris informed James Alexander that in the settlement of the New HampshireMassachusetts line, 54 or 55 hearings by

counsel took place before the Privy Council, Board of Trade, and crown law officeri (Paris

MSS. Η 8).

278 But at least one prominent Connecticut figure considered the cost of the Mohegan Indians litigation low. "The Mohegan or Mason Case cost Connecticutt £ 7 0 0 0 , L. M. or less than one penny on the pound in the Grand List" ( ι Literary Diary 0/ Ezra Stiles, 1769-76 [ed. by F. B. Dexter, 1 9 0 1 ] , 439). Expenses can be broken down into several components. ( 1 ) Those incurred in the application leading to the conciliar order for issuance of a commission. (2) Those involved in issuance of the commission. We have seen ¿ 1 3 5 / 4 / 6 mentioned for this item in the New HampshireMassachusetts controversy (supra, n. 173). In the Rhode Island—Massachusetts dispute the commissioners ordered equally shared the ¿ 1 9 1 / 8 / 4 paid out by solicitor Paris for Rhode Island and the ¿ 2 2 / 1 9 / - hy lolicitor Sharpe for Massachusetts (MS Proc. R.l.-Mass. Boundary Comm., 1741, 250). Cf. mention of ¿ 3 0 0 paid out before this commission was delivered to the parties (Paris MSS, H 34). ( 3 ) The expenses of the commissioners sitting in the colonics. (4) The expenses of an appeal to the King in Council from the judgment of the commissioners. See supra, pp. 3 2 1 - 2 3 .

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of the New York-New Jersey boundary commission, who became Secretary for Foreign Affairs, and who later negotiated the celebrated treaty of 1794, was largely responsible. There is probably no more striking instance of the adaptation and remolding of a legal institution, and while the United States may properly pride itself upon its achievement in reviving the use of international arbitration, a share of the credit should not be gainsaid the Privy Council.

Vili THE PRIVY COUNCIL AND THE EXTENSION OF ENGLISH LAW of Council proceedings were such that the records are most fruitful on matters of administration and procedure; they have much less to yield in respect of substantive law. In the sum total of this body's functions judicial activity was only a small fraction, and since the bulk of duties discharged was essentially advisory or administrative, the Council clerks were not concerned with common law standards of recordation, and still less with the contemporary urge for unofficial reporting. The circumstance that in point of numbers the Council was predominantly lay and that even when sitting as a committee hearing an appeal it was not envisaged as acting in the same capacity as the central courts tended to blur the outlines of what in reality it was doing—contributing by a series of ad hoc determinations to the creation of a special jurisprudence governing the dominions outside the realm. Certain incidents of this Council jurisprudence have already been noticed in connection with policy and procedural questions discussed in previous chapters. Most of these incidents relate to matters of private law, and because of the sporadic quality of the appeal jurisdiction inherent in the limitations as to subject matter and appealable minimums, a sort of judicial isolation characterized the Council's work. Its decisions had as precedents little or no relation to the body of the law in England, because the Council possessed no locus standi in the judicial system of the realm itself and had a relation to the private law of a particular colony of little effect beyond the instant case. In other words, if the Council made some novel application of the rule in Shelley's Case, it added little to the real property law of England, 1 and its Order was unlikely to produce change in colony law, because colonial lawyers habitually clung to English printed precedents.2 It was otherwise in respect to certain matters which may be described as basic problems of public law, which were

T H E CHARACTERISTICS

1 One of the rare instances of a colonial appeal cited at Westminster is a Barbados case involving the construction of a will in which there were three appeals (3 APC, Col., # 2 2 5 ) . The citation is to Morris v. Wood where Chief Justice Raymond and Lord Justice Eyre on March 24, 1 7 3 0 / 1 , held the gift to be an estate tail; see Colson v. Colson (2 Al\. 247 at 249, 2

Strange 1 1 2 5 ) and Doe ex dem. Long v. Laming (2 Burr. 1 1 0 0 at 1 1 0 2 ) . 2 Our conclusion is based upon the scores of lawyers' briefs and trial memoranda of many colonial jurisdictions that have come to our attention. In so far as one may properly speak of colonial precedent, this has to do mainly with practice precedents. Provincial lawyers of

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m o r e o r less c o n t i n u a l l y in issue a n d c o n c e r n i n g w h i c h the C o u n c i l developed a b o d y o f rules that seem to us considerably m o r e palpable than the variegated decisions in the p r i v a t e l a w field. T h e s e matters concern the p r o b l e m s of the e x t e n s i o n a n d interpretation of acts of P a r l i a m e n t a n d of the interpretation of colonial acts ( a l l of w h i c h w i l l be considered in this c h a p t e r ) ; the problems of a v o i d i n g colonial acts a n d of establishing certain constitutional standards f o r the d o m i n i o n s (to be considered at large in our next c h a p t e r ) . THE EXTENSION OF ACTS OF PARLIAMENT A s a matter b o t h of c h r o n o l o g y a n d of convenience, the point of departure f o r a n y s t u d y of statutory extension m u s t be the f o r m u l a of the early charters w h i c h c o n v e y e d legislative p o w e r w i t h the proviso respecting agreement or n o n r e p u g n a n c y w i t h the l a w s a n d statutes of E n g l a n d . 3 T h i s f o r m u l a w a s c u r r e n t l y e m p l o y e d i n patents of incorporation as a m o n i t i o n respecting the m a n n e r in w h i c h the b y - l a w p o w e r s of domestic corporations w e r e to be exercised, s u c h bodies b e i n g in all respects subject to the c o m m o n l a w and the statutes of the r e a l m . O n the f a c e of things there w o u l d seem to be some r o o m necessity were tied to provincial forms, the product in many cases of the peculiar development in each plantation. The number of manuscript "president" or form books that have survived are persuasive on this. In many of these collections the forms are copies or close adaptations of English exemplars. We venture to suppose that if the correctness of any such local form came in issue, English "precedent" would prevail (cf. the argument on writs of adjournment in Jay MSS, Box 3, 160 [ N Y H S ] ) . The evidence we have on the citation of colonial judicial decisions—and it is scanty— reminds one of the examples in English medieval sources, where counsel or court recall something done or said at some previous term. Much of this also has to do with practice. See, for a New York example, the citation of King v. Lydius (a local caute célèbre) in the later King v. Van Tassel (Goebel and Naughton, Law Enforcement in Colonial New Yorl^, 54243); for Connecticut, the instances in The Superior Court Diary of William Samuel Johnson, 1772-1777 (ed. by J. T. Farrell, 1942), 68, ' 3 7 , '65, 255, 270; for Virginia, Reeves v. Waller, 1733 (Jefferson Rep.. 8). Where a peculiar institution like slavery was concerned, previous colonial decisions were cited on points of substantive law, e.g., Jones v. Langhorn, 1736 (Jefferson Rep., 38-39); Brent v. Porter, 1768 (ibid., 72); Blackwell v. Wilkinson, 1768 (ibid.. 78).

Two final exhibits on the matter are, first, Jefferson's comment in the preface to his Reports that in the years 1730-40 the judges of the General Court were chosen without regard to legal knowledge so "their decisions could never be quoted either as adding to or detracting from, the weight of those of the English courts, on the same points. Whereas, on our peculiar laws their judgments, whether formed on correct principles of law or not, were of conclusive authority. As precedents, they established authoritatively the construction of our own enactments and gave them shape and meaning, under which our property has been ever since transmitted." The second exhibit is from Maryland, Bett v. Bett (Harris and M'Henry, 409, 418), where counsel in 1771 argued: "A manuscript case is relied on, to which I give no credit, ist Because the authorities in the books viz. Carth. 514, 2 Stra. 1 2 5 ; are expressly contrary and it would be dangerous to overthrow solemn resolutions by loose notes." 3 The charters are not entirely consistent. For example, in the charters for Massachusetts Bay (1629) and Connecticut (1662) the word "statutes" is omitted; the word "custom" appears in that of Maryland (1632) and Carolina (1663). Of course, taken in its largest sense the expression "laws of England" includes acts of Parliament as well as general usages.

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for a presumption that abroad as well as at home this rule would apply. H o w ever, as we shall see in a moment, a judicial pronouncement in 1608 introduced factors which, so far as the crown was concerned, turned out to be an effective practical bar to the indulgence of any such presumption and left the charter formula a mere standard for colonial behavior. Nevertheless, the presence of such formulae and their reappearance in the governors' commissions were in other quarters made the basis of claims of right and had consequently a great deal to do with the eternal frictions over the status of English law in the plantations. A second preliminary point of consequence that cannot be ignored in any consideration of statutory extension is the assumption, either tacit or express, in English judicial handling of acts of Parliament that these presume an extant common law base and are to be read or construed in terms thereof. Obviously, where the common law does not obtain, enactments made with reference thereto are not applicatory, because standing alone they would be meaningless. This rationale underlay the medieval practice of particular mention when an act of Parliament was to apply to a dominion outside the realm. A final matter which conditioned some of the discussion over the vigor of acts of Parliament in the plantations has to do with technical distinctions which English courts had made respecting types of enactment. T h e most significant for our purposes are the distinctions ( 1 ) between statutes general and statutes particular and (2) between the statutes in affirmance of the common law and those which make novel law. T h e first of these was useful to, crown officials when it was thought expedient to deny the applicability overseas of even very old statutes. T h e second distinction the colonists found serviceable in their claims of applicability, and it also made colorable the resort to some English statutes as precedents on a par with judicial decisions. What has just been said is essential for comprehending the juristic atmosphere in which policies about statutory extension were formulated. Since these had their beginnings in a period of struggle over the limits of prerogative at home, when each side was making free with all available relevant precedents, it was inevitable that a similarly legalistic approach would be made respecting matters that affected the prerogative overseas. Debate continued in this idiom long after settlement of domestic constitutional issues, because the colonists in their turn resorted to the methods and the arguments of their English forebears. A t the commencement of the period of colonization there was precious little in the way of judicial authority that could be regarded as a guide for official action. But by one of those fortuitous events which make the growth of the law so haphazard, yet so full of happy surprises, the various scraps of precedent

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were gathered in Calvin's Case (1608), 4 to the making of which all the judges of England, the Lord Chancellor, and certain future luminaries of the bench contributed. This particular case concerned the status in English law of a Scot born after the accession of James I, and it was a culminating episode in the long-sustained controversy over the union of England and Scotland. In the course of the discussion in Parliament and elsewhere a number of fundamental points were bruited that were presently to be of real importance in the relations of crown and plantations. Once or twice there were allusions to the Indies and Virginia, 5 but the new adventure was not involved except by subsequent implication. Nevertheless, a number of the personalities who participated in the debates had or shortly were to have connections with the Virginia enterprise.0 Calvin's Case was a fabricated cause brought for the purpose of securing a judicial settlement of certain questions of law, and comprised both an action at law and a suit in Chancery. T h e issue raised by the pleadings was whether or not Calvin, a Scot born after the accession of James I, was an alien and so disabled from bringing a real or personal action for lands in England. The case was adjourned to the Exchequer Chamber, there to be argued by all the great mastiffs of the law. T h e leading report composed by Sir Edward Coke ranges over a variety of matter which his ingenious mind thought appropriate to the four operative words : "ligeance," "kingdoms," "laws," and "alienage." Fundamental to the discussion is the basic medieval distinction between realm and the dominions of the K i n g not parcel thereof but under his obedience, a distinction significant as well to what is said about the diversity of laws, as to the extension of acts of Parliament. T h e passage which was destined to play so great a role as a precedent respecting the colonies occurs in the discussion of alienage. Here Coke distinguished between the acquisition of territory by conquest from a Christian king and from infidels whom the law presumed to be perpetual enemies. In the former case, existing law remained until altered, and such alterations were at the will of the English King. Where i

7 Co\e Rep. ι ; 2 Howell, State Trials 559. Hawarde, Les Reports del Cases in Camera Stellata (Baildon ed., 1894), 349, has a report which gives, among other items not in Coke's report, Walmesley's dissent. 5 Bacon refers to the Indies in his speech (2 Howell, State Trials 5 9 0 - 9 1 ) . In answer to objections made in Commons respecting the danger of letting the impecunious Scots swarm over England, he is reported to have said, "If we be pent in England there is room abroad— Ireland, Virginia" (1 J. H. of C„ 3 3 7 ) . 0 When the first Virginia charter passed the seals, Coke was still Attorney General, and

Dodderidge, who argued the post nati question in an early stage, was Solicitor General. Sir Edwin Sandys and the Earl of Salisbury (grantees of the 1609 Virginia charter) participated in the Parliamentary argument. Laurence Hyde, who argued there against the extension of allegiance, was later a shareholder. Hobart, Attorney-General, and Bacon, Solicitor General, who argued in Exchequer Chamber, were among the grantees in the 1609 charter. Chief Baron Tanfield was a grantee of the Newfoundland charter. Heron, Baron of the Exchequer, was a 1 6 1 0 subscriber to the Virginia adventure.

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the conquest was from infidels, their laws were abrogated, and until certain laws were introduced they were to be governed by the crown according to natural equity. It was next pointed out that once the laws of England were introduced, as in conquered Ireland, these could not be altered without Parliament, and furthermore that in the case of a distinct dominion, by express refèrence acts of Parliament might bind. English law has always made its new quilts from old rags, and Calvin's Case was no exception to this rule. In spite of an occasional bit from the Holy Writ, the civil law, and even natural law, the "opinion" was mainly wrought from medieval materials. Ancient doctrine was given new vigor from the circumstances of its fresh assessment and summation and because it was thus projected into the constitutional law of the era of colonization. The King's possessions are discussed in terms of English property law, itself the product of feudalism, a fact which explains the archaic doctrine of the judges that what does not come by descent is by conquest. The acceptance of this postulate of necessity required an admission of the extensive prerogative of the crown with respect to dominions so acquired. Of no less significance for the future is the consistent recognition of the fact that dominions not parcel of the realm may be ordered by distinct laws. Although ordinary remedial writs do not run in such places, a "mandatory" royal writ may, and redress is to be according to the law of the dominion. Similarly, in the case of the Channel Islands a royal commission runs, but again judgment must be by local law.7 The bearing of all this upon plantation problems is implicit in the remarks upon the extent of royal prerogative—a contemporary judicial carte blanche respecting the law and government of the new lands with the caveat that the power of alteration passes to Parliament once the law of England is introduced. What the crown had thus far done with respect to the Virginia enterprise to all appearances might have been contrived with Coke's report of Calvin's Case at the royal elbow. The charter of 1606 refers to Virginia as territory "appertaining to us" 8—an obvious assertion of the dominion of the crown principle. The royal instructions 9 issued in the same year make certain specifications respecting landholding, inheritance, crimes, and trial, none of which would be necessary if it had been assumed that the colonists carried their law with them or if English law had applied ipso vigore. An ordinance power is given with the proviso that the King or the Council of Virginia may alter or make void any ordinance, "soe always as the same alterations may stand with, and be in substance consonant unto the lawes of England or the 7 This is explicitly restated in Coke, fourth institute, 286. 8 7 Thorpe, Federal and State Conttitutions, 3783·

* 1 Brown, Genesis of the United States, 65 et seq.

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equity thereof." The intendment of this is that English law is to be a standard, and as far as subsequent imperial policy is concerned, the provisions of charters and commissions respecting the law-making power are to the same effect, and with scrupulous regard for the caveat of Coke and his fellow judges. The crown does not diminish its prerogative by an outright introduction of the law of England. This policy, consequently, has a double aspect so far as the extension of statutes is concerned. The pre-settlement acts of Parliament will have force only as adopted locally and even then, as we shall see, such adoption will be subject to control by prerogative. They cannot come riding in on the back of an explicit adoption of the common law. Future acts of Parliament will extend only if the plantations are named. The force of the Irish precedent on these points was enhanced by the publication in 1655 of Coke's report of the advisory opinion of the two Chief Justices and the Chief Baron on "Parliament in Ireland." 1 0 The report of Calvin's Case remained for many a day the point of departure of subsequent judicial discourse respecting dominions not parcel of the realm. It assumes a focal point in Vaughan, C. J.'s report of Craw v. Ramsey (1670), 11 another case involving alienage where there is further discussion of an act of Parliament binding by explicit reference. This case is worthy of note, because Vaughan for the first time injects the conception of a dominion acquired by plantation as well as by conquest and because of his incautious statement that a writ of error lies at common law to reverse the judgments in any "inferior dominion." Subsequently, in his note Process into Wales,12 this is repeated in a form to suggest an elaboration of Coke's remarks on the currency of mandatory writs. With singular inconsistency, however, Vaughan states flatly that the courts of England had earlier had nothing to do with the administration of justice in Wales "than now they have in the Western Islands, Barbados, St. Christophers, Nevis, New England . . . all of which may be bound by law made respectively for them by an English Parliament; but most of them at present by law appointed and made by the King's letters patents, and the King's writs original or judicial from the Courts of Westminster go not there." Vaughan's suggestion that dominion could be acquired by plantation by 10 1 2 Co\e Rep. 1 1 0 . The substance of this had already been set forth in Fourth Institute, 3 5 0 5 1 . To be noticed further is the possible precedent value of the statement respecting practice under Poynings' Law of submitting Irish acts to the crown. 11 Vaughan 274. Cf. the argument in A True Relation of the ]ust and unjust Proceedings of the Somer-lslands-Company ( 1 6 7 5 ) , 34, on the extension of the Statute of Uses to Bermuda

that, "The statute of Uses cannot be a rule to judge uses by there. 1. The statute was made long before the discovery of the Islands, much more before the plantation, or peopling; and the statute in its creation could not be intended beyond England: much less by this Terra incognita. Other statutes reach not thither. The Court having declared that the statute De Donis for Entails doth not." 12 Vaughan 395.

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no means led to the abandonment of the earlier theory of conquest from infidels (the situation which gave the greatest latitude to the prerogative). This fiction was advanced with fervor by John Holt and other counsel in the great case of the East India Co. v. Sandys (1683-85). 13 Jeffreys, C. J. gave the doctrine his benediction, and it is interesting to notice that years later Holt, when he had become Chief Justice, again had recourse to the fiction in Smith v. Brown (1702?) 1 4 when he took occasion to refer to Virginia as a conquered country. If circumstances conspired for an overlong delay in producing an explicit judicial pronouncement respecting the status of the plantations and the law there applicable, it is, nevertheless, plain from matter detailed in preceding chapters that executive action had exploited fully the doctrine of the King's dominions. And Parliament itself in the Navigation Act (1660) described the colonies as "Lands, Islands Plantations or Territories to his Maiesty belonging or in his possession." Shortly after the Revolution of 1688 an action on a bond was begun in King's Bench by one Blankard, Provost Marshal in Jamaica. By certain articles he had granted a deputation of this office to one Galdy for a yearly rent, and the latter had given the bond for the performance of the agreement. The defendant pleaded the Statute 6 Edward VI, c. 16, against the buying and selling of office by virtue of which both articles and bond were void. In plaintiff's replication it was averred that the island had been formerly held and inhabited by Spaniards, Indians, and other foreign enemies of the Kingdom of England, but it had been conquered in 1655. Since this time the inhabitants had been ruled and governed by their own proper laws and statutes, not by act of Parliament of England. T o this defendant rejoined that before the conquest the islands were governed by their own laws, but that since then they had been parcel of the realm of England and were governed by its laws and statutes. To this plaintiff demurred. 15 Sir Bartholomew Shower argued for plaintiff that acts of Parliament did not bind in Jamaica because they had no representatives in Parliament. He cited Elizabeth's Statute of Laborers and the Statute of Usury as examples of nonapplicability—the former obviously because of slavery and the second because of prevailing interest rates in Jamaica. Furthermore, the manner in which the Navigation Acts referred to "an English Plantation in America" indicated that the law of England did not extend there. Statute 6 Edward VI, c. 16, did not mention Jamaica and therefore had no force there. In the Earl 13

10 Howell, State Triait, 3 7 1 . 2 Sal\eld 666. Decided after June 24, 1702, when Powell, J. took seat in Queen's Bench. 14

15

Blankard v. Galdy. The Latín pleadings are in 4 Modern 21 > This report was first published in 1703.

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of Derby's Case (2 And. 116), it had been held that the Isle of Man lived by its own laws, so neither the Statute of Uses or of Wills bound the inhabitants. Sir Francis Pemberton (who had been a Stuart Chief Justice of both King's Bench and Common Pleas) appeared for defendant. He took the line that as conquest destroyed both government and property rights, old laws did not remain and the laws of the conqueror took their place. It was unreasonable that Englishmen should lose their law by a conquest, for their law was their birthright and was carried wherever they went. Otherwise, by conquest of an infidel country English laws would be "subject to those of Alcoran." Pemberton adverted to Calvin's Case and some of the precedents there cited, but he interpreted Coke's conquest doctrine to mean that by virtue of English possession English law remained until the King made some alteration. The point of representation was brushed aside; the Statutes of Laborers and of Usury he said were not even observed in England, and so this objection was vain. Jamaica had jury trial; contracts were made by English methods: "Now this is part of the Common Law of England, and if such Laws are used there, what reason can be given why statutes made here should not likewise be of force there?" The case is variously and clumsily reported,16 but Holt, C. J. is represented to have said that in case of an uninhabited country newly found out by English subjects all the laws in force in England are in force there. Jamaica was conquered and not pleaded to be parcel of the Kingdom of England, but part of the possessions of the crown. The laws of England did not take place there until declared so by the conqueror. Jamaica was not "bound by our laws unless particularly mentioned." Since in Jamaica they had power to make new laws, English general laws might be altered by theirs in particulars. Judgment was given for the plaintiff. This case was decided in Trinity Term, 1693. A few months later, in January, 1693/4, the case of Dutton v. Howell11 was argued in the House of Lords. This was a final episode in the controversies between Sir John Witham and Governor Richard Dutton of Barbados.18 Witham had recovered in an action for false imprisonment brought against Dutton in King's Bench. The incarceration had taken place in Barbados, pursuant to a warrant authorized by the governor and some of his council. The case came on error to the House of Lords after Witham's executors sought by scire facias to revive the judgment. Serjeant Levinz and Sir Thomas Powys argued for Dutton that the cause was not cognizable at Westminster, for the governor had acted as judge ("he >*Holt K.B. 3 4 1 ; 2 Sal^eld 222; Comberbach 228.

4 1 1 ; 4 Modern

1 7 Shower, P.C. 24; cf. 1 5 /. H. of L., 3 5 4 ; 1 H. of L. MSS (n.s.) 3 1 1 . 18 Supra, Chapter II, notes 205, 2 3 1 , 360, 3 7 1 .

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had a power to make judges, and therefore he was more than a judge"). He was lawfully commissioned governor and was only censurable by the King. Furthermore, the original charge was before a council of state. Pressing the analogy with the English Privy Council, counsel claimed the statute 16 Charles I, c. io, had not restrained the Privy Council's power to commit state delinquents. Finally, without entering into explanations, it was averred that the laws in Barbados were different from those in England. The case for plaintiff in error concluded with a general policy argument respecting the inadvisability of allowing actions against colonial officials for what was done in governing those countries. Sir Bartholomew Shower and Edward Northey appeared for the executors, and although Shower did not advert to Blan\ari v. GaJJy, it is apparent that he availed himself of what had there been said. He followed a line of strict common law constitutional argument, viz., that arrests could only be by known officers and English law knew no such officer as a governor. In the second place he pursued the common law rules respecting commissions : they must be explicit and must be executed according to their very terms. The letters patent gave the Barbados Council only advisory powers; by the form of the patent no lawful act could be done by less than the full number of councilors. Here, moreover, was a transitory action, and it followed anyone who came within the reach of common law process. The justification of the tort must be according to common law, "for that Barbados is under the same law as England." Counsel admitted the authority of Calvin's Case, but denied that Barbados was a conquest—" Twas a colony or plantation," and so it was referred to in letters patent, proclamations, and acts of Parliament. "But whatsoever may be said by some as to statutes binding them, the Common law must and doth oblige there, for 'tis a Plantation or new settlement of Englishmen by the King's consent in an uninhabited country." When Englishmen go there, the common law must be presumed to be their rule for this is their birthright. Having thus used Holt's dictum in Blankard v. Galdy, Shower proceeded to fortify it by showing that even if one followed the international law rule that tide is gained by the first occupant, the rules of descent will be those of the settler, and grants of the crown will be in socage—a common law tenure. Shower's views did not, however, prevail, for the House of Lords reversed judgment. We have dwelt at length upon these cases because they represent the sum of judicial and forensic wisdom on the subject of common law reception at the opening of the eighteenth century. They were early published and widely circulated and exercised consequendy a more considerable influence than their

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contents in every case deserved. The post-Restoration cases reflect little familiarity even in Holt's time with the realities of colonial government and with the administrative activities of the crown. 19 It might have been otherwise, if generous reference to writs, commissions, etc., as precedents in the manner of Lord Coke had not gone out of fashion. 20 Nevertheless, these cases are of considerable significance as sole judicial precedents, especially when taken in connection with the earlier learning on the status of dominions such as Ireland, the Isle of Man, and Wales, from which additional fortification of the rules could be drawn. Furthermore, since these pronouncements emanated from the highest courts of the realm, they must be viewed as limitations upon and guides to the policy of the Council itself. Before discussing the cases in which the question of the extension of the laws of England to the colonies came before the Privy Council, it is desirable to take some view of opinion in the colonies respecting the problem of extension. No clear acceptance of the doctrine of the adjudged English cases appears in the colonies, even at the turn of the century, although we know that Sir Edward Coke's Institutes and Reports were well disseminated along the seaboard. At the beginning of the eighteenth century, an anonymous colonial pamphleteer wrote querulously about the dilemma of the Virginians: 2 1 It is a great Unhappiness that no one can tell what is Law and what is not, in the Plantations; some hold that the Law of England is chiefly to be respected, and where that is deficient, the Laws of the several Colonies are to take place; others are of the Opinion, that the Law of the Colonies are to take first place, and that the Law of England is of force only where they are silent; others there are, who contend for the Laws of the Colonies in Conjunction with those that are in force in England at the first setdement of the Colony, and lay down that as the measure of our Obedience, alleging that we are not bound to observe any late Acts of Parliament made in England except such only where the Reason is the same here, that it is in England; but this leaving too great a latitude to the Judge, some others hold that no late Acts of Parliament of England do bind the Plantations, but only those wherein the Plantations are particularly named. Thus are we left in the dark in 19 The ignorance extended even to matters of geography, in respect of which knowledge seems to have remained static. Cf. the entry for November 27, 1769, in Wm. Samuel Johnton MS Diaries (Conn. Hist. Soc.): "I heard a respectable counsellor at law ask Mr. Jackson gravely in the Hall whether Philadelphia was in the E. or W. Indies and said he had a notion it was upon the coast of Sumatra. Such is their knowledge of America." 20 In Dutton v. Howell the purport of the governor's commission was directly involved.

There was no attempt properly to analyze it or to use precedents of earlier commissions, such as existed for Ireland and Calais, to say nothing of other dominions. Shower mentioned the instructions, but refused to enter into them because they were not pleaded, 21 An Essay upon the Government of the English Plantations on the Continent of America ( / 7 0 / ) (ed. by L. B. Wright, 1 9 4 ; ) , 23, 39. Robert Beverley is regarded by some to be the writer,

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one of the most considerable Points of our Rights, and the Case being so doubtful, we are too often obliged to depend upon the Crooked Cord of a Judge's Discretion in matters of the greatest moment and value. The writer goes on to propose as a remedy for the dilemma which he describes both as an "inconvenience" and a "grievance," that "some Rule be established to know what laws the Plantations are to be subject to, and particularly how far the late Acts of Parliament do affect them where they are not expressly mentioned." 2 2 The manner of referring to judicial discretion indicates the writer knew Coke's Institutes,23 but it is unlikely that he was familiar with Calvin's Case from which such a rule as he desired could be constructed. The "inconveniences" he describes arose partly from ignorance or unwillingness to pursue the policy laid out in that case. But they also came partly from the necessities created by inadequate sources of reference. A colonial lawyer in pursuit of a known rule of law perforce turned to what was available to him. The quest for certainty was more compelling than any distinctions as to provenance, and consequently in many provincial jurisdictions statutes possessed a validity as precedents almost on a par with judicial decisions. There is evidence of uncertainty in other colonies. Thus, in 1701 it was reported of Massachusetts that acts of Parliament were regarded as obligatory only when the province was particularly named therein. But any acts might be utilized to serve friendly interests, so that predictability was lacking.24 From the Leeward Islands, Governor Codrington wrote in the same year of the necessity of resolving the uncertainty concerning the force of acts of Parliament in those islands, remarking that one chancery cause had continued fifteen years because of this uncertainty.25 No evidence appears of knowledge of the English precedents; instead Codrington mentioned commonly held opinions that only acts relating to "commutative," as opposed to "distributive," justice or only acts declaratory of the common law were in force. 26 In 1705 it was charged that Rhode Island and Connecticut allowed to be pleaded in their courts only such laws of England as served their purposes.27 As to the Carolinas, it was asserted in 1709 to be a general rule of law that no acts of Parlia22

Similar views are expressed in Hartwell, Blair, and Chilton, The Present State of Virginia, and the College ( ; 727) (ed. by H. D. Farish, 1940), 40. Cf. the 1 7 0 1 opinion of George Larkin (CSP, Col., 1701, # 1 1 0 3 ) . For a 1681 opinion of Attorney General Jones on the extension of the Statute of Frauds to Virginia see 2 Va. Col. Dec., Barradall's Rep. (1909), B 1 - B 2 . But in 1724 we find it stated that "all the laws and statutes of England be-

fore Queen Elizabeth are there in force, but none made since; except those that mention the plantations" (H. Jones, Prest η I State of Virginia [ 1 7 2 4 ] , 63). 23 Coke, First Institute (On Littleton), 227b. 24 CSP, Col., 1701, #945. - 5 Ibid., # 9 9 7 . 28 Ibid., # 9 9 7 ii. -'Ibid., 1704-5, #975-76.

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m c n t w e r e i n f o r c e until a d o p t e d b y p r o v i n c i a l act. B u t application of this r u l e m i g h t v a r y w i t h the litigants, the l a w b e i n g " a s t r a n g e sort of P r o t e u s c a p a b l e of p u t t i n g o n all s h a p e s a n d f i g u r e s a s occasion r e q u i r e s . "

28

T h e p o s t u r e o f the several plantations t o w a r d the p r o b l e m of the e x t e n s i o n o f acts of P a r l i a m e n t w a s c o m p l i c a t e d b y b o t h doctrinal a n d political c o n siderations. O n t h e d o c t r i n a l side the e m p h a s i s f o r so l o n g laid u p o n the d i f f e r e n c e b e t w e e n c o m m o n l a w a n d statute, a n d t h e l a w y e r s ' distinctions b e t w e e n statutes in a f f i r m a n c e of the c o m m o n l a w a n d those e f f e c t i n g c h a n g e , a n d their " s t a t u t e s g e n e r a l " a n d "statutes l o c a l " a c t u a l l y f o r e c l o s e d a n y sort of g e n e r a l c l a i m to r e c e p t i o n of acts passed either b e f o r e o r a f t e r settlement. A s to t h e latter, m o r e o v e r , t h e r e w a s the f u r t h e r long-established r u l e that in d o m i n i o n s o f the c r o w n n o act n o t specially m e n t i o n i n g t h e m w o u l d a p p l y . I n t h e case of statutes w h i c h h a d restricted p r e r o g a t i v e , s u c h as the H a b e a s C o r p u s A c t a n d t h e A c t of S e t t l e m e n t , a n d w h i c h w e r e felt to set u p g e n e r a l constitutional p r i n c i p l e s , this restrictive d o c t r i n e w a s bitterly r e s e n t e d . 2 9 T h e c r o w n ' s politics w a s o b v i o u s l y to k e e p the p l a n t a t i o n s i n a state of subjection to the p r e r o g a t i v e 2» Ibid., ¡708-9, #662. 29 In August, 1 6 9 ; , a Massachusetts act of 1692 requiring granting of the writ of habeas corpus as provided in the English Habeas Corpus Act (31 Charles II, c. 2) was disallowed. The ground advanced for disallowance was that such privilege had not as yet been granted in any of the plantations (1 Acts and Res. Prot/. Mass. Bay, 95, 97). In South Carolina in 1692 an act was passed empowering judicial officers to put 3 1 Charles II, c. 2, into force (2 Stat, at Large So. Car., 74). But the act was disallowed by the Proprietors on the ground that it was unnecessary, since all the laws of England applied to the colony (McCrady, History of South Carolina under Proprietary Government, 1670-17/9, 247-48). The attitude of the Privy Council was partially nullified by reception of habeas corpus as a common law writ. In commenting upon a Bermuda act for liberty of the subject from illegal imprisonment the Attorney General in 1703 remarked that the act gave the entire benefit of 31 Charles II, c. 2, to die colony. Since the colony had all the benefits of the writ which the common law gave, it was submitted whether such statutory provision would not lessen dependence on the crown. Even if extension of the act to Bermuda was not regarded as improper, power to grant the writ should not be in the hands of every justice of the peace (CSP, Col., 1702-3, # 1 3 5 6 ) . See also Carpenter, Habeas Corpus in the Colonies, 8 A H R , 1 8 - 2 7 ; Hurd, A Treatise on the Right of Personal Liberty and on the

Writ of Habeas Corpus ( i 8 ; 8 ) , 1 0 9 - 1 6 . In recommending disallowance the Board of Trade declared that the act was not allowed in any plantation and that an instruction should be issued to prevent unreasonable imprisonment (CSP, Col., 1704-5, # 4 7 5 ) . The act was disallowed in August, 1704, and there was an instructional extension of the writ to several colonies (PC 2 / 8 0 / 1 5 8 ; 1 Labaree, Royal Instructions, # 4 6 4 , 466). However, at a later date the Privy Council acted to protect the operation of the Habeas Corpus Act in the colonies. In 1 7 1 2 , the royal instruction not extending there. South Carolina passed an act empowering the judiciary to put the Habeas Corpus Act in force (2 Stat, at Large So. Car., 399). In 1733 complaint came from the province that the benefits of the 1 7 1 2 act had been denied by means of an act conferring immunity from suit upon public officers for refusing to issue writs of habeas corpus in certain cases (3 APC, Col., # 2 8 6 ) . For the act see 3 Stat, at Large So. Car., 347. The act was then repealed in 1734, upon advice that, being of a very extraordinary nature, it violated the royal instructions because it lacked a suspending clause (3 APC, Col., # 2 8 6 ) . For the instruction contravened see 1 Labaree, Royal Instructions, # 2 2 7 . By this disallowance the 1 7 1 2 act received tacit approbation. Cf. the 1729 instruction to the Bahamas interdicting assembly regulation of habeas corpus proceedings (ibid., # 4 6 3 ) . For New York cf. Goebel and Naughton, op. cit., 502-3.

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at least as of the time of James I, and the specific-reference doctrine was a useful argumentative weapon. The colonists, moreover, could not prudently press claims of general extension, since this would imperil the liberty of their own legislative authority. They were in the inevitable dilemma of the wretch who would have his cake and eat it too. H o w far the judges were infected with this attitude it is impossible to say. There are certain figures, such as Delancey of N e w York and Allen of Pennsylvania, whose connections with local politics were such as to suggest a certain occasional tenderness for contemporary prejudice. A n d where the Governor and Council was the final judicial resort, it is not unfair to infer the existence of a proper sensitivity, especially when a statute which did not obviously touch upon prerogative was in issue. The first colony which afforded the King in Council an opportunity to adjudicate upon the question of extension of acts of Parliament was Jamaica, and here the matter was a much controverted constitutional question. 30 In 1706 one James Allison brought an action of trespass and ejectment in the Supreme Court of Judicature of this colony against Charles Long and his wife Jane, daughter of the late Sir William Beeston. Allison was lessee of the premises in question for a term of years, Anne Hopegood Beeston, widow of Sir William, being lessor (during the litigation she married Sir Charles Orby). The defendants having pleaded the general issue, 31 the jury, in a special verdict, found a 1699 will of Sir William which (excepting a ^3,000 bequest to his daughter Jane), devised and bequeathed the remainder of the estate, including the lands and messuages in question, to his wife Anne. It further found that the four subscribing witnesses had not signed the will in the presence of the testator and that the Statute of Frauds (29 Charles II, c. 3) requiring such attestation and subscription in the presence of the testator was of force and received in the island of Jamaica. The court, in February, 1706/7, after mature consideration found defendants not guilty of the alleged trespass and ejectment. 32 A writ of error to the Court of Errors failed for lack of a quorum to hear the appeal; three councilors were statutorily disqualified as slave factors, and three, being judges below, were disabled by force of royal instructions. Upon petition by Orby and wife to be heard before the King in Council, the 30

See Whitson, The Constitutional Development of Jamaica ( 1 9 2 9 ) , cc. i, vii, for an account of the struggle. This omits treatment of the matter as a judicial question. The author also appears ignorant of the existence and significance of Calvin's Case in this connection; see ibid., 16, note 3. 31 The record in Allison v. Long is set forth in ι MS Jamaica Court of Errors Proceedings,

14-20.

32

The special verdict in support of the finding that 29 Charles II, c. 3, was in force in Jamaica related An Act for Making Good and Valid the Last Will and Testament of Anthony Wood, Late of Port Royal, Gentleman, Deceased. This act made valid a will which was void under the Statute of Frauds, being signed by only two subscribing witnesses.

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factor councilors were ordered to resign their agency or council membership." Another writ of error was then pursued to the Court of Errors by plaintiff, who in his assignment of errors asserted that the Statute of Frauds did not extend to the island nor ought it to be received as of any force therein.84 The Court of Errors, on January 25,1709/10, affirmed the judgment below. The Governor and Council, in addition, unanimously declared that what very much induced them to confirm the judgment aforesaid was that they took the laws of that part of Great Britain called England and all general statutes of that kingdom for the advancement of distributive justice and pro bono publico made and not by express words restrained to the Kingdom of England and dominion of Wales and town of Berwick upon Tweed to be of force and to have always been received as such in this island and that the inhabitants thereof are entiüed to the same as part of their birthright and that the act of Parliament made at Westminster in the twenty-ninth year of the reign of King Charles the Second entided An Act for the Prevention of Frauds and Perjuries has hitherto from the time of enacting thereof always been received and looked upon as of force in this island and the validity and invalidity of wills as to the execution of them has been adjudged according to that Statute.

Further, a colony act had been passed and not disallowed whereby the laws of England touching or concerning the lives, liberties, and estates of the subject were declared to be of force in the island. It was then ordered that these reasons be subjoined to the judgment and that no transcript be made out without such reasons being added to the record. Appellant thereupon prayed and was allowed an appeal to the King in Council upon giving ¿1,000 security to prosecute the appeal with effect. 35 The petition and appeal in Orby v. Long was presented to the King in Council on August 28, 1710, and referred to the Committee. On December 18 the Committee, after hearing both parties and their counsel and after mature consideration of the merits of the cause and the allegations on both sides, advised that the judgments below be reversed and judgment given for appellant with costs in the courts below to be taxed by the proper officer.38 A rehearing upon allegations of new matter failed to alter the advice of the Committee, and on March 1, 1710/1, the Order in Council accordingly issued, reversing judgment.37 33

2 APC, Col., # 1 0 6 7 . j MS Jamaica Court of Errors Proceedings, 19. Previously, on Oct. 4, 1709, a writ of error had been quashed because security was not given according to the royal instructions and act of Parliament {ibid., 1 2 - 1 3 ) . 85 Ibid., 20. 34

3e

P C 2/83/87, 170. PC 2/83/184, 19t, 195. The Order ia Council was read and ordered entered of record by the Court of Errors on May 2 1 , 1 7 1 1 (1 MS Jamaica Court of Errors Proceedings, 54-55)· 37

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In May, 1711, a committee of the Jamaica council informed an assembly committee in conference that the chief point appellant had insisted upon at the conciliar hearing was that the laws of England, both statute and common, were not in force in Jamaica. It further appeared that a 1681 act for declaring the laws of England in force had been disallowed, although regular notice thereof had not been given the island, so that the courts had proceeded to judge according to the laws of England. The assembly committee represented to the House that if the laws of England should not be allowed to be in force, the island would be in an ill condition, and advised an address to the King. 3 8 The suggested address set forth that under a 1661 royal proclamation for encouragement of planters in Jamaica the inhabitants had enjoyed the benefit of the laws of England. Commissions and instructions to judicial and ministerial officers directed action and determinations according to the known laws of England. And it was the constant practice in all insular causes to observe the common law and all general statutes of England made pro bono publico and not by express words restrained to England, Wales, and Berwick upon Tweed. Acceptance of the contrary view as expressed in Orby v. Long would cause a multitude of law suits and disturb quiet possession, especially as to matters of inheritance, to the discouragement of settlement and the destruction of the revenue. It was therefore prayed that the sovereign would confirm all such judgments and proceedings as had been grounded on the laws of England and the known customs of the island.39 The matter was allowed to lapse, however, when investigation revealed the entry of the disallowance of the October 23, 1681, act in the assembly journal during the governorship of Sir Thomas Lynch. 40 The Order in Council in Orby v. Long had no effect as precedent upon judicial conduct in the island, for the courts continued to regard the Statute of Frauds as in force. 41 However, shortly before the arrival of the Duke of Portland as governor, in 1722, the right of the inhabitants to the laws of England was disputed in one of the island courts.42 In October, 1722, an assembly 48

2 Journals Assembly Jamaica, 29. For the disallowance of Feb. 23, 1682/3, see PC 2/69/637. ,e 2 Journals Assembly Jamaica, 30. The clause relied upon in the December 1 4 , 1 6 6 1 , proclamation stated "that all children of any of our naturell borne subjects of England to be borne in Jamaica, shall, from their respective births, bee reputed to bee, and shall bee, free denizens of England, and shall have the same privileges, to all intents and purposes as our free borne subjects of England" (4 ibid., 455). Previously, on March 15, 1 7 1 0 / 1 , petitions had been presented to the King in Council from London

and Bristol merchants praying confirmation of all judgments given in Jamaica grounded on the laws and statutes of England and the known customs of the island. These petitions had been referred to the Board of Trade (PC 2/83/219). 40 2 Journals Assembly Jamaica, 3 1 . 41 In an Oct. 23, 1723, report of an assembly committee it was advanced that a statutory declaration that the Statute of Frauds was in force in the island would be in harmony with judicial decisions since Orby v. Long (2 ibid., 472-73)· 42 2 ibid., 472.

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committee was appointed to bring in a bill for remedying and preventing several irregularities, inconveniences, and arbitrary proceedings which had lately appeared in the courts of law and equity in the island. The committee was instructed inter alia to insert a clause directing observance by the courts of the Statute of Frauds in all cases, as if enacted in the island.43 But following another committee report that a provision declaring the laws of England in force would obviate specific provisions about judicial conduct,44 there was passed in 1722/3 an "Act for making His Majesty's revenue perpetual and augmenting the same and continuing and declaring what laws are in force in the Island." By this it was enacted that all the general known laws, statutes, customs, and usages of England concerning the life, liberty, or property of the subject in force in England on December 14, 1661, and all other English statutes made since that date either declaratory thereof or for the better enforcing, regulating, and explaining thereof, or for the amendment of the law, or for the common advancement of justice, or for securing the rights, liberties, or properties of the subject were to be laws of Jamaica mutatis mutandis.4® The act was disallowed on August 6, 1723; one objection made was that a clause therein proceeded upon the supposition that the Statute of Frauds was law in Jamaica, "but it has been determined in Councill that the said Statute is not in force there." 46 The Jamaicans remained undaunted. In 1724 a trespass and ejectment action was brought in the Supreme Court against one Thomas Barrett by the lessee for a term of years of two parcels of land in St. Catherine's parish. This land had been devised to lessor Barrow Harris as residuary legatee under the will of one Edward Harris. The defendant pleaded not guilty; the jury in a special verdict found the aforesaid will in the handwriting of the testator, but that it was neither signed by the testator nor subscribed by any witnesses. Also found were the provisions of the Statute of Frauds requiring the signing of a will by the testator and subscription in the presence of the testator by three or four credible witnesses. In November the court adjudged the defendant not guilty and awarded ¿ 2 costs. A writ of error to the Court of Errors was obtained; in the assignment of errors it was alleged that by the laws of Great Britain in force in the island and by the laws of the island the will was valid, notwithstanding the Statute of Frauds. 47 The Court of Errors proceeded to hear argument on January 27, See 1 ibid., 427. 2 ibid., 456. 45 3 APC, Col., # 4 5 ; Whitson, op. cit., 1 4 4 - 4 7 . 3 APC. Col., # 4 5 : 2 Journals Assembly Jamaica, 486-89. See also the third objection to the act mentioned in the Assembly report of Oct. 23, 1 7 2 3 (2 ibid., 4 7 2 - 7 4 ) · 43 41

The record in Doe ex dem. Harris v. Barrett is set forth in 1 MS Jamaica Court of Errori Proceedings; sub January 27, 1 7 2 4 / 5 . Another cause involving the same issues was agreed by the parties to be decided by the argument io this cause.

47

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1724/5, but adjourned subsequent hearing until the twenty-ninth. On that date it was objected by the council for the defendant in error that the Statute of Frauds was of force in their island and consequently the paper writing said to be the will of the said Edward Harris was not sufficient to pass his lands and tenements, but the council on the other side urged that the statute was not in force here, and had been adjudged so by her late Majesty in Council in the case of Orby and Long in relation to Sir William Beeston's will. And having fully heard what they had further to offer all persons were ordered to withdraw and the question was put whether the two judgments so given in the court below should stand confirmed or reversed, and there being an equally of voices it was ordered by the court that the said causes should be confirmed.44 N o appeal was ever prosecuted in the cause.49 Before censuring the Jamaica Court of Errors for not following Orby v. Long, we must further pursue the problem of the effect of Orders in Council as precedents in the colony directly touched by a conciliar ruling. It should not be overlooked that Committee reports were not properly judgments, but as we have remarked, they were in the nature of advisory opinions tendered to the King in Council. A patent distinction between Committee reports and judicial decisions is the absence of dissenting reports in the former, presumably upon the basis that dissenting advice would merely confuse the sovereign.80 A practical difficulty is found in the nature of the Committee report embodied in the Order in Council. As we have seen, most reports merely incorporated the petitionary allegations of the appellant and added the Committee advice on the appeal—the grounds of the advice usually did not appear on the face of the Committee report. Furthermore, Orders in Council enjoyed little notoriety—the Privy Council registers were not open to public inspection,81 and 48

ι ibid., sub January 27 and 29, 1 7 2 4 / 5 . The judgment might be justified by "long usage and general acquiescence" under a May i8, 1724, opinion of the crown law officers; see ι Chalmers, Opinions, 220. 48 Some confusion exists as to the appellate course of the cause. On May 1 3 , 1727, petitions and appeals were presented to the Council in what appears to have been the same two causes, but the date of the Court of Errors judgment was given as Oct. 5, 1726 (PC 2/89/357). Neither was further prosecuted. On July 5 a petition and appeal was presented by Thomas Barren in behalf of Peter Miller, minor, heir at law of the deceased Edward Harris, from a Jan. 29, 1 7 2 4 / 5 , judgment of the Court of Errors in favor of Barrow Harris. It was prayed that the appeal be received late, as de-

lay was caused by the death of Barrow Harris and ignorance of the identity of his heir. It was also prayed that the widow and the eldest son of said Barrow Harris be summoned to appear and defend the appeal and that a short day be appointed for a hearing (PC 2/90/37). No further entry on the appeal is found. 50 In the February 20, 1627/8, conciliar regulations it was laid down that "when the business is carried according to most voices, no publication is afterwards to be made how the particular voices and opinions went" (Selborne, Judicial Procedure in the Privy Council, 66; 1 Clarendon, State Papers, 36). 51 2 Knapp, Appendix XII. For the neglect and inaccessability of the earlier conciliar records see Knox, Extra Official State Papers (1789), 1 5 - 1 6 .

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few conciliar hearings, although public, were embodied in printed reports.82 The evidence which can be adduced to show that Orders in Council were regarded as precedents is of later date than Orby v. Lang, but the principle is equally applicable to the earlier period. Although but few instances are found of the citation of conciliar precedents on colonial appeals,"3 Orders in Council were frequently cited in Channel Islands causes.54 In 1741 we find the Order in Council in Bennett v. Warren from Barbados regarded as a "lasting precedent in like cases." 5 5 The Rhode Island appeal of McSparran v. Hazzard (1752) indicates some development in conceptions of precedent. Here the Privy Council was called upon to adjudicate a question previously before them—the meaning of the words "orthodox ministry" in a land grant.86 Respondent asserted that if appellant is to be indulged with bringing the very same question in judgment before His Majesty as often as he pleases, the determination of the crown would never be final; and the subject would be ruined by an endless litigation; besides the inconvenience of thus, in effect, subjecting the determination of His Majesty in Council to the review of the courts below.67 Sir George Lee noted as a reason for affirmance that "there had been a former judgment of the Lords in his [the dissenting minister's] favour." Since there is no question of res judicata here, the reference is obviously to the 1734 Order in Council in Torrey v. Mumford.58 This indicates that the Lords themselves viewed their orders as precedents for the Committee. In the same year the crown law officers, in advising an appeal on a special verdict to settle the New Jersey land riots, declared that "a solem determination once had here will be a rule for all similar cases." 59 Charles Yorke noted at the 1760 hearing of Pipón v. Pipon from the isle of Jersey that the Committee "declared they would not alter or break in upon the judgment's of the Court unless clearly warranted by presidents or the law of the Island." 80 This is further borne out by the circumstance that in Burn v. Cole, a 1762 appeal 62 The reports of Jerome W. Knapp, starting with 1829, were the first attempt at consistent reporting of Privy Council determinations. 53 In Philips v. Savage, appellant cited Winthrop v. Lechmere (5 Mast. Hist. Soc. Proc. [ist. Ser.], 66-67); in Camm v. Hansford and Moss, appellant cited the same case (Add. MS, 36,220/54). In Hearn v. Capper and Young appellant cited Kennedy v. Fowles and Richie v. Nanton (Add. MS, 36,218/236). In Mansfield v. Bontein, appellant cited Kennedy v. Fowles (1 Lee Prize Appeals Cases, 23 [NYPL]). 54 See Le Vesconte v. Pinel (Add. MS.,

36,218/49-52); Le Marchant v. Perchard (ibid., 53-58); Pipon v. Pipon (ibid., 59-63). 55 See ι Carribbeana (1741), 260. For the Order in Council referred to, see PC 2/93/263. 50 See Washburne, Imperial Control of Administration of Justice, 107-15. 67 Case of Respondent, p. 7 (L.C., Law Div.). 68 Lee's remarks are endorsed on Case of Respondent, p. 7 (L.C., Law Div.). For Torrey v. Mumford, see PC 2/93/281, 489-504, 527. 537; 3 ¿PC. Col, #293. 59 8 Doc. Rei. Col. Hist. N.J., Part I, 57. 60 Endorsed on Case of Appellant (Add. MS, 36,218/59).

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from the Jamaica Ordinary, Lord Mansfield discussed several previous conciliar appeals.61 Mansfield's unwonted timidity when he dodged a decision on the application of Shelley's Case in Petrin v. Bla{e 6 2 is explicable on the ground that the noble lord had already in Taylor v. Horde (1757) 6 3 embarked upon his attempted recasting of real property law and that the cause presented issues on the solution of which he desired the weight and prestige of the King's Bench itself.84 In Quebec in 1769 we find that Orders in Council were regarded as precedents,65 and we also find reference to the "decision" of the Privy Council in Mohegan Indians v. Connecticut,66 From this review it is evident that the Council itself regarded earlier orders as precedents in proceedings before itself and that in some colonial jurisdictions during the eighteenth century there was a disposition to speak of certain Council cases as precedents. Under the circumstances immediately prior to the action of the Jamaica Court of Errors, Doe ex dem. Harris v. Barrett constituted a deliberate defiance of a precedent established by an appropriate authority. This refusal to follow conciliar precedents was a more serious attack upon the Council's jurisdiction than the refusal to obey Orders in Council upon individual appeals. For here, instead of one litigant, countless suitors might be affected. True, an appeal could be taken in cases in which precedent was flouted, but to many this was obviously an illusory remedy. Eventually the problem of statutory extension in Jamaica was solved by a provision of a 1728 statute declaring that "all such laws and statutes of England as have been at any time esteemed, introduced, used, accepted, or received as laws" in the island should continue in force. This act was neither affirmed nor disallowed by the King in Council. 67 In 1722, or about the time when the Jamaicans were attempting to secure by statute what had been judicially denied them, the Privy Council had occasion to make a rather complete statement respecting the matter of reception of English law. It was declared by the Master of the Rolls on August 9, 1722, that it had been determined by the Privy Council on appeal that in the case of a new and uninhabited country discovered by English subjects, such country was to be governed by the laws of England, subjects carrying their laws with them as their birthright. But after such country was inhabited by the English, acts of Parliament not naming the plantations would not bind them. In the case of a conquered country the King might impose such laws as he pleased; 61 ι Ambler 415. For appellant's conciliar "case" see Add. MS, 3 6 , 2 1 8 / 1 4 4 ; for notes of Charles Yorke on the hearing see ibid., 146. 42 See supra, pp. 325-26. 63 ι Burr. 60. 84 See 7 Holdsworth, HEL, 43-46.

65

1 Doc. Rei. Conti. Hist. Canada, 360. See 27 Pa. Mag. Hist, and Biog., 159. 67 Acts Assembly Jamaica ( 1 7 3 8 ) , 216, 223. See also 1 Long, The History of Jamaica (1774) 219-20.

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until such imposition the laws of the conquered country prevailed, unless they were contrary to religion, malum in se, or silent—in such cases the laws of England prevailed.88 Although we have made an exhaustive search, we have found no clue as to the appeal upon which this determination was made. The declaration of the Master of the Rolls, while it actually added little to what already had been declared in the common law courts of England, was significant as an exposition of conciliar policy. What made the statement of particular importance was the fact that it was published in Peere Williams' Reports (1740), which properly enjoyed great reputation both in England and overseas. This accident of publication probably had more effect upon the colonial courts and lawyers at large (since it was available, as were precedents in general) than any particular conciliar decision made during the first half of the eighteenth century. This so-called "Privy Council Memorandum," however, settled nothing as to the extension of statutes enacted antecedent to settlement, although the expression "carrying their laws with them" suggested no limitation upon the matter of adopting early acts of Parliament. On this point discussion continued unabated in the colonies during the 1730's. In Maryland in particular, between 1722 and 1732 the force of acts of Parliament proved a fertile ground of controversy, the details of which need not be recapitulated, as they have been set forth by an able hand." It need only be added that as late as 1744/5

Mary-

land courts were construing some clauses of the Statute of Frauds to extend to the colony and some not to extend.70 68 2 Peere William! 75. Cf. the 1720 opinion of Richard West that "all statutes in affirmance of the common law, passed in England, antecedent to the settlement of a colony, are in force in that colony." Further, "let an Englishman go where he will, he carries as much of law and liberty with him, as the nature of things will bear" ( 1 Chalmers, Opinioni, 1 9 4 9 5 ) . In connection with Orby v. Long note the 1724 statement of crown law officers Yorke and Wcarg that acts of Parliament might be of force in Jamaica by "long usuage, and general acquiescence" (ibid., 2 2 0 - 2 1 ) . 69 See Sioussat, The English Statutes in Maryland, 21 Johns Hopkins Univ. Studies ( 1 9 0 3 ) , # 1 1 - 1 2 , c. 3. 70 In a Jan. 3, 1 7 4 4 / 5 , letter of Stephen Bordley to Richard Porter the writer stated, "as to the case put by you, there is but one thing which raises in me a doubt whether an action may be advised to be brought, and that is a statute which makes any such promise void unless the same be in writing, which, whether that part

of the Statute would by the judges be construed to extend hither or not, is my doubt in the case; for if it does not extend hither, and the promise can be proved to have been verbally made, and the lady has by her carriage only, seemed consenting, without a promise on her part, the action may well be maintained; but if it doth extend hither it cannot be maintained, unless the promise or some note or memo thereof be in writing and signed by the party: and as to the extension of that statute, there are some clauses of it which have been construed to extend hither, and others not; nay the same different constructions as to the extending, have been made with regard to different parts of one and the same clause, and to a like construction the court showed an inclination last September; in some parts of this very clause, I know is introduced among us, tho that part relating to promises of marriage I believe never was determined upon; except in one instance which I now recollect and which was determined on your side

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In 1728 Sir William Keith wrote that it was generally acknowledged in the plantations that the subject was entitled by birthright to the benefit of the common law of England. But the common law having been altered by acts of Parliament, it was still a question in many colonial courts whether any statutes not mentioning the plantations were of force until received by colonial act. Allowance or rejection of statutes often depended upon the influence of counsel with an unqualified bench and upon judicial partiality. 7 1 A 1730 observer upon the judicial system of South Carolina commented vigorously upon the effect of a clause in the provincial act of 1 7 1 2 that every part of the common law of England not altered by certain enumerated statutes should be of full force in the province. According to this commentator the common law as accepted in the province varied extensively from that in force in England, because many acts of Parliament changing, improving, or amending the common law were not enumerated in the 1712 statute. H o w far this might affect the prerogative of the crown or the interests of the subject or the correspondence which plantation laws ought to have with the laws of England was submitted for consideration. But it was advanced as extremely absurd for the provincial courts to pass a different judgment concerning the obligation of the statutes of England f r o m that which would be given on appeal to the K i n g in Council. 7 2 T h i s observer then asserted that it was gready to be wished, that in all His Majesty's colonies and plantations in America, some general method was established for settling the forms and methods of proceeding in the courts of judicature and to declare certainly what manner of obligation English statutes made before the settlement of the several colonies, have in the plantations, it being credibly reported that throughout the whole continent of North America, there are not two colonies, where the courts of justice or the the question; and as the court seem inclined to introduce no other statutes among us than what have already been introduced, and carry that so farr, as to admitt one and exclude another part of the same clause and this part having never as I remember, been determined against you, and has in one instance been determined for you, I should think the chance is better than equal" (MS Stephen Bordley Letter Book,, 1740-47, 1 0 1 - 2 [Md. Hist. Soc.]). Earlier in 1738 an appeal had been taken to the King in Council in Jennings v. Cumming from an Oct. 25, 1 7 3 7 , sentence of the Court of Delegates which upheld the validity of the will of one Amos Garrett, although not signed and sealed in the presence of three credible witnesses (PC 2/95/46; MS Testamentary Proc., 1734-38, 306-45 [Md. H J L ] ) . But the

appeal was dismissed for nonprosecution (PC 2 / 9 5 / 3 0 1 , 340). On the extension of the Statute of Frauds to Maryland see further Clayland's Lessee v. Pearce ( ι Harris and M'Henry's Rep. 29); Carroll v. Llewellin (MS Ct. of Appeals Misc. Proc., 1749-60, 80-81 [Md. H.R.] ). 71 CSP, Col., 1728-29, # 5 1 3 ii. Compare the views expressed by Keith in 1 7 1 7 / 8 (3 Mins. Prou. Coun. Pa., 3 4 - 3 5 ) . 72 MS Observations on the Present State of the Courts of Judicature in His Majesty's Province of South Carolina ( 1 7 3 0 ) , 25-26 (L.C.). The cases cited by the writer on the extension of the laws of England to the plantations were Vaughan 402; Privy Council Memorandum, 2 Peere Williams 75. For the act referred to see 2 So. Car. Stat, at Large, 401.

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methods of proceedings are alike, and that there is as great a variety of opinion concerning the matter that has been here briefly hinted at." In 1735 John Randolph of Virginia, in discussing the controversy over the equity jurisdiction in New York, observed that the New York lawyers blindly followed a common error in their assumption that acts of Parliament were in force in the colony. The common law should be the only rule; if acts of Parliament were allowed to be pleaded, uncertainty would prevail as to which were in force. Those declaratory of the common law served rather as evidences of the law, than as statutes of binding quality. 74 In none of the colonies where the question of the applicability of English statutes was discussed does there seem to have been much attention leveled at the royal charters as expressions of policy. Irrespective of the circumstance that a particular plantation had once been chartered or still cherished such an instrument of government, it was arguable that the standard of the law of England to which colonial enactment must conform or must not be repugnant implied at least the opportunity of judicious selection in the statute book by the chartered authority. An argument from charter provisions was made by Daniel Dulany of Maryland in 1728, but he settled upon the "Rights of Englishmen" paragraph of the patent for his disquisition, obviously because the lawmaking power was vested by the charter in Lord Baltimore. 75 In Rhode Island we have seen no more than intimations of reliance upon the charter. In a 1729 answer filed to an appeal to the Governor and Council from a probate order of the Newport town council it was averred that only such acts of Parliament were in force as specifically extended to the plantations or by some law or custom were introduced as being consistent with the public good and constitution of the colony.™ Some years later it was also claimed that the courts had admitted such statutes "as relate to the common law." TT The reference to custom or judicial practice, we think, may have been made with the rights of lawmaking granted by charter in mind. 78 The Rhode Islanders seem to have had an exaggerated idea as to their constitutional (viz., charter) privileges, for in a 1741 cause the extension to the plantations of 5 George II, c. 7, wherein they were specially mentioned was contested by counsel on the ground of inapplicability; 7 8 the court prudently 13

MS Observations, 26. John Randolph to Capt. Pearse, May 20, 1735 (Κ'">· Smith MSS). 75 The Right of the Inhabitants of Maryland to the Benefit of the English Laws, in Sioussat, op. at., 98-99. For the clause relied upon see 3 Thorpe, Federal and State Constitutions, 1 6 8 1 . 78 MS Petitions to RJ. General Assembly, ¿728-jj, # 5 1 .

77

Ibid., 1748-50, #35. On this mode of thought see ι Winthrop, History of New England (ed. by J. Savage, 1 8 5 3 ) , 388-89. 79 In Peckham v. Allen the Superior Court of Judicature upon argument of a special verdict held that the act was in force in the colony. In his reasons of appeal appellant alleged that the act "was against law and equity and de«true78

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did not attempt to override the letter of the law. However, in Carpenter v. Potter (1748), an action for waste begun in the Inferior Court of Common Pleas, the Rhode Island Superior Court of Judicature boldly faced the issue of applicability with regard to general statutes of the realm, all of which had been passed antecedent to emigration. Plaintiff founded his action upon the medieval statutes of England regarding waste. Defendant pleaded that such acts had no force in any court of the colony, since they did not specifically extend to the colony and had not been introduced by any act of assembly. T h e plea was overruled, the case committed to the jury, and judgment given for the plaintiff for ¿ 2 5 0 damages and costs. Upon appeal to the Superior Court of Judicature in March, 1748/9, Potter "reinforced" his plea in bar, the judgment of the Inferior Court was reversed, and the action barred. 80 Petition was made for statutory relief against the effect of this judgment in excluding the laws of England from the colony, 8 1 and in February, 1749/50, an act was passed declaring specified acts of Parliament to be in force in the colony. 82 T h e confused state of opinion in Rhode Island is attributable to the belief that the only valid test of extension of an English statute was its applicability to local conditions and that this state of fact the colonists alone were capable of deciding. Allowing even for the exigencies of argument, the attitude is apparently one of guarded and rather general hostility. There is no recognition of a distinction between statutes made before and after settlement. A n d although the courts gave no aid and comfort to the suggestion, there is doubt cast even upon the rule of specific reference. Many years were to pass before such challenge of Parliament's right to legislate was to become current. In most colonies during the first half of the century it was rather the concern of the provincials to claim even what, on the technical grounds asserted by the Privy Council, was not intended for them, in other words all new statutes of general nature. It is beyond our purpose to ferret out the details of statutory reception. In the immune zone beneath the fixed amounts of civil appeals, the colonial judicial records show a general and widespread practice of using as applicable English acts passed after colonization in which the dominions were not named. In criminal proceedings, where the jurisdiction was virtually exempt from tive to the King's subjects" within Rhode Island, "as well as the laws of the same colony already made and provided in cases where real estates are to be atteached for the recovery of debts of any kind" (MS RJ. Cases in Equity, 1741, Part I, # 3 4 ) . The same reasons of appeal were set out in Peckham v. Cornell (ibid., 1741, Part II, # 7 ) ; Peckham v. Fryers (ibid., 1741, PaTt II, # 1 1 ) . But in all three cases the

Equity Court upheld the extension of the statute to the colony (MS RJ. Equity Court Judgment Book., sub Nov., 1 7 4 1 , #4-6). 80 MS RJ. Sup. Ct. Jud. Judgment Booi 1747-69, 35. 81 MS Petitions to RJ. General Assembly, 1748-50, #35. Acts and IMIVS R.I., 7745-52 ( 1 7 5 2 ) . 7 0 - 7 1 .

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a n y conciliar control, the examples of adaptation are m a n y and striking. A great deal of this went on without attention to technical distinctions, because in the minds of the lawyers a useful statute, being part of the then l a w of E n g l a n d , w a s f o r their practical purposes not to be distinguished f r o m a reported decision or other muniment of the law. Certain acts of Parliament, h o w e v e r , were not susceptible of this sort of covert absorption and necessitated local legislative action. Here there were two choices open: a provincial statute directing, as the Jamaica act discussed above, the reception of particular E n g l i s h statutes, or a provincial act which substantially set forth the substance of the desired model. T h e fate of such enactments when they reached the B o a r d of T r a d e was various. In certain cases provincial statutes adopting specific acts of Parliament were approved, 8 3 and in others they were disallowed. 8 4 T h e provincial rewritings of particular acts of Parliament w e r e subject to equally vagarious treatment. T h e long battle in N e w Y o r k f o r an acceptable statute against malicious informations patterned upon the E n g l i s h statute of W i l l i a m and M a r y is an example of the hazards which such lawm a k i n g had to surmount. 8 5 THE PRE-SETTLEMENT STATUTES

A l t h o u g h the colonists' chief difficulties were in connection with new statutes of general purport that failed to mention the dominions, and this because of the express rule of the English courts, they were not always allowed f r e e d o m to treat as applicable statutes enacted before settlement. In other w o r d s the authorities at Whitehall sometimes undertook themselves to settle w h a t acts were suitable to colonial conditions. A s far as we are aware, this general question w a s judicially determined for the first time in 1753, when the appeal of Dunbar

v . Webb f r o m A n t i g u a presented to the K i n g in Council the question

whether or not the Statute of Charitable Uses (43 Elizabeth, c. 4) extended to that island. By virtue of a marriage settlement and of recent inheritance, one T h o m a s W a t k i n s in F e b r u a r y , 1745/6, died possessed of a large plantation and a considerable number of slaves. In his will W a t k i n s bequeathed to each of his daughters £2,000. T h e will further provided that the lands settled upon the testator by his father should be equally divided into ten-acre lots and that all testator's slaves should be equally appropriated to these lots. T h e lots and the accompanying slaves were to be disposed of by the present and f u t u r e assemblies and councils, w h o were designated fiduciaries, to reduced and honest families for the purpose of strengthening the defenses of the island. Other clauses provided for the conversion of testator's mansion house into a resi33

8

2 Stat, at Large Pa., 199, 437.

< 4 Col. Laws N.Y., 953.

85

See Gocbel and Naughton, op. cit., 372,

376, 378.

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dence for the Commander-in-Chief, for communal use of a windmill, and for the erection and support of a school. Certain friends were named executors and guardians. 8 8 In April, 1747, an information was filed in the Antigua Chancery Court by Attorney General Warner in behalf of the present and future legislatures against the executors of the will and others in possession of the realty thus devised. This information recited inter alia a 1700 local act for dividing uncultivated lands among disbanded soldiers and other impecunious settlers for promoting settlement, the testator's intention frequently expressed to devote his property to charitable uses, and his conviction that the 1700 act provided the most effectual means thereto. A f t e r reciting the will the bill declared that there was no means at common law to settle the charitable uses and that settlement could not be had under 43 Elizabeth, c. 4, for want of proper persons and officers. Therefore, the bill prayed a discovery of the property and that the charitable uses might be settled according to the intent of the testator. In their answers defendants insisted that the will was void in law and equity, that 43 Elizabeth, c. 4, did not extend to Antigua and had not ever been so determined upon appeal, and that from its nature the statute was incapable of being extended or carried into force there. Therefore, the pretended devises could receive no force under that statute. After a hearing in January, 1750/1, it was decreed that the will was a good limitation and that the appointment to charitable uses was within the meaning and intent of the Statute of Charitable Uses. T h e defendants were thereupon ordered to convey specified lands and negroes to such person or persons or to such use or uses as should be appointed by the votes, resolves, or acts of the present or any future legislatures. Defendants thereupon prayed and were granted an appeal to the K i n g in Council. 8 7 This appeal and an appeal from a May, 1751, decree in the cause were entered early in 1752, but no hearing took place until February of the next year. 88 A t the several hearings appellants urged inter alia that the devise was ineffectual, since nothing was expressly devised to the legislative houses. If making these bodies executors amounted to a devise, it was void for want of capacity in the devisees, since they were not corporate bodies able to take in succession. Since 43 Elizabeth, c. 4, did not extend to Antigua, it was impossible to establish the devise as an appointment under the statute. 89 Respondent answered that this statute did extend to Antigua, since it was made prior to settlement and consequently was to be considered as carried to the colony by the first settlers, with the common and statute law then in force; further, that the will of testator 86 See the "cases" of the parties (Add. 36,217/34-43). 87 Ibid.

MS,

88

PC 2 / 1 0 2 / 4 3 2 , 493; PC 2 / 1 0 3 / 1 1 7 , 1 2 9 , 1 3 0 , 2 5 5 , 3 0 1 , 3 2 2 , 329. 80 Case of Appellant {Add. MS, 3 6 , 2 1 7 / 3 4 - 3 7 ) .

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Thomas Watkins made a good appointment to charitable uses within the intent, meaning, and equity of 43 Elizabeth, c. 4.'° Chief Justice Willes, in giving his opinion in the cause on March 1,1753, declared that the case was not within 43 Elizabeth, c. 4; Willes was not very certain in his opinion, but thought that the devises were not for charitable uses. But it was plain to the Chief Justice that the statute did not extend to Antigua, since it could not be executed in that island for want of proper officers. The plantation not having received the act, it could not at that time be supposed to be in force.91 Both decrees were accordingly ordered reversed, and the information was dismissed.92 It is unfortunate that more exact notes on Willes' opinion were not made. His objections to the lack of charitable purpose is hardly in accordance with the liberal policy of the Chancery with reference to the list in 43 Elizabeth, c. 4, and was, perhaps, induced by the testator's unfortunate reference to defense. For shortly before Watkins' death, Antigua, made vulnerable by absentee ownership, had sought to secure additional white settlers to strengthen the island defenses, a matter which had been before the English authorities and of which Willes was in a position to be aware. He may consequently have regarded the reference to "reduced" families as beside the testator's real purpose. This objection did not apply to the question of statutory extension. The suggestion that the act could not apply "for want of proper officers" seems to us specious. The issue was really whether the legislature possessed corporate capacity for the purposes of the trust, and this was wholly evaded. Since the island possessed a Chancellor, and since only two years earlier Lord Hardwicke in Attorney General v. Middleton 93 had held that the Chancery had possessed original jurisdiction over charities at large independent of the statute, it is difficult to see just what a refusal to extend the statute accomplished for the future handling of similar matters. Possibly Willes was influenced in his thinking by the recent act 9 George II, c. 36, which restrained devises of realty for charitable purposes. This act applied to England only, but was essentially a revival of mortmain law insofar as devises of realty were concerned. The refusal to extend 43 Elizabeth, c. 4, to Antigua in effect accomplished the same end as to the island.94 A few years later there came before the Council a much more difficult 80

Case of Respondent {Add. MS, 36,217/3843). Some question was raised as to whether the Statute of Frauds and 9 Geo. II, c. 36, extended to the colony, but the contention of extension was not seriously pressed. 91 Endorsed on the Case of Respondent (Add. MS, 36,217/43)·

92

PC 2/103/330, 344. This is presumably the "Nevis" case mentioned by Lord Mansfield during the argument in Campbell v. Hall, 20 Howell, State Triait, 289. 93 2 Vctey Sen. 327. Cf. Finlason, History and Effects of Laws of Mortmain ( 1 8 5 3 ) , 44.

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problem of extension involving the bankruptcy statutes—a long series commencing with acts of Henry VIII and running down into the reign of George II. Together the statutes formed a loosely jointed codex on the subject, so it was conceivable that the early statutes could not be treated as separable. The first appeal which concerned the extension of these acts was that of Richards et al. v. Hudson et al. from Virginia, in 1762. In this cause, by virtue of English legacies and chancery decrees, George Buchanan and William Hamilton, the executors of Neil Buchanan and inhabitants of England, were the debtors of the respondents who were resident in Virginia. The sums owing had long been due, but for some reason, which does not appear in the case, had not been paid. In May, 1752, a commission of bankruptcy issued against Buchanan and Hamilton in England, and one Rickards and others were named assignees. Since a great part of the assets consisted of goods and outstanding debts in Virginia, the assignees continued Francis Jerdone and Robert Duncanson, the former Virginian factors of the bankrupts, to assemble and remit such assets of the bankrupts' estates. In April, 1754, the respondents filed a bill in the Virginia Chancery against the bankrupts and their factors for the sums due under the above decrees and legacies. The defendants mainly insisted in their answers that the bankrupts' effects had vested in the assignees, that the assignees should have been made parties, and that no assets remained in their hands. In 1757 a bill of revivor and supplemental bill was filed by the respondents against the bankrupts, the factors, and the assignees; in their answer the latter insisted that the Virginia Chancery Court had no jurisdiction. Upon hearing in April, 1761, the court assumed jurisdiction and decreed that the factors should pay certain sums from the assets of Buchanan and Hamilton and their assignees which were at present in their hands or which had been in their hands when served with process.95 From this decree the defendants appealed to the King in Council, the appeal being entered in April, i762. 9e In their brief appellants urged that the Virginia court could have no jurisdiction, since no part of Neil Buchanan's effects remained in Virginia and the executors and assignees all resided in England. If it did possess jurisdiction, it could not divest the assignees of the bankrupts' effects previously vested in them by commission prior to the filing of the Virginia bill, and give preference to respondents in direct opposition to the bankruptcy laws." In reply, respondents argued that the effects of a bankrupt were to be applied according to the laws of the country in which they were located. 95

Case of Appellant (Add. MS, 3 6 , 2 1 8 / 1 9 9 201); Case of Respondent (ibid., 205-6).

98 9T

PC 2/109/196. Case of Appellant (Add. MS, 36,218/199).

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Thus, the bankrupts' effects in Virginia were liable to any creditor suing there according to a provincial Act for the Relief of Certain Creditors (1744), which had received royal approbation.98 Upon hearing the appeal, Lord Mansfield declared that whether the suit was taken as a bill of foreign attachment against the factors as debtors to the bankrupts, which had never been allowed in the English Chancery Court, or as a bill against the bankrupts or their assignees, in either case the decree should be reversed. In the course of his opinion Mansfield declared that the bankruptcy laws did not bind Ireland, the plantations, or foreign countries. However, where an assignment had been made in England, it would include all personalty (but not realty) wherever located." A creditor abroad who gained priority would not be ousted by the mere assignment under the bankruptcy acts, but no priority had been achieved in the instant case, because the assets had been gathered in by the assignees prior to any action by the Virginia creditors. It was therefore accordingly advised and ordered that the decree should be reversed and the sum decreed repaid, deducting the dividend payable under the commission of bankruptcy. 100 Apparently Lord Mansfield made no distinction as to extension to the plantations between the early acts 34 and 35 Henry VIII, c. 4, 13 Elizabeth, c. 7, 1 James I, c. 15, and the later acts 4 and 5 Anne, c. 4, and 5 George II, c. 30, ·» Case of Respondent (Add. MS, 36,118/205). For the act see 5 Hening, Stat, at Large Va., 220. For the confirmation see 4 A PC, Col., p. 809. • » T h e opinion (Add. MS, 36,218/204) reads as follows: "Lord Mansfield sayd that as to the agents in Virginia this was a bill of foreign attachment the agents in Virginia being debtors to the bankrupts which of itself was enough to overturn the decree, the Court of Chancery here having never allowed bills of foreign attachment which is a custom peculiar to the City of London but taking it as a demand against the bankrupts themselves tho' the bankrupt laws bind not Ireland or the plantations or foreign countrys yet where the act of bankruptcy is committed here and an assignment made of the bankrupts estate that will take in all the personal estate where ever it is (tho' not the real lying abroad because personal follows the person but lands follow the country) and in case of effects being abroad if before they are got in by the assignees a creditor residing there gets the start either by attaching the effects or by some other method allowed by the law of the country that can't be helped but such creditor would not be per-

mitted to receive any thing further here until the other creditors had received as much as such creditor had done out of the foreign effects and this he said he had known done. Here the assignment was long prior to the respondent's bill and the agents had sworn by their answer that from the first notice they had of the bankruptcy they had acted as agents for the assignees so no colour for taking the effects out of the hands of the assignees, the K i n g is not bound by the Bankrupt Acts more than foreign countrys yet if the assignment of the bankrupts effects be made prior to the extent it will take place thereof and therefore provisional assignments are often made to prevent the extent and will do so when fair and without fraud so whether the suit instituted in Virginia was taken as a bill of foreign attachment against the agents as debtors to the bankrupts which had never been allowed in the Court of Chancery here (tho' attempted) or taken as a bill against the bankrupts themselves or the assignees standing in there place, in either case the decree must be reversed." W e have not undertaken to punctuate this report. 100 PC 1/109/288, 326.

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despite the fact that the first three statutes were all enacted prior to the settlement of Virginia. Although the classification of the plantations with foreign countries is strange, it appears from notes taken by Charles Yorke at the hearing that the basis of Mansfield's declaration as to the plantations was his opinion that the bankruptcy acts were criminal or penal in nature. 101 It is further to be observed that in 1723, long before this case arose, Charles Talbot had rendered an opinion that the bankruptcy acts did not extend to the plantations, because they were enacted since settlement and did not expressly name the plantations, disregarding entirely the earlier statutes.102 There is no sign that Mansfield was aware of this earlier view; nor do the notes on his opinion indicate that he was at all affected by a very recent Board of Trade report on a Massachusetts "bankruptcy" act recommending disallowance for reasons which point to a pronounced opinion that creditors resident in England should be protected and that a colonial bankruptcy procedure would be prejudicial.103 The intention, of course, of Mansfield's thesis that although the bankruptcy acts did not "bind" the plantations, the assignment in bankruptcy comprehended personalty wherever situate was to protect the English assignees. This notion became current as a result of this case and resting on oral tradition was soon garbled and thus brought confusion into the law. In the argument in Hunter v. Potts (1791) in King's Bench, it was represented that by the decision in Richards v. Hudson "the operation of the bankrupt laws on property situated in another country was fully established, at least as against those who were subject to the dominion of our own laws." 1 0 4 This contention made arguendo was implicitly accepted as law by at least one English text writer. 106 Shortly afterwards the Committee entertained another appeal, Cleeve v. Mills, which again concerned extension of the bankruptcy acts to Virginia. Upon hearing this appeal, Lord Mansfield reiterated categorically that the bankruptcy acts did not extend to the plantations, Scotland, and Ireland. In this cause a "race of diligence" had taken place, but the Virginian creditors were the swifter. Affirmance of the decree appealed from therefore confirmed that a colonial creditor could enjoy priority by obtaining judgment against a bankrupt's assets in the colony before such assets came into possession of the assignees under the commission.106 101 See Add. MS, 36,218/2016. Compare the views of Blackstone (2 Commentaries, 472) that "at present the laws of bankruptcy are considered as laws calculated for the benefit of trade, and founded on the principles of humanity as well as justice." 102 Beawes, Lex Mercatoria Rediviva (6th ed., 1795), 516. 103 4 APC, Col., # 3 5 9 ( 1 7 5 8 ) .

104

4 Term. Rep. 182, 188. Sec 3 Bürge, Commentaries on Colonial and Foreign Laws, 910. 106 PC 2/109/506; PC 2 / 1 1 0 / 5 7 0 , 598. For the "cases" of the parties see Add. MS, 36,219/85-94. At the hearing of this appeal Lord Mansfield expressed himself as follows: "The Statutes of Bankrupts do not extend to the Plantations, Scotland and Ireland. 105

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In Corbin v. Lomax, a 1767 appeal, also from Virginia, the question arose whether the Statute against Fraudulent Conveyances (27 Elizabeth, c. 4) extended to Virginia. 10 ' Lord President Northington declared that the act did not so extend, but counsel Charles Yorke appears to have questioned the soundness of this holding on the ground that Virginia was not colonized until more than twenty years after passage of the statute, which was a useful regulation of property in an infant or an improved colony.108 The question of the extension of the laws of England to the possessions ceded to Great Britain by the Treaty of Paris, in 1763, created great furor in Canada that was only settled by passage of the Quebec Act (14 George III, c. 83). No appeals from Quebec raised this question before the Privy Council, but a 1771 cause from Grenada afforded the Privy Council an opportunity for a definitive pronouncement. Unfortunately, the Committee demonstrated little understanding of the question posed. In the case of Scott v. Brebner and Home an appeal was taken from a September 9, 1767, chancery order by which guardianship of the person and estate of Joanna Victoria Adelaide Herbert (born in British-occupied Martinique) was denied to her mother, a Roman Catholic and former French subject, and her stepfather Michael Scott, a British subject.109 Since refusal was based upon the religion of the mother, the question was presented whether the acts of Parliament disabling Roman Catholics extended to the island of Grenada. 110 By the fourth article of the Treaty of Paris, George III agreed "to grant the liberty of the Catholick religion to the inhabitants of Canada" and that he Would "in consequence, give the most precise and most effectual orders, that " A s voluntary assignees, they are admitted to bring a Suit. In the Suit in the Country where the Statutes don't extend they should be considered in the Same Situation—a doubt arose in Scodand. " T h e Statutes of Bankrupts have no positive force, no relation to them, prevent not a creditor suing the Bankrupt himself if he is in the Country, nor being attached, if by the Laws of the Country he can be attached. "What can the Court of Chancery here do? They could not stop the Creditors here running a race to Scodand, as was determined in Wilson's Case, to get the priority, but they shall not come in under the Commission—and if they do not come in, it is but just they have the priority, tho' they obtained it by running a race. John Pettit the Nephew was intitled in priority in Virginia, notwithstanding the Bankruptcy here" (WO 1 / 4 0 4 / 2 3 ) . Cf. ι Cooke, Bankrupt Laws (4th ed., 1 7 9 9 ) , 3 0 3 - 4 . Wilson's Case, mentioned by Mans-

field, is apparently unreported in the English reports; from the discussion by Lord Loughborough in Sill v. Worswick ( 1 H. Blackstone 665, 6 9 1 - 9 2 ) it appears to have been a cause before Lord Chancellor Hardwicke. For the same case before the Court of Session in Scotland, sub nom. Bradshawe and Ross v. Fairholme ( 1 7 5 5 ) , see 6 Marison, Decisions of the Court of Session ( 1 8 0 2 ) , 4556-59; 5 Brown, Supplement to the Dictionary of the Decisions of the Court of Session ( 1 8 2 6 ) , 2 8 0 86, 8 2 1 - 2 4 ; Kames, Select Deciaons of the Court of Session, IJ$2-68 (1830), 106-7. 107 PC 2 / 1 1 1 / 6 8 6 ; PC 2 / 1 1 2 / 3 1 7 , 356. For the "cases" of the parties see Add. MS, 36,220/117-22. 108 Add. MS, 3 6 , 2 2 0 / 1 1 9 . 108 Case of Appellant (Columbia Univ. L a w Lib.); PC 2 / 1 1 4 / 3 6 3 . 110 For the provisions disabling Roman Catholics from acting as guardians see 3 James I, c. 6, s. 22; 25 Charles II, c. 2, s. 5.

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his new Roman Catholick subjects may profess the worship of their religion according to the rites of the Romish church, as far as the laws of Great Britain permit." By the ninth article the same stipulations were made in favor of the inhabitants of Grenada and the Grenadines. 111 We have seen it stated that in the case of a conquered Christian country its laws remained in force until altered by the King. Thus, in the royal proclamation of October 7, 1763, it was declared that until local assemblies could be established in the ceded possessions "all persons inhabiting in or resorting to our said colonies may confide in our royal protection for the enjoyment of the benefit of the laws of our realm of England." That this proclamation did not extend all the laws of England to the newly acquired dominions is evident from the clause that justice should be administered "according to law and equity, and as near as may be agreeable to the laws of England." 1 1 2 The status of Roman Catholics in the possessions ceded by the Treaty of Paris was not put to the crown law officers until 1765. In a June 10 opinion Norton and De Grey declared that "His Majesty's Roman Catholick subjects residing in the countries, ceded to His Majesty in America, by the definitive Treaty of Paris, are not subject, in those colonies, to the incapacities, disabilities, and penalties, to which Roman Catholicks in this kingdom are subject by the laws thereof." 1 1 3 In a January 8,1768, report to the Committee in which Marriott, the King's Advocate, joined with the crown law officers, it was affirmed that "the several acts of Parliament which impose disabilities and penalties upon the public exercise of the Roman Catholick religion, do not extend to Canada." 1 1 4 Obviously the same held true for Grenada. 1 1 5 A further report (September 5, 1768) of De Grey on several Grenada acts also stated that "the statutes imposing disabilities on Roman Catholics . . . do not extend to His Majesty's new subjects." 1 1 8 In none of these cases is the reasoning apparent by which the conclusion was arrived at—whether the treaty terms were conceived of as limiting the proclamation or whether emphasis was placed upon the word "benefits" in the proclamation. When the case of Scott v. Brebner and Home came before the Lords Committee (Eardley Wilmot, Chief Justice of Common Pleas, was present) not the least acquaintance with the earlier opinions or the reasoning behind them was exhibited. William Samuel Johnson, present at the hearing, noted as the "decision" of the Committee that : 111 ι Doc. Rei. Const. Hilt. Canada, 1 1 5 - 1 8 . For the royal instruction issued in accordance with the treaty provision see 2 Labaree, Royal Instructions, #720. 112 ι Doc. Rei. Const. Hist. Canada, 165. 113 ι ibid., 336. For some discussion of the status of Roman Catholics in England in this period see Mullett, Catholics and the Courts

in England since the Protestant Revolt, 9 Fordham L.R., 38-64. CO 5 / 2 1 6 / 4 1 . 115 See the April 14, 1766, report of Yorke and Dc Grey regarding the civil government of Quebec (1 Doc. Rei. Const. Hist. Canada, 256). » " 5 APC, Col., p. 6.

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The laws against Roman Catholicks arc not executed with that rigour in England that the mother should be deprived of the guardianship of her child, much less should they be so in the ceded islands where it would be contrary to justice and to all sound policy; even a Jewiss has been permitted to be guardian in England, a fortiori a Roman Catholick.117 Accordingly the decree appealed from was reversed, and it was ordered that appellants be appointed guardians on giving security.118 Whether this statement, undoubtedly Wilmot's, is attributable to ignorance of the decided cases concerning the extension of the laws of England or to an interpretation of the 1763 proclamation at variance with that of the crown law officers is not known. 119 Even if Wilmot proceeded on the theory that English colonists carried the laws of England to Grenada after the cession, the statutes in question were in great part "those positive regulations of police, not adapted to the circumstances of a new colony," mentioned by Lord Mansfield in Rex v. Vaughan.120 Certainly the statement was not calculated to heal the political wounds engendered by a 1768 instruction granting Roman Catholics limited participation in the government.121 But for a person who only the previous year had declined the Great Seal and who had expressed impatience with religious disabilities 1 2 2 the reversal was put upon untenable and patently nonlegalistic grounds. Ironically, two years later we find Francis Maseres proudly pointing out that his draft of an act of Parliament for settling the laws of the province of Quebec had been approved by Wilmot, who was presumably regarded as an expert! 1 2 8 STATUTES EXPRESSLY EXTENDING TO PLANTATIONS

We have spoken thus far of English statutes enacted before colonization and the later ones of general purport that failed to mention the plantations. It remains to speak of the general acts in which the colonies were included and those specifically passed for the colonies alone. In the first group are the Acts of Trade; in the second, statutes like the Naval Stores Act, the act restricting 117

Endorsed on Case of Appellant, p. 5. PC 2 / 1 1 5 / 2 9 9 , 339. 119 A tenuous suggestion can be made that Wilmot was aware that Canada had been mistakenly included in the proclamation of 1763 (see Alvord, The Genesis of the Proclamation °f ' 76J, 36 Coll. and Res. Michigan Pioneer and Hist. Soc., 46-51; I Alvord, The Mississippi Valley in British Politics [ 1 9 1 7 ] , 206-10) and that he assumed that the previous Opinions, given in relation to Canada, had been directed toward avoiding the effects of this conclusion. But since the proclamation was certainly designed to promote settlement in Grenada, with protection of the English law as bait, there 118

was no damage in assuming blanket extension of the laws of England to the island, with Roman Catholics protected by the same laxity of law enforcement as in England. 120 4 Burr. 2494, 2500. 121 See Coffin, The Province of Quebec and the Early American Revolution (1896), 44446; 2 Edwards, History, Civil and Commercial, of the British Colonies in the West Indies (1806), 62-64. For the instruction see 1 Labaree, Royal Instructions, #621. 122 See Attorney General v. Downing ( Wilmot 1 ) ; Evans v. Harrison (ibid., 130). 123 ι Doc. Rei. Const. Hist. Canada, 532, note.

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bills of credit, and many others. The judicial activity of the Council in relation to statutes of this type was primarily a matter of interpretation, and is on the whole of very little interest. For example, in Denn v. Herbert, a 1760 appeal from the Nevis Vice-Admiralty Court, it was necessary to determine what constituted an "importation" under the Navigation Acts. The respondent contended that the mere dropping anchor in port was sufficient, but in advising reversal, the determining factor was that bulk was not broken. 124 Again, in the 1762 appeal of Chollett v. Macf^ay from the same island the issue presented was whether foreign gold and silver coins constituted "goods and merchandise" under the Navigation Acts. In advising reversal the Committee accepted the contention that the coins were not goods or merchandise because they were not bullion, but money. 125 Although the problems of interpretation upon appeal were usually of the humdrum sort just mentioned, there was one occasion, which occurred after the Seven Years' War, when the Council settled a rule of great constitutional importance with respect to the Acts of Trade. The island of Dominica, which had been neutralized under the Treaty of Aix-la-Chapelle (1748), was captured by the British in 1761, 1 2 6 and their possession was confirmed by the Treaty of Paris. Whether or not the island had been involved in the contraband trade which flourished during the period of Spanish neutrality, it was charged with the coming of peace that an "avowed constant Open Market and Fair" was there kept. 127 In January, 1764, Captain Thomas Knowler of HMS. Miljord seized certain sugars in a warehouse on shore and on board several vessels lying in the harbor of Roseau. Ships and sugar were taken to Antigua, where Knowler exhibited informations in the Court of Vice-Admiralty for breach of 7 and 8 William III, c. 22, and 6 George II, c. 13 (Molasses Act), alleging landing at Dominica before the entry and that the sugars were landed without warrant signed by a collector. The sugars were the several properties of Anthony Columbier, merchant of London, Joseph and Henry Guignand, also of London, Victor McNelly, merchant of Cork, and William Woodbridge, late of Guadaloupe. In June and July, 1764, sentences of condemnation were pronounced and appeals were taken in all four cases to the King in Council. 128 In the case of the Guignands and McNelly it was averred that the sugars were in payment of cargoes shipped and sold to British merchants in Dominica. In the case of Woodbridge the sugar was alleged to have been im124 PC 2 / 1 0 7 / 1 8 9 , 435, 444. For the "cases" of the parties see Add. MS, 3 6 , 2 1 8 / 7 8 - 8 1 . 126 PC 2 / 1 0 8 / 1 8 5 ; PC 2 / 1 0 9 / 1 2 5 , 167. For the "cases" of the parties see Add. MS, 36,218/133-37.

1

- e 2 Corbett, England in the Seven Years War ( 1 9 1 8 ) , 177-78. 127 MS notes in Add. MS, 36,220/93. 128 See the Cases of Appellants in Add. MS., 36,220/80 et seq.

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ported from Guadeloupe and Martinique in payment of debts due him. Part of Columbiens sugars were shipped in payment of debts due him in the island of Martinique at the time of its evacuation by the British occupying force, and part were for his account in return for a portion of a cargo shipped by Columbier to Dominica and there sold to British merchants to be paid in sugars and other produce under inspection and permission of General Dalrymple and the acting collector and naval officers. The appellants relied first upon instructions left by General Dalrymple for his successor Captain Partridge to the effect that sugars brought from the French Islands "after received for the payment of our Merchants Debts" were to be reshipped without any duty. 1 2 9 In the second place, the sugars allegedly received by appellants in return for cargoes were claimed to be the objects of daily importation and traffic at Dominica. As to these respondent's witness, the collector at Roseau, had testified that he had never heard of any duty other than the inland duty of ι percent being laid upon sugars landed for transfer. 1 3 0 All the sugar had been landed before January 19,1764, on which day Captain Partridge by proclamation had ordered that the proprietors and owners of all sugars then imported into Dominica should give bond at his Majesty's custom house to pay foreign duties at the post from which they should clear, on pain of confiscation. 131 This proclamation, it was claimed, had reference only to future importations. Respondent insisted that all the sugars were French, since no sugar cane was grown in Dominica. All had been landed at Dominica and on the news of Knowler's approach had been reshipped with a view to being cleared out as English sugars without payment of foreign duties, a practice prevalent in the island for some time after it became subject to British dominion. The purpose of the statute 6 George II, c. 13, had been to put the English sugar trade on an equal footing with the foreign, to which end a duty of y . had been imposed. This duty was made payable in ready money by the importer before landing; otherwise the goods were forfeit. Here it was admitted the sugars were foreign, and as the y . duty had not been paid before landing, they were forfeit. If foreign sugars were to be admitted to an entry after they were actually forfeited, the Act of 6 George II would be evaded. Neither Partridge by his proclamation nor his predecessor, "or even the Crown could repeal, qualify ' - " T h e text of the orders (Jan. 3, 1764) appended as an exhibit to the Case of appellant McNelly (ibid., 3 6 , 1 2 0 / 1 0 3 , p. 8). Dalrymple makes the remarkable admission that because of the chicane of the French governor of Guadeloupe in preventing English merchants from getting their "effects" off that island,

"I have opened our Ports, perhaps, more than the Law of Trade permit to facilitate that Operation to them." 130 The deposition is appended to Appellant McNelly's Case (ibid., f. ι ο ί , p. 4). 131

Ibid., f. 104, p. 9.

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or dispense with this Act or authorize an importation contrary to it, or introduce new Duties or relinquish old ones, or admit to a subsequent Entry after a Previous Forfeiture." From Walpole's notes on the hearing before the Lords Committee in December, 1766, 132 it appears that Forrester argued further for the appellants that the laws of a conqueror did not attach upon a conquered country until declared by the conqueror. Consequently the laws in question could not have force in Dominica. It was to be considered in the nature of a neutral island. N o establishment was made there by the Government. The inhabitants could be privy to no constitution but what was published to them. They were subject therefore to such regulations as the governor made, which in this case had been proven. Charles Yorke, who appeared for respondent, asserted that from the moment of conquest the island was "subject to these and other Laws from the Navigation Act which have Words of futurity." There was no necessity of promulgating them. The governor could by no authority prevent the effect of them. The Committee advised affirmance of the sentences, and Lord President Northington (lately Lord Chancellor) expressed himself positively on the extension of the Acts of Trade : This is no question between the Subject and Sovereign but between the foreign Produce and the Produce of the British Colonies. These Laws made for the Encouragement of the British Plantations and relate to the carrying Goods from Plantations not in possession to Plantations in our Possession. All Civil L a w s take place on promulgation in consequence of the King's Instructions—a great many L a w s by statute are so adapted and tied down by the Constitution of the country are not incorporated merely by the Volition of the Crown. But that is not this case. Here the legislature does it by a proper description, they attach immediately; when they talk of a future possession, they take place as soon as the Crown has an actual indisputable Title— N o doubt here that the Goods were imported from Martinique after English in possession of Dominique. These laws are as much promulged on the King's taking possession as if declared publickly— T h e King nor his officers could not say, they would suspend the operation of that L a w .

The affirming Order in Council issued February 13, 1767. 1 3 3 It is hardly necessary to underline the far-reaching constitutional implications of Northington's remarks. They embody a fundamental alteration of the rule about conquest as it was understood up to that time, viz., that the law of 132

WO 1 / 4 0 4 / 6 6 . 4 APC, Col., # 5 9 9 . As to that part of the sentences relating to costs to be paid by claimant 133

to informant, " T h e crown never receives or pays costs" (WO 1 / 4 0 4 / 6 6 ) .

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the conquered territory continued until altered by the crown; indeed, Holt, C. J., had stated explicitly "the laws of England did not take place there [a conquered country] 'till declared so by the conqueror." 134 It may be, of course, that the peculiar situation of Dominica as a so-called "neutral" island with no known jurisprudence may have induced the idea that a mere act of possession was equivalent to a public declaration of the vigor of the English Acts of Trade. The emphasis upon possession was necessary to bring the cases within the words of the Navigation Act ("to his Majesty belonging or in his possession") and the similar phraseology of the Act for Preventing Frauds, 7 and 8 William III, c. 22. This problem had already been before the Council in an administrative way. 1 3 5 In 1759 the Board of Trade had submitted a representation respecting the status of the captured island of Guadeloupe under the capitulation which extended all the privileges of commerce on the same conditions as applied to British subjects.13® This was referred to Attorney General Pratt and Solicitor General Yorke, who, a few weeks earlier, had reported severally that the right of sovereignty had passed by the fact of conquest so that Guadeloupe was "a plantation belonging to his majesty and in his possession" within the meaning of the Navigation Act and consequently subjcct to the same duties as other British plantations.137 Here, as in the Dominica cases, the issue was seen merely as one of squeezing revenue out of captured dominions, and the implications with regard to the lawmaking prerogative of the crown were overlooked. The doctrine of Northington, dispensing as it did with any explicit promulgation by the crown, amounted to a real diminution of this prerogative, and it gained significance from the fact that it was expressed in a judicial proceeding. It is picked up eight years later by Mansfield, C. J., in his opinion in Campbell v. Hall (1774) 1 3 8 in a way that suggests that this great judge regarded it to be settled law: if the K i n g ( a n d w h e n I say the K i n g I always mean the K i n g without the concurrence of Parliament) has a power to alter the old and to introduce new l a w s in a conquered country, this legislation being subordinate, that is subordinate to his authority in Parliament, he cannot make any n e w change contrary to fundamental principles: he cannot exempt an inhabitant f r o m that particular dominion; as for instance f r o m the laws of trade or from the power of Parliament.

Although normally acts of Parliament made for the dominions overseas presented only the pedestrian task of expounding language, there was occasionally an opportunity for the Council, acting judicially, to carry out 1:4

137

135

133

Blankard v. Galdy (Holt K.B. 3 4 1 ) . 4 APC, Col., # 4 0 4 . 130 2 Durand-Molard, Code de la Martinique, 60 (Ait. 2 1 ) .

2 Chalmers, Opinions, 355 et seq. i Cowper 204.

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statutory policy beyond the express letter of the law. Certain instances of this, which we arc about to examine, are rather unusual examples of an effort to grapple with the basic problem a statute had set out to solve, in situations where the act itself could not be applied, and thereby to supply a wholly unanticipated judicial implementation of parliamentary policy. The basic problem was the dismal mess in which the currency of the New England colonies was mired after the peace of Aix-la-Chapelle—a situation for which the crown bore some responsibility, since it had permitted the issuance of bills of credit during the war. In 1751 Parliament intervened by a statute (24 Geo. II, c. 53) which was designed to check the evils of payments by debtors in depreciated New England bills of credit. The act, which among other things provided for calling in certain bills of credit, declared that after September 29, 1751, no paper currency issued for current service of the year or extraordinary emergency of war should be deemed legal tender for private debts and that nothing in the act should be construed to make any bills "now subsisting a legal tender." Some years after this enactment there came before the Committee on appeal a cause from the New Hampshire Superior Court of Judicature—Dering v. Packer (1760)—where on an old contract a difficult problem of valuation was presented. The facts were that to secure a debt arising from various transactions Thomas Packer entered into a penal bond at Boston in 1733/4 conditioned to pay Henry Dering ¿2,640 in "good public bills of credit of the province of Massachusetts Bay, or current lawfull money of New England" with lawful interest within a year. Several payments made during the life of Dering reduced the principal sum to ¿2,123/14/5. Following the death of Henry Dering, Packer, in 1751, tendered executor Thomas Dering ¿2,000 in New Hampshire bills of credit old tenor and ¿200 Connecticut bills of credit as constituting "current lawful money of New England." In 1733/4 these bills had circulated at par with Massachusetts bills of credit, but at the date of tender they had greatly depreciated in value. Executor Dering therefore refused the tender unless allowance was made for depreciation. When this allowance was refused, Dering, in 1757, put the bond in suit in the New Hampshire Inferior Court of Common Pleas, receiving judgment for the penalty of the bond. But this penal sum was chancered down to ¿345/6/9 l/2 New Hampshire bills of credit, new tenor, although Dering contended that ¿3,079/4/5 in lawful money of New England was due. Upon appeal to the Superior Court of Judicature and review therein, judgment was affirmed. 139 130 Case of Appellant, Add. MS, 3 6 , 2 1 8 / 4 4 45. For the proceedings in the Superior Court of Judicature on the writ of review see MS

N.H. Sup. Ct. ]ud. Judgment Book., /755-59, 364-66. For some discussion of the depreciation in New Hampshire see 1 Davis, Currency and

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A n appeal was then taken to the King in Council and entered in November, 1759. 140 Upon the Committee hearing in July, 1760, appellant insisted that the tender was invalid, as consisting of neither Massachusetts bills of credit nor current lawful money of New England. The debt should be measured by one standard, that of silver or the value of Massachusetts bills of credit (which were not depreciated), but in the judgment appealed from there had been no regard shown to the value of the sum conditioned to be paid or to the currency in which judgment was given. By this conduct the debt was reduced to one-fifth of its real value. 141 The respondent, however, contended that at the date of the execution of the bond and of putative payment, old tenor bills of credit of the four New England colonies were considered as "current lawful money of New England." At that time no other medium of currency could have been contemplated but bills of credit old tenor such as had been duly tendered by the respondent.142 The Committee, however, declared that the words "current lawfull money of New England" did not mean bills of credit of any colony, but were used in contradistinction to such meaning, and that the tender made was invalid. 143 From the very terms of the bond it would appear that by the expression "current lawfull money of New England" bills of credit were not intended, for in such case the insertion of "good public bills of credit of the province of Massachusetts Bay" was redundant. The Committee obviously was influenced in its thinking by the statutory refusal to sanction as legal tender any bills of credit, but Jared Ingersoll, present at the hearing, thought that the Committee might be mistaken in its interpretation, "not being acquainted with the currency and understanding of the people in New England." 1 4 4 Obviously the Committee did not choose to treat the matter as a mere problem of contract interpretation where conformity with colonial practice would govern. It preferred to view the case as involving a broader issue of policy, and this attitude undoubtedly strengthened the effect of 24 George II, c. 53, in prohibiting payments in depreciated bills of credit where "current lawfull money of New England" was specified. It is interesting to notice, however, that in ascertaining the quantum of the debt Lord Mansfield turned to the clause allowing payment in Massachusetts Bay bills of credit. Since these bills had been redeemed by virtue of a 1748 Banking in the Province of the MassachusettsBay ( 1 9 0 1 ) , c. xvii; Bullock, Essays on the Monetary History of the United States (1900), 222 et seq.; in Connecticut, see Bronson, Historical Account of the Connecticut Currency, ι Papers New Haven Colony Hist. Soc., 46 et seq.; 1 Davis, ut supra, c. xix.

140 141 142

PC 2 / 1 0 7 / 1 8 9 . Case of Appellant, Add. MS, 36,218/44-45. Case of Respondent, Add. MS, 3 6 , 2 1 8 / 4 6 -

48. 143

144

Ingersoll Papers, 240. Ibid., note.

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provincial act, 145 it was necessary to ascertain the value of these bills for conversion into silver. Upon exposition of the practice in the colonies by Ingersoll, Mansfield declared that as a general rule the value of the bills of credit at the time set by the contract for payment should govern. But in the instant case, since the bond was so long outstanding, the loss by depreciation should be in part divided between the parties. Hence, instead of taking the silver equivalent at the time set for payment, 27 shillings for one ounce, the exchange was fixed at 37 shillings, and the debt was computed accordingly.146 It was thereupon ordered that all the judgments appealed from should be reversed, except the judgment for the penal sum of the bond. But upon payment to respondent, within six months of entry of the Order in Council, of 1187 oz., 14 dwt., 20 grs., of silver together with interest on the principal sum oí ^1,349/11/5 to be computed in silver at the rate of 37 shillings per ounce, respondent was to be relieved against the judgment and penalty of the bond. 147 It was not decided whether by "current lawfull money of New England" was meant sterling, proclamation money, or silver as valued by colonial fiat.148 It was unnecessary to pass on this point, for any of these alternatives would have exceeded the silver equivalent of Massachusetts bills of credit, and accordingly would have been rejected by the debtor under the liberty of the alternative in the bond. Two years later, the Committee heard the appeal of Trecothic\ v. We titworth, in which it rejected an attempt to pay in depreciated New Hampshire currency a debt expressed in the withdrawn Massachusetts bills of credit old tenor. In this case, following a series of dealings, a balance was struck in June, 1749, which left respondent indebted to appellant, a British merchant located in Boston, in the sum of ^5,770/16 Massachusetts bills of credit old tenor. When respondent failed to settle the account, an action was commenced in the New Hampshire Inferior Court of Common Pleas in 1755 to recover that sum, which was averred to be equal to ^577/1/7 sterling. Although respondent proved only a ,£975/18/1/4 payment, leaving a balance of ^4,794/17/10% Massachusetts bills of credit old tenor, the court rendered 145

3 Acts and Res. Prov. Mass. Bay, 430. Ingersoll Papers, 2 4 1 - 4 2 . The account of the hearing in 4 Dallas, U.S. Rep., Appen, xxiii, was probably taken from the Ingersoll Papers which had not been as yet published in 1807. 148

"*i>C 2/107/435. 443! 4 APC, Col., #407. 148

In his discussion of this case Andrews (Current Lawful Money of New England, 24 AHR, 7 6 - 7 7 ) misleadingly confuses the declara-

ration as to the meaning of "current lawfull money of New England" and the commutation of the Massachusetts bills of credit into silver. By this commutation alone it was not "declared that the only 'lawful money' in New England was silver." Andrews fails to mention the interpretation of the Committee of the clause "current lawfull money of New England" {supra, n. 1 4 3 ) .

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j u d g m e n t for a mere ¿1,198/10/6 in N e w Hampshire bills of credit n e w tenor. Both upon appeal to the Superior Court of Judicature and subsequent review in this court, the judgment was affirmed. 1 4 9 A n appeal taken to the Privy Council from the judgment on the writ of review was entered in September, 1758. 150 A t the ex parte hearing of the appeal in March, 1762, it was contended by appellant that in 1749 the rate of exchange between Massachusetts bills of credit old tenor and sterling was ten to one, or as appeared in Dering

v. Packer, that the price of silver was at

sixty shillings per ounce, which was equivalent to a ten to one ratio, taking silver at six shillings an ounce. Appellant prayed that the rule in that cause m i g h t govern in the instant appeal, pointing out the great loss that would otherwise be forced upon a British creditor. 1 5 1 In reversing the judgment below, the Committee advised that respondent pay ¿ 4 7 9 / 9 / 6 sterling, which was equal to ¿ 4 , 7 9 4 / 1 7 / 9 % in Massachusetts bills of credit old tenor, the rate of exchange being fixed at 5 shillings sterling to one ounce of silver, or 50 shillings Massachusetts bills. T h i s was the rate that Massachusetts bills of credit old tenor bore to silver in 1750, when redeemed by legislative enactm e n t . 1 5 2 In both these cases, therefore, the Privy Council set up a hard-money standard that the parties probably never contemplated, but met the realities of the situation by taking a rate of exchange that bore some relation to local practice. THE INTERPRETATION OF COLONIAL STATUTES

O u r consideration of the Privy Council's policy with respect to the application and interpretation of statutes would not be complete without some reference to cases where the Lords Committee was faced with the task of expounding colonial enactments. T h i s was a situation not without its

humor—the

worldlings of Whitehall, some of them with an acquaintance of the law no greater than that acquired as justices of the peace, settling the meaning of acts constructed by the squires, theologians, and hard-bitten attorneys of the American frontier. Many of the difficulties arose from unskillful drafting, a vice from which numerous early provincial acts suffered, and w e think that most of these might well have been forestalled had some effort been spent upon technical defects of draftsmanship in the course of administrative scrutiny of statutes submitted for royal approbation. But this was not the way of the eighteenth century, which saw large sums lavished upon conveyancers for Case of Appellant, Add. MS, 36,218/15153. For the proceedings on the writ of review see MS N.H. Sup. Ct. /ud. Judgment Booh., ; 755-59, 249-50. For New Hampshire bills of credit new tenor, see Bullock, op. cit., 234 et seq.; 1 Davis, op. cit., 326-27. 119

150 151 152

PC 2/106/243. Case of Appellant, Add. MS, 36,218/151-53. PC 2/109/123, 169; 4 APC, Col., # 3 6 1 .

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expertly drawn family settlements, but which submitted without murmur to many an execrably concocted act of Parliament. In this age no Board of Trade would set itself up as schoolmaster in grammar and rhetoric. The reports of the crown law officers, in whom one might expect sensitivity to vague or inept modes of expression, are concerned almost exclusively with the larger questions of policy. On the rare occasions when these speak censoriously of clumsy or ambiguous provisions in colonial acts, the comment is a mere flourish before a coup de grâce. The cases on which we possess the most details regarding the interpretation of colonial statutes were all litigated after the middle of the century. One of the most interesting, because it is one of the unusual instances of a Privy Council case cited as precedent in a provincial court, is Burwell et ux. v. Johnson et ux. (1762), where the meaning of a Virginia act of 1705 was in controversy. This act declared that all negro, mulatto, and Indian slaves "in all courts of judicature and other places . . . shall be held, taken and adjudged to be real estate (and not chattels) and shall descend unto the heirs and widows of persons departing this life, according to the manner and custom of land of inheritance held in fee simple." 1 8 3 The real estate rule, however, was subject to various provisos, since the act stipulated certain circumstances under which slaves were to be deemed chattels, e.g., execution for debts, exemption from escheat in default of heirs, exemption from registration of alienations of realty, and finally for purposes of recovering possession. The peculiar agricultural problems of Virginia were recognized in a section which provided that in cases of intestacy slaves were to be inventoried and appraised. Each child was to receive an equal share of the sum total which the heir at law (to whom the slaves descended) was to pay. On November 18, 1725, one James Bray made a will devising all his lands and slaves to his grandson, another James Bray, in fee tail with remainder in tail to Thomas Bray (the father of grandson James). Shortly thereafter testator died. It is desirable to point out at this juncture that in 1727 there had been enacted a statute to explain and amend the legislation of 1705. 154 The most significant feature of this new act was a section specifically making slaves entailable as annexed to lands entailed, the purpose of this being to preserve slaves to the use and benefit of persons to whom lands might descend or be given or devised, so that estates could be properly improved. James Bray, the grandson, died without issue in 1744. By his will, made in that year, he devised and bequeathed all his estate, both real and personal, to his wife Frances. At the time of his death he was possessor of some slaves 153

3 Honing, Stai, at Large Va., 333.

154

4 ibid., 222.

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which he had received as a part of Frances' marriage settlement, and for this and other reasons there appears to have been some dispute about the estate. Finally the widow, while still sole, executed an agreement with remainderman Thomas Bray by the terms of which certain lands and slaves were allotted her in satisfaction of her dower in the entailed properties. It was not until after Frances had married Lewis Burwell that she obtained enlightenment as to her possible rights under the 1705 statute. Husband and wife brought an action of detinue against Thomas Bray for the entailed slaves. The latter exhibited his bill in chancery and obtained an injunction. Upon Thomas' death, the detinue action having thereby abated, Burwell and wife, in October, 1751, brought a bill in chancery against Philip Johnson and his wife Elizabeth (daughter and heir of Thomas Bray) to compel delivery of the slaves, on the ground that under the act of 1705 slaves could not be entailed. This bill was dismissed by the General Court in April, ΐ758. 1 β β A n appeal to the King in Council was entered in April of the following year. 1 5 6 The appeal was argued in March, 1762. Yorke and Pratt, who appeared for appellants, contended that the act of 1705 only made slaves realty for certain purposes and required that they should always descend in fee simple. This had been done because there were no fines, recoveries, acknowledged deeds, or other methods in Virginia to bar entails, but solely acts of assembly, a very expensive process. Any other legislative course would have been ruinous to a man who might need to sell a slave because of pressing necessity. It was also asserted that the later act of 1727 could not have retrospective force. A devise made before that act limiting an estate tail in negroes "must be construed as vesting the whole Ownership on which no Remainder can be limited unless it be restrained to take Effect within a particular Time or within the Compass of a Life or Lives in being as in case of Personal Property, or of estates granted or devised in Fee on which a Remainder in Fee cannot be limited." 1 5 7 De Grey and Forrester for respondents, by carefully ignoring the words "fee simple" in the 1705 act and concentrating upon the words "land of inheritance," insisted slaves could be disposed of by deed or devise like any real estate and consequently could be entailed, which was agreeable to the usage of the several American plantations. The words of the will were sufficient to create an estate tail in James and a remainder over in Thomas Bray. They put nothing on the act of 1727, which they conceded did not "affect the present case ex post facto." The intent of this act was to create a distinction between 155

Case of Appellant, Add. MS, 3 6 , 2 1 8 / 1 3 8 -

41. 15e

157

4'·

PC 2/106/487.

Case of Appellant, Add. MS, 3 6 , 2 1 8 / 1 3 8 -

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T H E PRIVY COUNCIL AND ENGLISH LAW

cases in which slaves were disposed of by themselves and those in which they were disposed of together with lands. In the instant case the devise had been, not of slaves alone, but of slaves together with land to the same uses. This the later act had declared to be the true policy and intent of the 1705 statute. Consequently the 1727 statute could never be construed to defeat the devise; rather did it confirm and establish it. 1 5 8 Although appellants' argument was built around a sort of "plain meaning" interpretation, it is apparent that even by such a test the act of 1705 could hardly be strained to cover devolution by devise. The Lords Committee, in advising affirmance, rejected this strained construction in favor of the obvious statutory intent. 1 5 9 N o notes of the Committee's opinion appear to have been made, but six years later Burwell v. Johnson is referred to by counsel on each side in a cause which came before the Virginia General Court. Blackwell

v. Wilkinson

in-

volved the question whether an entail of slaves not annexed to land and made between the years 1705 and 1727 was good. 1 6 0 Attorney General Randolph, for the plaintiff, asserted that in Burwell's

case "the circumstance of the slaves

being annexed to lands was, as I can say from good authority, never taken into consideration in England; they were considered as if they had been entailed separately; and it was expressly declared that the Act of 1727 should not be retrospective." George Wythe, for defendant, came up with a different version: Burwell and Johnson is cited against us, because slaves were there adjudged to be entailable under the Act of 1705. But in that case lands were devised in the same clause and by the same words with slaves, and it was always held that things annexed to lands might be entailed, as charters, covenants to warrant, etc. But moreover, the thirteenth clause of the Act of 1727 confirms the annexations of slaves to land before that Act. Wythe's version of the Privy Council's determination is probably the correct one, since it is the substance of the winning argument, but neither he nor Randolph had a really manageable citation. Indeed, the uncertainties of counsel regarding the exact grounds on which the appeal was decided is a pointed example of how the possible function of the Privy Council as a molder of legal doctrine was frustrated by the failure of adequate reporting. Shortly after Burwell v. Johnson, another Virginia statute was up before the Council Board. In Tabb et al. v. Edmundson

et al. (1763) the event of the ap-

peal depended upon interpretation of a 1705 act for the distribution of intestate estates. This statute provided that if after the death of a father, any of his 158

43·

Cast of Respondent, Add. MS, 3 6 , 2 1 8 / 1 4 1 -

159 180

PC 2 / 1 0 9 / 1 3 0 , 168. Jefferson, Reports, 73.

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507

children should die intestate without wife or children, in the lifetime of the mother, every brother and sister and their representatives should have an equal share with the mother; and if all the children should die intestate, without wife or children, in the lifetime of the mother, then the portion of the child so dying last should be equally divided, one moiety to the mother, and the other moiety to the next of kindred by the father. 161 In the instant case William Allaman, the father, died intestate in 1732. When the surviving child Sarah died intestate in 1741, the mother had remarried with one John Tabb and had issue the appellants, Humphrey Toy and Martha. Upon the death of Sarah, the slaves which constituted the subject matter of the appeal became chattels to prevent an escheat (pursuant to a 1705 act), and were taken into possession by the mother and her second husband, presumably by virtue of the first clause of the above act—including children of the half-blood in "every brother and sister." In 1753 the respondents, children of "the next of kindred by the father," filed a bill in chancery to compel appellants to account for one-half the slaves of intestate Sarah, the bill being predicated upon death of "all the children" under the statute. In April, 1758, the General Court decreed that the respondents were entitled to one-fourth of the slaves of which Sarah died seised and one-fourth of their increase and profits since her death. A final decree was made upon the return of commissioners in October, ι758.1β2

From these decrees an appeal was taken by the Tabbs, while a cross-appeal was also entered with conciliar consent by the Edmundsons. 1 ® 3 At the Cockpit hearing the appellants mainly insisted that the true intent and meaning of the 1705 act was that the next of kindred by the father should not be entitled, except in the event of the intestate dying without leaving any brother and sister. But in the instant case the appellants were brother and sister of the half-blood to the intestate Sarah and were living at her death.184 The respondents urged that no rule could be drawn for governing the instant case from the practice in England of letting in the half-blood under 22 and 23 Charles II, c. io, and 1 James II, c. 17. The Virginia enactment went much further than the English statutes in its emphasis upon the father of the intestate. In the face of such emphasis it could never have been intended to let in brothers and sisters by the mother to the exclusion of the father's own kindred. 165 Lord Mansfield, however, rejected any distinction between the colo161

3 Hemng, Stat, at Large Va,, 3 7 1 , 3 7 2 . C:se of Appellant, Add. MS, 3 6 , 2 1 8 / 2 4 8 49. For the act preventing escheat sec 3 Hcning, Stat, tt Large Va., 3 3 3 . 103 PC 2 / 1 0 7 / 2 5 6 , 3 1 0 , 3 3 0 , 3 4 7 , 3 9 9 ; PC 2/109/203. 102

161

Case of Appellant, Add.

MS,

36,218/248-

49165

5».

Case of Respondent, Add. MS, 3 6 , 2 1 8 / 2 5 0 -

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nial and the English statutes, declaring that children by the half-blood should be let in following English practice.1®8 Accordingly, both judgments were reversed, the respondents were ordered to make restitution, and the cross-appeal was dismissed.187 A problem of a different order was presented in Bedford v. Jeaf^e, a 1765 appeal from Jamaica, when the Committee had to decide between conflicting interpretations of several Jamaica acts for the more effective recovery of quitrents. In 1684 Sir Thomas Lynch died seised in fee of lands in St. Mary's parish in Jamaica, the lands descending to his daughter Philadelphia. In 1717 this daughter contracted a second marriage with one Thomas King; by the marriage settlement the above lands were conveyed to trustees for the use of Thomas for life; remainder to Philadelphia for life; remainder to the issue of the marriage. This settlement was revoked in 1721; by a new settlement in the following year the lands were conveyed to trustees to the use of Thomas for life; remainder to Philadelphia for life; remainder to Thomas in fee simple. When Thomas died, in 1736, he devised the lands in fee simple to his widow. In November, 1754, Philadelphia and William Beckford entered into articles for sale of the lands, but before the purchase was completed Philadelphia died and the lands descended to her son and heir, Sir Lynch Salisbury Cotton (a child by her first marriage). In April, 1759, Cotton conveyed to Beckford all the lands of which Philadelphia had been seised in the island of Jamaica. 188 Meanwhile in August, 1754, an information had been brought by the Attorney General in the Supreme Court of Jamaica at the procurement of Samuel Jeake for forfeiture of the lands in question under a 1733 act which supplemented earlier statutes of 1695 and 1703. By these acts forfeiture of the lands of absentee "owners and possessors" without effects in the island subject to distraint was provided upon information proceedings in case of nonpayment of quit-rents. Such judgment of forfeiture was to be a "perpetual bar against any former patent, grant, or claim whatsoever." 1 6 9 The information related that the lands in question were vested in the heirs or other representatives of Sir Thomas Lynch, that such heir or other representative was an absentee without effects subject to distraint, that no payment had been made of the quit-rents reserved to the crown on the lands, and prayed judgment of forfeiture. Following the proclamation of the lands at three courts, the Supreme Court gave judgment of forfeiture for the crown in February, 1755. Following 1ββ Endorsed on Case of Appellant, Add. MS, 36,218/249. ier PC 2 / 1 1 0 / 1 7 2 , 1 9 2 . Compare the opinion in 2 Va. Col. Dec., Barradall's Rep., B 3 1 - B 3 2 .

108

Case of Appellant, Add.

MS,

36,219/168-

73lee F o r copies of the acts see the Appendix to the Case of Appellant, ibid., 1 7 4 - 7 5 .

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statutory provision the land was regranted to informant Jeake in the following year. 170 Beckford having completed purchase of the lands from Cotton brought an action of trespass and ejectment against Jeake for recovery of the lands in the Supreme Court in February, 1761. To the declaration defendant pleaded the previous judgment on the information and the subsequent grant made to defendant. In his replication plaintiff averred inter alia that at the time of the information and subsequently the lands were not vested in the "heirs or other representatives" of Sir Thomas Lynch. To the replication defendant demurred, and upon joinder in the demurrer the Supreme Court gave judgment for plaintiff Beckford.171 The rationale of this judgment was that the judgment on the information did not conclude the heirs or grantees of Thomas King, the owners of the land by tide on record at the time of the information. The acts only mentioned the owners and possessors of land at the time of forfeiture and not representatives of former owners, and a penal law tending to disenfranchise proprietors of land should not be construed to extend beyond its letter.172 170 Case of Appellant, ibid., 168-73; Case of Respondent, ibid., 1 7 7 - 8 3 . 171 Case of Appellant, ibid., 168-73. 172 Among the Hardwicke Papers (ibid., 193) is a statement that "on the tryal of the Ejectment, Doe on the Demise of Beckford against Jeake. The Supreme Court of Judicature gave Judgment for the Plaintiff for this single reason, that the Information, upon which the Defendants claim was founded being brought for the Lands in question as vested in the Heirs or other Representatives of Sir Thomas Lynch, the Judgment thereon could not conclude the Heirs or Grantees of Thomas King, who were plainly the Owners of the Land by title upon Record at the time of bringing the Information; That though it had been objected that the term Representatives used in the Information concluded the Devisee of Thomas King and his Grantee ratione tenurx, yet the Act of the Legislature mentioned only the Owners and possessors of Land at the time of forfeiture, and not Representatives of former Owners, and they neither would nor could extend the construction of a penal Law tending to disfranchise Proprietors of Land beyond the Letter of the Law, nor could it be within the Spirit or intention of the Law to suffer such construction, for the intent of the Proclamation was to give notice not only of the Land but the Owner, and if the construction contended for was admitted, the greatest

frauds might be practised, and any Gentleman in the Island might be stripped of his Estate by an Information brought against the original Patentee or some early Grantee whose name and family might be buried in oblivion upon a suggestion that the Quit rents were not yet paid, nor would it be consonant with Law or common justice to tell such owner he was the representative ratione tenurx, or to drive him to expensive litigations to avoid a judgment and patent founded on such an information. It was say'd on the other side, that at the time of filing the information the heir of Sir Thomas Lynch and the dev isee of Thomas King was, as appears by the pleadings, identically the same person vizt. Lady Philadelphia Cotton, and therefore being impleaded as heir by the information she could now traverse it by setting up a right as Devisee of Thomas King, but this is begging the question, for she is not impleaded by name as heir, but is only concluded by the judgment as heir, and it would be a new doctrine to say that a verdict or Judgment should operate as an Estoppell from claiming or should bind the heir further than as heir of him to whom the estoppell was; It was also insisted that the judgment upon the information ought to be binding on her in every right, as she had notice as appears by the record in the liberty given her to traverse; but it is well known from the practice of the Court that those suggestions are entered on the roll at the

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From this judgment Jeake took a writ of error to the Court of Errors, where judgment was reversed in November, 1763. 173 The reversal was grounded upon the opinion that the acts made judgments upon informations conclusive generally without confinement to parties or privies. 174 From this judgment an appeal was taken to the King in Council and entered in July, 1764. 175 Upon argument before the Committee the appellant insisted that the information could operate only as an estoppel against the claims of persons as heirs of Sir Thomas Lynch; that at the time of the information the lands were vested in Thomas King and his devisee; and that appellant claiming under such devise was not estopped from an ejectment action.176 Respondent, however, contended that the judgment upon the information could not be set aside upon a collateral action. Further, Philadelphia King, who succeeded to the lands as heir of Sir Thomas Lynch and was possessed thereof at the time of the information was sufficiently described in the information, so that the judgment thereon was a perpetual bar to her right and to the derivative right of appellant.177 Following argument, Lord Mansfield in delivering the opinion of the Committee upheld the contentions of the respondent. The Jamaica acts were to be considered, not as penal laws, but as beneficial and remedial acts. The informations were proceedings in rem, and it might have been more correct to have called upon the heir or assignee of Sir Thomas Lynch, but the information contained a sufficient description. If it were necessary to describe and ascertain the owner, it would be within the power of such owner by secret conveyances to prevent such description and ascertainment. Since this was a proceeding by proclamations in rem, the court ought to allow the claimants to come in after judgment, but the same parties could not controvert the judgment in a collateral action.178 Therefore, it was advised that the judginstance of any bystander, and if the construction should be made that it amounted to an appearance of the party and conclude him, it would open the door to informers themselves to cause the entry to be made to strengthen a fraudulent or deceitful information, and as to what had been said and strongly relied on, that the Acts make a judgment upon an information a bar to all former patents grants and claims whatsoever, that can be only construed to operate against parties and privies, and to this information Sir Thomas Lynch and his heirs were the only parties or privies and the devisee of Thomas King could not be bound, and if the contrary construction had been intended by the legislature, or could legally be made, the acts with respect to the proclamations

would have followed the mode of the English laws respecting fines which give a term of years to all but parties and privies to claim, therefore the Court gave judgment for the plaintiff unanimously." 173 Case of Appellant, ibid., 168-73. 174 Ibid., 193. 175 PC 2 / 1 1 0 / 5 0 9 . 176 Case of Appellant, Add. MS, 36,219/16873· 177 Case of Respondent, ibid., 177-83. 178 Lord Mansfield declared that "the Appellants title was derived by mesne conveyances from Sir Thos. Lynch, who was on all hands agreed to have been seized in 1684, and it must be presumed he was so seized by Grant from the Crown, and upon payment of certain quit

T H E PRIVY COUNCIL A N D ENGLISH L A W

511

ment of the Court of Errors be affirmed and it was so ordered, 17 * leaving Jeake in possession of the land in dispute. One of the problems with which the legislature of Virginia had to cope related to the disposal of entailed lands, the soil of which had become exhausted and which were no longer of profit to the tenant in possession, let alone to those in whom a future interest was vested. Although in some colonies, the common law recovery was used (e.g., N e w York) rents, otherwise no such Information could have been brought, and therefore he should not dwell upon the objection made by the appellants council with respect to the Defect in the information in not precisely charging that the lands in question were in grant from the Crown and liable to quit rents; that the appellant setting up this tide the respondent in bar says Ί have a possessory tide under the acts of Assembly of this island; I have proceeded according to the directions of those acts, proclamations have been made, you did not come in, I have obtained letters patent which are a bar.' That 2 things appeared very clearly upon the proceedings however the facts might be, ist. that Lady Cotton had nothing in the island to distrain upon for the arrears of the quit rents due for those lands. 2dly. that no quit rents had been paid since Sir Thos. Lynch's death, for the information states that no quit rents had ever been paid, that it appeared too from the proceedings that the appellant had nothing to do with the lands at the time of the judgment, it did not even appear, that he held them as tenant at will or otherwise; all that is shewn is, that he had a covenant from Lady Cotton to sell, but no legal estate or right whatsoever; then comes the principal question, whether the respondent's judgment is not conclusive in this collateral action Ρ His Lordship says he should not consider those acts of Assembly as penal laws, but as beneficial and remedial ones, made against persons who owned uncultivated lands in the island, and would neither cultivate them themselves nor suffer others to do it. If in 1754 quit rent for such lands were unpaid from 1685 and no Cultivation of the lands had ever been, very right it was they should got into other hands who would and were bound to cultivate them. That these informations are a Proceeding in Rem and suppose the person intitled an Absentee & not amenable to the proccss of the island the informer can't come into the Court for lands, but when quit rents are due, and are due upon a Grant from the

180

or this de-

Crown and therefore his Lordship could by no means think the information irregular, for the acts of Assembly suppose no occupier, and (he party claiming out of the island. It is therefore a contradiction to call it a proceeding contra totum Mundum—There may a Haeres nati and a Haeres facti, it would have been more correct to have called upon the heir or assignee of Sir Thos. Lynch, than his heir or other representative; the assignee of the land is the heir; the information contains a sufficient description; if it were necessary to describe and ascertain the owner, how is it to be known it would be in the power of the owner, by secret conveyances and methods totally to prevent it This is a specifick action and judgment respecting the thing and the Court had competent jurisdiction. If the judgment was a nullity it might have been objected to in that court where it was obtained, and the matter examined and set right there. There is no doubt but that this being a proceeding by Proclamations in rem the Court ought to allow every person claiming either as Assignee or in any other Right to come in after they have knowledge of the judgment but there is no case where the same partys or persons claiming under the right of the same partys, can controvert a judgment of a Court in a collateral action for an error in that judgment but they can controvert it in the same court, and in the same suit, if they come in due time, and the assignee of Sir Thos. Lynch may come in still, if he has not been guilty of latches and might always have contested this judgment in a summary way" (ibid., 199-200). Compare the variant version of the opinion in WO 1/404/5657· 179

PC 2 / 1 1 1 / 2 8 5 , 304· For opinions as to how the appellants could assert their rights in accordance with this judgment see Add. MS, 36,219/203-9. 180 See the references in Goebel, Cases and Materials on the Development of Legal Institutions (1946 ed.), 532, 534.

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vice had been introduced by statute (e.g., Pennsylvania), 181 the Virginians sought their own solution. In 1734 it was there enacted that tenants in tail could dock the entail of separate parcels of land if upon inquisition or a writ of ad quod damnum a particular parcel was found not to exceed ¿200 sterling in value. It was further provided that deeds conveying lands, following a return that the land did not exceed ¿200, should be acknowledged before the General Court. 182 In Howlett v. Osburn, a 1765 appeal from Virginia, the Lords Committee undertook to interpret this act and to pass upon the effect of a later (1749) provincial statute which was unconfirmed by the crown at the time the action in this cause was begun. Here a first writ ad quod damnum had issued in October, 1736, and the premises in question had been valued at ¿220. But in the following July upon a second writ the land was returned as valued at ^150. The entail was accordingly docked, and a conveyance was made. The deed was only acknowledged before a county court. But the 1749 act was retroactive and made valid all deeds acknowledged before such county courts. The question presented upon appeal was whether or not the entail had been lawfully docked and a valid conveyance made as a consequence of the second writ. 183 Appellant contended that an unsuccessful attempt to dock the entail was no bar to further attempts. Respondent was disposed to regard the first inquisition as conclusive as if it were a finding of law, but failed to press the obvious point of policy that appellant's interpretation would permit a continuous stream of writs until a satisfactory return was found. Respondent argued further that the act of 1749 was of no force until confirmed by the King in Council. Both of respondent's contentions were rejected by the Committee, and the appellant's view of the cause was sustained.184 This case is of interest, for it exhibits an unexpected liberality toward a method of docking entails that was alien to domestic jurisprudence. Of no less interest are the words of Lord Mansfield on the matter of the vigor of colonial acts : They all take force from passing there. The King's Disapprobation is only of force from the time it is signified in the Colony—it's a Law there 'till then. The King's Approbation need not be notified—because it takes effect of course. They can't find usage contrary to positive law. The Inquisition is not traversable.185

Our final example of the attitude toward colonial acts relates to a Rhode Island statute of 1714/5 for the registration of deeds and conveyances. For "the preventing clandestine and uncertain Sale of Houses and Land" it was pro181

1S4

1,2

135

4 APC, Col., p. 1 1 6 . 4 Hening, Stat, at Large Va., 397, 400. 183 See the "cases" of the parties, Add. MS, 36,219/273-78.

PC 2 / 1 1 1 / 3 0 0 , 307. WO 1/404/58.

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513

vided that all deeds and conveyances of houses and lands within the colony, signed and sealed by the grantor, acknowledged before any Assistant or Justice of the Peace, and recorded in the registry of the town where such premises lay within the space of six months from the date of conveyance, should be valid without any further act or ceremony. No bargain, sale, mortgage or other conveyance should be good to hold the lands against any person other than the grantor or his heir unless the deeds were so acknowledged and recorded.186 The careless draftsmen of the act made no provision for the case in which two conveyances were made of the same property, but the deeds were registered in the reverse order of their granting. One David Thayer, in January, 1763, being indebted to Robert and Ellis Lewis, merchants of Philadelphia, in the sum of ¿700 (Philadelphia money), as security for payment executed a deed poll by which he conveyed the fee of a certain Rhode Island farm to his creditors, with the proviso that if the amount due was paid within a year the deed was to be delivered up, or if recorded, the Lewises were to reconvey. The latter failed to record this crude mortgage until May 31, 1763. In the meantime, Thayer, in April of that year, by a bargain and sale deed conveyed the same premises in fee simple to Benjamin Wilkinson of Gloucester, R.I. This instrument was recorded on April 26, 1763, and Wilkinson entered upon possession. The Lewises brought an action of trespass and ejectment against Wilkinson in the Providence Court of Common Pleas in May, 1764. After the cause was brought to issue, defendant examined witnesses ex parte without notice to plaintiff, and on this alone the issue was committed to a jury, which returned a verdict for defendant. Plaintiffs took an appeal to the Superior Court (September, 1764), where witnesses for both sides were examined and where the jury reversed the earlier verdict. Wilkinson then sued out a writ of review returnable at the March, 1765, term of the same Superior Court. Further evidence was there presented, and the jury to which the issue was committed reversed the earlier Superior Court judgment and found for the original defendant Wilkinson. The Lewises appealed to the King in Council, and as usual in a Rhode Island case, a précis of the evidence went up. Apart from argument as to whether appellants were chargeable with fraud (since there was some proof to indicate their agent was aware of negotiations with Wilkinson and hoped thereby to collect the debt owing), it was claimed on the one hand that the Rhode Island act did not require instantaneous recording of deeds and that the deed of January, 1763, since it had in fact been recorded, gave a good title.187 On the isr

· Ads

and Laws

R.Ì.

( 1 7 4 5 ) , 50.

187

30.

Case of Appellant, Add.

MS,

36,220/137-

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other side, it was insisted that the only legal way of giving notice to a purchaser of incumbrances was by registration, which had not here been timely done. 188 T h e Committee, considering obviously the purpose of the Rhode Island act to put a stop to clandestine real estate transactions, accepted respondent's view of the act and advised affirmance. 189 STATUTES RELATING TO ADMIRALTY

JURISDICTION

W e have reserved for particular consideration the problems relating to the admiralty jurisdiction, not merely because of the peculiar status of these courts in the scheme for enforcement of the mercantile policy of the British government, but because this status and the revival overseas of the conflicts with common law courts raised problems respecting statutory application that were on a somewhat different footing from questions like the extension of the Statute of Frauds. T h e statutes designed to settle the limits of admiralty jurisdiction were some of them of great antiquity, and since the seventeenth century had witnessed a bitter feud between this jurisdiction and the common law courts, there was a predisposition to favor the extension of acts of Parliament which had the purpose of preventing rivalries between the law-enforcing agencies. O n the other hand the colonial vice-admiralty jurisdiction had its chief raison d'être in the Acts of Trade. T h e colonists, particularly in the chartered and proprietary colonies, were hostile to the jurisdiction of the viceadmiralty courts. This hostility was abetted by the confused jurisdictional provisions of the Navigation Acts. T h e question thus posed concerned the method of relief which should be employed to prevent interference with the jurisdiction of the vice-admiralty courts by the common law assumption of jurisdiction by prohibition or otherwise. When the Massachusetts common law courts usurped jurisdiction over a drift whale, Sir John Cooke, in 1706/7, advised an appeal as proper to delimit jurisdiction, or a royal direction, if thought more effectual. 190 In a November, 1716, opinion Sir Henry Penrice, judge of the H i g h Court of Admiralty, also advised an appeal to solve jurisdictional assertions. 191 T h e first extended discussion of the relief available in the case of interference with admiralty jurisdiction by issuance of prohibitions is found in a 1720 opinion of Richard West. West upheld the right of the common law courts to issue prohibitions in cases where the admiralty courts exceeded their jurisdiction, for he believed the English statutes limiting the admiralty jurisdiction were in force in the plantations. West pointed out that if the right to issue pro1 8 8 Case of Respondent (Columbia Univ. Law Library).

189

PC 2/112/3". 357·

190 191

CSP, Col., 1706-8, # 6 9 , 815. Adm. 1/3669/45-46.

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515

hibitions were denied, the benefit of the common law would be denied to those lacking wealth sufficient to support an appeal to Great Britain. Even in such cases, however, the appeal would lie only to the High Court of Admiralty—an absurd remedy. On the other hand, in cases where a prohibition was wrongly issued, an adequate remedy was present in an appeal to the King in Council, from whom both jurisdictions flowed.192 Jeremiah Dummer argued that the liberty of an appeal was no reason to deny prohibitory power, citing as precedent the English situation. He further agreed with West that appeal to the High Court of Admiralty was an illusory remedy, courts rarely displaying forwardness in limiting their own jurisdiction.193 In August, 1726, Attorney General Yorke informed the Commissioners of the Admiralty that to avoid prohibitions from common law courts immediate application ought to be made to such courts to grant consultations. If a consultation were refused, the prosecutor ought to appeal to the King in Council. 194 But little immediate use was made of this method of relief from prohibitions. In July, 1726, Collector of the Customs Robinson prayed for appeals from the issuance of prohibitions by the Superior Court of Judicature of Massachusetts in the case of vice-admiralty court proceedings against the Esther and the Mary Ann.195 The basis of the prohibition issuance was the extension of 15 Richard II, c. 3, to the province.196 However, these doleances were never acted upon. In September, 1728, a prohibition issued in Norton v. ]e\yll upon the same basis, but the Superior Court did not see sufficient cause to grant an appeal.197 No conciliar doleance, however, was offered in this case. Later, in the province of New York an appeal was prosecuted from the issuance of a prohibition against vice-admiralty court proceedings in a seizure under the Navigation Acts, but upon appeal the common law jurisdiction was confirmed. In August, 1739, Archibald Kennedy, Collector of the Customs at New York, seized the sloop Mary and Margaret for importation of commodities of non-British origin not shipped from Great Britain, under 15 Charles II, c. 7, and 6 George II, c. 13. 1 9 8 Upon subsequent libel in the New York Vice-Admiralty Court in September, owner Thomas Fowles, in a plea to the jurisdiction, alleged that the seizure having been made within the body and city of New York the Vice-Admiralty Court lacked jurisdiction.199 192

2 Chalmers, Opinions, 2 0 8 - 1 1 ; CSP, Col., 1719-20, #52. ls3 A Defense of the New-England Charters (1765 reprint), 62-63. 194 Adm. 1 / 3 6 7 2 / 9 . For the attitude of the Commissioners of the Customs on this "bad opinion" see 52 MS Mass. Archives (Letters, 1724-38), 320. 195 PC 2/89/257. For the vice-admiralty

court condemnations see MS Mass. Ct. of Adm. Ree., 1718-26, 210, 2 1 2 (December 22, 1 7 2 5 ) . 196 The prohibitions were made final in February, 1725/6 (MS Mass. Sup. Ct. Jud. fudgment Book,, 1725-29, 66-67). 197 Ibid., 184. 198 NYHR Parch., 2 2 5 - D - 1 . 199 Ibid. For copies of the libel and plea to the jurisdiction see fames Alexander MSS, Box 45.

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When this plea was overruled, 200 Fowles then moved the Supreme Court in the October term for a prohibition which issued in November. 2 0 1 In the January, 1739/40, term James Alexander, counsel for Kennedy, moved and had a rule by the Supreme Court for Fowles to declare in a month or a consultation to issue. 202 In his "declaration in prohibition" Fowles alleged that the seizure was made within the body of the city and county of New York and that therefore under 13 Richard II, c. 5, 15 Richard II, c. 3, and 2 Henry IV, c. i l , the Vice-Admiralty Court had no jurisdiction. Upon demurrer thereto and joinder in the demurrer, a writ of consultation was denied in January, 1739/40. 203 The effect of the refusal of the consultation was to make the prohibition absolute so that further proceedings, if any, would take place in the common law courts. The Supreme Court, giving reasons for its judgment, stated that by the language of 15 Charles II, c. 7, forfeitures were to be sued for "in any of his Majesty's courts" in the colony. This meant courts of record, which admiralty courts were not. T o the contention that the phrase included the Court of Admiralty (this court being called the "King's court" in many statutes), it was observed that in such statutes it was termed the "King's Court of Admiralty," to distinguish it from foreign admiralty courts, and that the addition "of Admiralty" showed the distinction. Further, the presence in the statute of the words "essoin, protection, or wager of law" were applicable only to suits in courts of record. As to 7 and 8 William III, c. 22, this statute gave no cognizance to admiralty courts in this matter. On the contrary, it rather indicated that prosecutions were to be brought in courts of record by leaving the choice of venue to the prosecuting officers and by the mention of juries. As to the pretense that this forfeiture was not disposed of by that act and so expressly suable for in the plantation courts of admiralty, it was replied that this forfeiture was not one imposed by 7 and 8 William III, c. 22. 204 From the Supreme Court judgment Kennedy appealed to the Governor and Council, where the judgment appealed from was affirmed on, April 18, 1741. Counsel James Alexander moved for an appeal to the King in Council, which was granted upon giving ,£100 security to answer costs of the appeal. 205 2 0 0 For the proceedings in the vice-admiralty court see ι MS Mins. Vice-Adm. Ct. Prov. N.Y., 77/5—46, 104—5, 106-9. 201 NY HR Parch., 2 2 5 - D - 1 ; James Alexander MS Register of Cases, N.Y. Supreme Ct., 1721-42, 42 (NYHS). For a copy of the plea in bar and of the suggestion see James Alexander MSS, Box 45. 202 James Alexander MS Register of Cases, N.Y. Supreme Ct., 1721-42, 42 (NYHS). 203 NYHR Parch., 225-D-1 ; James Alexander MSS, Box 45. Kennedy demurred on the

grounds that: ( i ) it did not appear by the declaration by whom or by what power the colony was divided into counties; (2) it did not appear that the plea to the jurisdiction in the admiralty court was on oath or sworn to in court; (3) it was not set forth in the declaration that the importation was upon land or anywhere out of the admiralty jurisdiction; nor was any time and place set forth when and where the importation was made. 204 James Alexander MSS, Box 45. 2 0 5 19 MS Mins. N.Y. Council, 8 1 , 98, 102

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517

The petition and appeal was referred to the Committee in March, ΐ74ΐ/2. 20β Before the Committee, counsel Ryder and Forrester for appellant argued that the general jurisdiction of the admiralty courts in the plantations had been altered by several acts of Parliament to give general cognizance to forfeitures under the Navigation Acts. This jurisdiction extended to cases not cognizable in the English admiralty courts in order to remedy the want of a Court of Exchequer; the restraining statutes relied upon by respondent were only intended to restrain encroachments on the common law jurisdiction in England. Any deprivation of the colonial admiralty courts of this jurisdiction would be fatal to enforcement of the Navigation Acts. As to the language of 15 Charles II, c. 7, it was argued that the juxtaposition of suits "in any of his Majesty's courts" in the plantations or "in any Court of Record in England" indicated the former category to be more inclusive than the latter. The "essoin, protection, or wager of law" clause was confined to the latter alternative clause. Since by subsequent act (23 Charles II, c. 26) admiralty courts in the plantations were empowered to judge forfeitures, the general words of the present act should be construed in the same sense and in conformity to subsequent practice.207 However, the Committee advised affirmance as was accordingly ordered on March 23, 1742/3. 208 Presumably the rationale of affirmance was that the clause "in any of his Majesty's courts" of 15 Charles II, c. 7, did not include plantation vice-admiralty courts. Some years later, in the 1763 appeal of Hearn v. Gapper and Young, the question was raised whether the Newfoundland Vice-Admiralty Court was included within the meaning of the phrase "in any of his Majesty's courts" of 15 Charles II, c. 7, s. 6. Appellant relied upon the precedent of Kennedy v. (volume in reverse). For the assignment of errors and respondent's plea of in nullo erratum est, see fames Alexander MSS, Box 45. James Alexander, for appellant, urged that the place of seizure was irrelevant. Respondent's argument was equivalent to saying that where a felony was committed at Albany and the felon taken in New York, the prisoner must be tried in the latter place. The language of 15 Charles II, c. 7, only required suit "in any of his Majesty's courts," which included the admiralty court. No record remains of co-counsel Joseph Murray's argument. William Smith, Sr., counsel for respondent, argued that the clause "in any of his Majesty's courts" meant only common law courts as appeared from the essoin, etc. clause and the mention of juries in 7 and 8 William III, c. 22. Further, the admiralty court was always referred to as the "King's

Court of Admiralty." No part of the colony being outside the jurisdiction of the Supreme Court, an act of Parliament was necessary to give the Admiralty jurisdiction therein, citing Hobart 79. No act having been shown to give jurisdiction within the body of the county, the admiralty court possessed no jurisdiction, citing 2 Coke, Inst., 229; 2 Lilly, Abr., 389, 120; ι ibid., 3 7 0 - 7 1 . As in England, the coundes were never subject to admiralty court jurisdiction (Kennedy v. Fowles, argument in error; James Alexander MSS, Box 45). 206 PC 2/97/107. 207 Drafts of appellant's case, N.Y. State Lib. MS, A 2705. 208 PC 2 / 9 7 / 3 1 4 , 345. For a later New York cause of the same nature see Hough, Reports of Cases in the Vice-Admiralty of the Province of New York,, 1 8 1 - 8 3 .

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Fowles and Ritchie v. Ν anion·09 Respondents argued that the instant case was distinguishable in that the Vice-Admiralty Court was the only court established in Newfoundland. As the clause would include the Vice-Admiralty Court without any forced construction, such inclusive interpretation should be given to prevent failure of enforcement. 210 The Committee apparently accepted the contentions of respondents, for the sentence was affirmed. 211 T h e Privy Council was also called upon to adjudicate the force of acts of Parliament in restraining admiralty jurisdiction in prize causes. In 1741 appeals were taken from the issuance of prohibitions by the New York Supreme Court in Pearse v. Cummins and in Pearse v. Key and Hubbard. These cases concerned November, 1739, seizures by Captain Vincent Pearse in HMS. Flamborough of the ships Canary Merchant and Restoration in New York harbor, under authority of a July 10,1739, Order in Council to seize all vessels or goods of the King of Spain, of his subjects, or of others inhabiting within any Spanish territories. The ships were informed against in the N e w York Vice-Admiralty Court. 2 1 2 The owners entered what were essentially pleas to the jurisdiction, that the Vice-Admiralty Court had no jurisdiction of seizures made within the body of the county and city of New York and that the owners were British subjects, born in Ireland. 213 When these pleas were overruled, 214 209

Case of Appellant, Add. MS, 3 6 , 2 1 8 / 2 3 6 37. For Ritchie v. Nanton, a 1759 appeal from the Antigua Vice-Admiralty Court, see PC 2 / 1 0 6 / 4 0 3 , 454. 210 Add. MS, 36,218/238-39. 211 PC 2 / 1 1 0 / 1 7 6 , 193. 212 NYHR Parch., 2 1 7 - B - 3 . 213 Ibid. Robert Auchmuty, in a January 1 5 , 1 7 4 2 / 3 , opinion in Pearse v. Cummins, noted that one part of Cummins' plea sounded like a plea to the jurisdiction (that the seizure was made in the County and City of New York), another an issuable plea to the merits (that the owner was a British subject). He stated that the record industriously concealed the manner of offering the plea and its nature, but it appeared that the plea was given as a plea to the jurisdiction, viz., the plea to the jurisdiction was overruled and a respóndeos ouster insisted upon ( N . Y . Slate Lib. MS, A 2704). Joseph Sharpe observed, on the proceedings in the Vice-Admiralty Court, that respondent's pleas were manifestly to the jurisdiction. If matters of a nonjurisdictional nature were also overruled, it was the fault of respondent for mixing incompatible and inconsistent pleas. Under proper pleading, matter to the merits could be offered after a plea to the jurisdiction was overruled (ibid., A 2693). Key and Hubbard annexed to their "answer" the register of the

Canary Merchant, a Mediterranean pass, and depositions that reclaimants were British subjects and owners of the ship, that the ship was provided with the aforesaid register and pass, and that the seizure took place within the body of the county (William Livingston MS Book of Precedents, N.Y. State Lib. MS, 1329/276-87). John Chambers, for the reclaimants, stated that the substance of the pleas to be argued was that at the time of seizure both ships were lying within the body of the City of New York, not on the high seas, and that this would be proved by testimony. The question was whether if the matters of fact were true, the court could legally proceed to any further hearing. Since the law arose from the facts, the matters of fact set forth in the plea must be allowed to be true. If informant thought the plea good, but not true, he might take issue upon it and proceed to proof, citing Practical Register in Chancery, 282. Furthermore, pleas to the jurisdiction need not be upon oath, citing ibid., 274. The truth of the fact was proved by the oath of one Alexander Forbes (N.Y. State Lib. MS, 9885/436 [John Chambers M SS]). 214 For the proceedings in the Vice-Admiralty Court see 1 MS Mins. Vicc-Adm. Ct. Prov. N.Y., i y i S - φ , 110-12, 114-16.

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prohibitions w e r e m o v e d f o r in the S u p r e m e C o u r t a n d g r a n t e d . 2 1 8

519 Upon

declarations i n prohibition that the court of a d m i r a l t y lacked jurisdiction o v e r a matter a r i s i n g w i t h i n the b o d y of a c o u n t y u n d e r 1 3 R i c h a r d I I , c. 5 , 1 5 R i c h a r d I I , c. 3 , a n d 2 H e n r y I V , c. i t , a n d that the o w n e r s w e r e British subjects, w r i t s of consultation w e r e d e n i e d . 2 1 ® A l t h o u g h supplied w i t h a u t h o r ities that the question w h e t h e r a ship w a s p r i z e or not m u s t be tried i n the a d m i r a l t y c o u r t s a n d that n o prohibition s h o u l d issue, Pearse h a d little h o p e of success in the S u p r e m e C o u r t a n d trusted to error proceedings f o r r e l i e f . 2 1 7 U p o n appeal t o t h e G o v e r n o r a n d C o u n c i l the S u p r e m e C o u r t j u d g m e n t s w e r e affirmed o n A p r i l 1 7 , 1 7 4 1 . 2 1 8 A n appeal w a s m o v e d f o r by counsel J a m e s A l e x a n d e r a n d a l l o w e d in both cases upon c o m p l i a n c e w i t h the r o y a l instruct i o n s . 2 1 9 B o t h appeals w e r e entered a n d referred to the C o m m i t t e e o n N o v e m ber 1 9 , 1 7 4 1 , 2 2 0 b u t it w a s not until M a r c h 2 3 , 1 7 4 2 / 3 , that the P r i v y C o u n c i l o r d e r e d reversal of t h e j u d g m e n t s b e l o w , issuance of w r i t s of consultation, a n d directions to the V i c e - A d m i r a l t y C o u r t to proceed in the original c a u s e s . 2 2 1 W h e n the w r i t s of consultation w e r e p r o d u c e d , the N e w Y o r k V i c e - A d m i r a l t y 215 NYHR Parch., 217-B-3. For the suggestion of Cummins, see ibid., 42-G-6. 216 NYHR Parch., 217-B-3; William Livingston MS Book 0} Precedents, N.Y. State Lib. MS, 1329/276-88. 217 In some considerations upon the cause, Lewis Morris listed the following authorities: "Sea Laws 470"; 1 Siderfin 320, 367; 2 Keble 176; Cart hew 474-76. Morris also noted that if the Supreme Court rejected the plea to the jurisdiction, " I take it that all the benefit of the plea may be preserved by bill of exceptions. It the court overruled it . . . as then its a record of the court we can have the benefit of it on writ of error by means of writ of diminution and what will be of use upon a writ of error I think is what should Chiefly be held in view for reasons more than are proper to committ to writing" (Morris MSS [Rutgers Univ. Lib.]). 218 19 MS Mins. N.Y. Council, 78, 97, 98 (volume in reverse). 219 ¡bid., 98 (volume in reverse). On April 23 the court ordered Captain Pearse to give in security in the sum of ¿650 sterling for the Restoration and £ 7 3 1 / 5 for the Canary Merchant, with two additional sureties each in onehalf the said sums in each appeal. Lewis Morris, Jr., and Lewis Johnston were accepted as sureties and Horsmanden, C. J., ordered to take the recognizances (ibid., 106 [volume in reverse]). On April 27 the recognizances were returned by Horsmanden and filed (ibid., 109 [volume in reverse]). For copies of the

recognizances see James Alexander MSS, Box 45· 220

PC 2 / 9 7 / 1 3 - 1 4 . Upon Captain Pearse's application to the Lords of the Admiralty to prosecute the appeal in his behalf ( A d m . i / 3 6 7 5 / 3 6 ) . King's Advocate General Paul was of the opinion "that the Admiralty has always exercised a jurisdiction in cases of prize in all ports and harbours within His Majesty's domains, and that all ships and goods of enemies seized in port, have been in all wars condemned as perquisites of Admiralty, in the Court of Admiralty. And I never heard that the jurisdiction of the Admiralty was ever disputed in such cases. Several Spanish ships seized in the Port of London, Exeter, and other ports have been condemned this war" (ibid., 34; Dec. 23, 1 7 4 1 , opinion). Cf. an earlier Dec. 18 opinion; ibid., 35. 221 PC 2/97/305-10, 344-45. For the presentation of the Orders in Council and the order thereon by the Governor and Council see 19 MS Mins. N.Y. Council, 2 3 1 - 3 6 . Before the Committee it was objected by respondents that the appellant, having demurred to the declaration in prohibition, thereby admitted the truth of the facts therein alleged and that these facts were sufficient to support the prohibition. This was not only in respect of the general right of jurisdiction in these cases, but in regard the admiralty court had rejected the plea of respondents denying the prize to be Spanish property, thereby depriving respondents of their just defense, which alone was sufficient to pro-

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Court proceeded to condemn both ships in December, 1744, and appeals were taken to the Lords Commissioners for Prize Appeals. 222 There is no evidence of the reasons upon which the Council order was based in these cases, but some light is thrown on the approach of the Lords Committee in prize cases by the appeal in Rous v. Hazzard (1750), from Rhode Island. Following the outbreak of war with Spain in 1739, appellant was commissioned by Governor Shirley of Massachusetts as a privateer, and pursuant to this commission the ship Le Paon was seized upon the high seas without proper papers. This ship was then libeled in the South Carolina ViceAdmiralty Court; whether as prize or as treaty violator or as Navigation Acts seizure does not clearly appear. Upon proof of ownership by French subjects the Übel was dismissed. A n action of trespass for wrongful seizure was then brought against appellant in the Rhode Island courts, finally resulting in a conciliar appeal from a judgment of the Court of Equity for ¿5,000 current money. 2 2 3 Upon argument by common law lawyers before the Committee, Chief Justice Lee expressed doubt whether the case was not properly a prize cause in the original, and not a seizure under 7 and 8 William III, c. 22, as urged by respondents. Following further argument by civil law lawyers, the Chief Justice declared that he w a s entirely satisfied this w a s a prize cause, that the C o u r t of A d m i r a l t y could give damages upon unjust seizures, that damages ought to have been prayed here, and if the C o u r t had refused them H a s s a r d might have sought his remedy by appeal to the L o r d s Commissioners for hearing appeals in Prize Causes, that this matter did not belong to the jurisdiction of the temporal courts, but that prize and all its incidents were subject only to the jurisdiction of the A d m i r a l t y and that an action of trespass did not lye in this case. 2 2 4

Thereupon all three judgments in the Rhode Island courts (Inferior Court of Common Pleas, Superior Court, and Court of Equity) were ordered reversed. 225 T h e constitutional struggle preceding the American Revolution tended to disturb accepted theories as to the force of acts of Parliament in the plantations. In 1766 Chief Justice Hutchinson of Massachusetts wrote that he thought a tolerable system of law had been settled in the province. Where local laws were silent, the laws of England, not merely of the colonization date, but as hibit further proceedings, though jurisdiction was clear. But the appellants were able to produce many precedents of admiralty court condemnations of prizes taken in harbors (N.Y. State Lib. MS, A 2693). 222 ι MS Mint. Vice-Adm. Ct. Prov. N.Y.,

17'5-φ. 158, i68.

223

Case of Appellant (L.C., Law Div.); PC

2/99/369· 224

Endorsed upon Case of Appellant, p. 7 (L.C., Law Div.). Cf. PC 2 / 1 0 1 / 5 1 1 , 542, 543. 225 PC 2 / 1 0 1 / 5 4 7 .

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amended by subsequent statutes (excepting such statutes as were confined to the realm) were the only certain rule of law in judicial proceedings. But following the Stamp Act it had been advanced that acts of Parliament were binding on the colonies only so far as adopted by them. 22 · Further, the doctrine was enunciated that acts of Parliament contrary to the natural rights of the colonists were ipso facto void, on the basis of Coke's dictum in Bonham's Case.227 Hutchinson proposed to resolve the uncertainty by an act of Parliament determining that the common law as amended by statute should be the rule of law in every colony except where any alteration had been or should be made by colonial,enactment.228 A later opinion in Pennsylvania reflects continuation of ideas at variance with the doctrine of the English cases. In 1768 legal neophyte Edward Burd was informed that the general rule of the nonextension of acts of Parliament made since the settlement of the colonies was liable to many exceptions. Certain statutes such as 3 and 4 Anne, c. 9, and 4 Anne, c. 16, 228 had been frequendy adjudged to extend to Pennsylvania. This was bewildering advice to tender a budding lawyer without appending a complete list of acts which were regarded to be in force. The truth is that probably no lawyer in any province could have said with certainty what parts of the English statute books were in use at the eve of the Revolution. Anyone who has examined colonial lawyers' briefs of the period cannot fail to be aware of the fact that unless a case raised points which directly put in issue the extension of an act of Parliament such statutes were constantly cited together with English judicial opinions as the law prevailing in a particular jurisdiction. And on frequent occasions, when the courts thought the rule of a recent statute to be salutary, they proceeded to absorb it into practice without worrying over the way the rule had originated.230 Clearly the political disputes about parliamentary enactments that became so furious after 1765 were directed at problems of a different cut and color than those which bothered a lawyer concentrating upon prevailing litiga224

26 MS Mats. Archives {Hutchinson Corres., ¡761-70), 197-228. 227 Ibid., 183, 202. Hutchinson stated that "Lord Coke's authority is often abused to serve particular purposes and when he says in Bonham's Case that the common law shall sometimes judge Acts of Parliament to be void, no notice is taken of what he says in the same case that they who make them would not put them in execution. When this shall be the sense of those who make Acts of Parliament for taxing the colonists, Lord Coke's authority may more properly, than at present, be adduced to justify courts of judicature and private subjects in the non observance of these Acts" (25 MS Mats. Archives [Hutchinson Corres., '741-73],

129-30). Sec in this connection the argument of James Otis in Paxton's Case of the Writ of Assistance, Quincy Rep. 51, 474 (1761), and Otis, The Rights of the British Colonies Asserted and Proved (1764), 72-73. 228 27 MS Mass. Archives (Hutchinson Corres., 1770-74), 30. Cf. 26 ibid., 228. 228 Edward Burd, MS Notes on Law, 1766-69, 1 1 7 (August 28, 1768), in the Shippen MSS (Pa. Hist. Soc.). On the extension of penal laws to Maryland in 1771 see Steiner, Life and Administration of Sir Robert Eden, 16 Johns Hopkins Univ. Studies (1898), 48. 230 For example, 4 Geo. Ill, c. 10, authorized the granting of a quietus on a recognizance forfeited through ignorance. The New York Su-

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tion which involved questions of private law. 231 What the politician and the lawyer had in common was this—a conviction that the Americans themselves were the proper judges of what was applicable to their situation. preme Court applied this rule, although the statute did not extend to the colonies. Cf. King v. Sealey and Jackson (MS Mint. N.Y. Sup. Ct. lud. [Rough], 7764-67, 1 5 ) ; King v. Neeley and Stephens (ibid., 2 2 ) ; King v. Kain (MS Mini. N.Y. Sup. Ct. Jud. [Engrossed], 17(1466, 100). 231 There was some fear abroad in the colonies that if the colonies were regarded as conquered countries the inhabitants might be held to have forfeited part of their English liberties. On May 26, 1768, it was accordingly resolved in the Maryland lower house that "this province is not under the circumstances of a conquered country"; that "if there be any pretence of conquest, it can be only supposed against the native indian infidels; which supposition cannot be admitted, because the Christian inhabitants purchased great part of the land they at first took up, from the indians, as well as from the lord proprietary"; that "this province hath always hitherto had the common law, and such general statutes of England as are securitative of the rights and liberties of the subject, and such acts of assembly as were made in the province to suit its particular constitution, as the rule and standard of its government and judicature" (61 Md. Archives, 3 3 0 - 3 1 ) . Edward Long (1 The History of Jamaica [ 1 7 7 4 ] , 160-62) made a similar comment as follows: "The island of Jamaica being originally conquered from the Spaniards, settled by natural-born subjects of England, and at the national expence, there can be no pretence to question their title to the benefit of all the laws of England then existing, and the rights of Englishmen. These were their true, legitimate and undoubted inheritance, at the time of the conquest. I know that some antient reporters of law-cases have laid it down for found doctrine, "that the West-Indian islands, being originally gotten by Conquest, or by some planting themselves there, the king may govern them as he will.' Nothing can more expose the absurdity of such an opinion, literally understood, than the position into which it is resolvable, and which amounts in effect to this, viz. if any English forces shall conquer, or any English adventurers possess themselves, of an island in the West Indies, and thereby extend the empire, and add to the trade and opulence of England, the Englishmen, so possessing and

planting such territory, ought, in consideration of the great service thereby effected to their nation, immediately to be treated as aliens, forfeit all the rights of English subjects, and be left to the mercy of an absolute and arbitrary form of government; for such is a government founded and dependant upon the sovreign's will. This is no unfair construction of the maxim I have cited, yet it has received countenance from some other Law Reports, which assert, that 'The King, having conquered a country possessed by foreigners, gains by saving their lives' (i.e. by not murdering them in cool blood), 'a right and property in such people, and may impose on them what law he pleases [citing Dyer, 224; Vaughan 2 8 1 ] . The books inform us, that this savage doctrine was founded on a determination of the lords of the privy-council, at a colony appeal; and they most probably deduced it from the civil codes, whose institutes were framed for, and received by, enslaved nations. Wherever their lordships found it, their determination on this or any other constitutional point is not law (I mean the law of the land) and ought not therefore to have admittance amongst those collections of sage authorities which are to form the rule of judgement in our English courts of law." If the maxim applied to the conquered, not the conquerors, it was still not applicable, for by the fifth article of capitulation certain inhabitants were permitted to stay on the island "they submitting and conforming to the laws and government of the English nation." The conquerors could not have made this assurance unless at the time they were in absolute possession themselves of those laws and government. While approving the doctrine set forth at 2 Peere Williams 75 and 2 Sal^eld 4 1 1 , Long stated, citing Vattel, that "More modern civilians would have instructed their lordships of the privy-council, that, 'when a nation takes possession of a distant country, and settles a colony there, that country, though separated from the principal establishment, or mother country, naturally becomes a part of the state equally with its original possessions.' " Territory conquered at the national expense should be annexed to the sovereignty and become an additional member to the ancient dominion of the realm.

IX JUDICIAL AND LEGISLATIVE REVIEW I T IS COMMONLY SUPPOSED that no phase of conciliar activity was fraught with greater future significance than that which had to do with the judicial testing and rejection of colonial statutes, the subject matter of this chapter. Because of its bearing upon later American constitutional practice, the attention of historians has been devoted chiefly to the case of Winthrop v. Lechmere, where the King in Council as a part of an appellate judgment declared a colonial act in issue to be null and void as contrary to the laws of England. The problem of nullification, however, is of much greater scope and on the whole much less sharp in outline than this one instance might lead one to suppose. Moreover, so far as contemporary thinking was concerned, it is apparent that both administrators and lawyers approached the problem uncertainly and that discussion was clouded by confused conceptions. Some of this perplexity may be laid to the fact that there was little or no theoretical exploration of the two basic factors—the crown's powers of control over colonial legislation, and the status of this legislation in relation to the English law. During and after the troubles over the Stamp Act there was some public ventilation of these questions, and throughout the eighteenth century distinctions were drawn in Council practice that should have furnished the raw materials for settling doctrine. This did not occur. Beyond describing the lawmaking power of provincial assemblies as inferior legislation, in the nature of corporate by-laws, and beyond some vague intimations respecting the supremacy of the crown, little progress in juristic clarification was made. Our own conclusions respecting those contemporary constitutional ideas must consequently be tentative, for they are belated rationalization, and even although based on the practice may not correctly reflect the eighteenth-century opinion. T H E FOUNDATIONS OF DOCTRINE AND PRACTICE

It is desirable at the outset of our discussion to distinguish the several processes of review to which colonial acts were subjected. There was in the first place the administrative examination of such statutes, managed via the Board of Trade. Those which were unobjectionable were confirmed by Order in Council based on report by the Board to the Lords Committee, which in turn

JUDICIAL A N D LEGISLATIVE REVIEW reported to the Council. The same machinery was employed for rejection, commonly denominated "disallowance." Where disallowed, the acts became inoperative upon notice to the enacting colony of disallowance—until such notice, the acts continued in full force. 1 This was the common course; but in a few instances acts were declared null and void ab initio in the routine legislative review process. When this was done, all action taken under the provincial statute was totally lacking in validity. The distinction is the one familiar to lawyers, between voidable and void. 2 The second type of review was that in the course of a judicial proceeding. This occurred, as already remarked, in the exercise of the appellate function by the Privy Council, and since no mere disallowance was possible under such circumstances, an unfavorable determination was inevitably a declaration of nullity. It is further to be noticed that circa 1760 there prevailed among the law officers of the crown the conviction that the courts at Westminster had repeatedly declared void certain colonial acts invoked in English litigation. Proofs of this practice are not satisfactory, but considering the then state of law reporting, the opinion of the lawyers cannot lightly be tossed aside. In any event, it suggests we have to do with a matter of doctrine the intendment of which is far reaching—as well for the constitutional ideas of England as for the colonies. Having marked the circumstances under which a declaration of nullity could be made, we shall consider next the legal basis for the exercise of this power. So far as concerns Privy Council proceedings, the declaration by a judicial process depended immediately upon the charter or the terms of the governor's commission; the declaration in course of legislative review rested upon act of Parliament. This difference in source is important, since on its face the action in the first case is related to the prerogative, and in the second case to the supreme lawmaking power. Back of these superficial distinctions, 1

See ι Chalmers, Opinions, 295. Cf. Labarec, Royal Government in America ( 1 9 3 0 ) , 224— 25. 2 In point of sheer bulk the process of legislative review completely overshadowed the Council's judicial business; moreover, the Board of Trade in 1760 termed conciliar judicial power of "less importance and inferior dignity" to the legislative (5 Stat, at Large Pd., 699). It is consequently surprising that modern writers who have studied the "disallowance" should have disregarded the declarations of nullity in the legislative review process, particularly since the American states after the Revolution themselves experimented with special bodies to determine the validity of statutes.

Sec Russell, The Review of American Colonial Legislation by the King in Council ( 1 9 1 5 ) ; C. M. Andrews, The Royal Disallowance of Colonial Laws, 24 Amer. Antiq. Soc. Proc. (n.s.), 342; McGovney, The British Privy Council's Power to Restrain the Legislatures of Colonial America: Power to Disallow Statutes, Power to Veto, 94 U. of Pa. L.R., 59. Some writers have failed even to distinguish between a "disallowance" and a "declaration of nullity" upon judicial review; see Coxe, Essay on Judicial Power and Unconstitutional Legislation (1893), 2 0 7 - 1 3 ; Russell, op. cit., 227; Aumann, The Doctrine of Judicial Review, 20 Kentucky Law Journal, 277-78, note.

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however, lay a long-standing and vitally significant constitutional doctrine. We have already observed that it was usual to insert in the colonial charters the limitation that laws should not be enacted contrary or repugnant to the laws of England. The commissions to royal governors contained a similar clause, intended to serve at once as check upon the executive and upon the local legislature. This limitation was more than a mere expression of royal pleasure, for it was a basic rule of English law hammered out in the courts and implemented by statute and had a history which ran back to the time of the Plantagenets. The judicial doctrine that local law must conform to the common law was developed by the courts with reference to so-called local customs as well as by-laws 3 and represents a phase of their effort to reduce the law of the realm to uniformity. During the reign of Henry VI a statute taking notice of the enactment of unlawful and unreasonable ordinances required that ordinances of gilds, fraternities or other incorporated bodies be submitted for approval by justices of the peace or chief governors of the cities or boroughs where such bodies were situate.4 Subsequently, in 1503, the manner of review was altered, the power being committed to "the Chancellor, Treasurer of England or Chief Justices of either Benches or three of them," or to the Justice of Assizes.5 This necessity for approval did not exclude the courts in the exercise of the power to declare null and void ab initio by-laws repugnant to the laws of England. Indeed, in the celebrated Case of the Tailors of Ipswich it was laid down by Lord Coke that allowance as stipulated by 19 Henry VII, c. 7, "doth not corroborate" the ordinances, but left them to be affirmed as lawful or disaffirmed as unlawful by the law.® The applicability of these conceptions to the plantations was facilitated by the circumstance that the corporate form had been employed in the case of early settlements,7 and the appositeness of the learning on by-laws is obvious from Randolph's charges against Massachusetts Bay in 1683.8 Since the patents to proprietors in various particulars, including the limitation upon legislation, were substantially identical, the extension of these precedents was no great tour de force, especially since the courts had executed with regard 3

2 Holdsworth, H EL, 400. 15 Henry VI, c. 6. 5 19 Henry VII, c. 7. Cf. S. Kramer, The English Craft Gilds and the Government (1905), 61 et seq. 6 H Coke Rep. 53a. In The Stationers in the City of London v. Salisbury (Comb. 221) counsel contended that a questioned by-law had been signed by the Lord Chancellor. To this the Justices of King's Bench declared that 4

"tis never the better for that, for that is done of course. So we use to do in the circuits; but if the orders be not good, let the parties look to that at their peril." See also Davenant v. Hurdis (Moore [K.B.] 576); Norris v. Staps (Hobart 2 1 0 ) . 7 On this see Goebel and Naughton, Law Enforcement in Colonial New Yor{, c. i, note 10. 8 3 Edward Randolph, 229, 233.

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to private franchises identical rules respecting by-laws made at a court leet. In the case of the royal colonies, where the manner of government depended upon the commission to the governor, the effect of the clause requiring laws to be agreeable to those of England is obscure. Pownall 9 asserts that the constitution in these colonies rested upon the commission and instructions, a suggestion followed by Blackstone 1 0 and later by Mansfield in Campbell v. Hall.n This notion is already implicit in a 1721 report to the Council 12 respecting the various continental colonies, but the word "constitution" is there used probably only in the sense of governmental structure, not as Pownall employed it in the broader philosophical sense of something upon which political rights depended. If the governor's commission is to be treated simply as any other type of English commission, the restriction laid down in the early seventeenth century 1 3 that commissions had to be exercised pursuant to English law was applicable, and the basis for treating as void laws passed in despite of the limitation existed in the common law. It is not to be assumed that the matter just discussed was long out-moded black-letter learning, of no concern to the gentlemen at Whitehall. The moves by Charles II and his advisers against the chartered boroughs and in particular the assault on the City of London (1681-83) infused the ancient precedents with fresh vitality and served to make the matter of by-law power and its exercise an issue which excited the greatest public attention.14 This interest did not abate until some time after the Revolution of 1688 and contributed to the general sentiment that curbs against "illegal" exercise of authority had to be found. The measures taken by statute to control colonial legislation may be viewed as a part of this reaction. The basic statutory regulation, and the source of administrative declarations of nullity, was the ninth section of the so-called Act for Preventing Frauds, and Regulating Abuses in the Plantation Trade (7 and 8 Wm. Ill, c. 22 [1696]). It was there enacted "that all laws, by-laws, usages or customs, at this time, or which hereafter shall be in practice, or endeavoured or pretended to be in force or practice, in any of the said plantations, which are in any wise repugnant to the before mentioned laws, or any of them, so far as they do relate to the said plantations, or any of them, or which are any ways repugnant to this present act, or to any other law hereafter to be made in this Kingdom, so far as such law shall relate to and mention the said plantations, are illegal, null and void, to all intents and purposes whatsoever." 9

The Administration of the Colonies (2d ed., 1 7 6 5 ) . 54-5510 ι Commentaries, 108. 11 20 Howell, State Trials, 300. 12 5 Doc. Rei. Col. Hist. N.Y., 591 et seq. See particularly ibid., 595, 606, 627. See also the

use of "constitution" in a January 23, 1733/4, representation of the Board of Trade to the House of Lords (Add. MS, 3 5 , 9 0 7 / 5 1 ) . 13 12 Col^e Rep. 19, 50. 14 Cf. 8 Howell, State Trials, 1039 el seq.

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Before proceeding to discuss how this statute was executed, it will be useful to mention certain determinations antecedent to this important pronouncement that serve to illustrate how the supremacy of Parliament was conceived. There was in the first place the provision of the Bill of Rights declaring void all dispensations of statutes and non obstantes,15 At the same session the proceedings of the Irish Parliament were similarly declared void, 16 and in 1690 an act was passed reversing, annulling, and making void the judgment in the quo warranto against the city of London. 17 Apart from the general political significance of this sort of legislative interference with hitherto established executive right (viz., the non obstante) and the finality of judgments, these acts, being declarations of nullity respecting matter outside the normal control of Parliament, tended to promote ideas theretofore limited to judicial proceedings. The ninth section of the Act for Preventing Frauds was thus not an isolated instance of Parliamentary experimentation 1 8 with nullification, but because it applied without exception to all the plantations and purported to fix a longterm future policy it was the most important. Seemingly the section was inserted at the suggestion of Chief Justice Holt, for he "was heard as to the laws interfering concerning navigation and offered a clause drawn by him to be added to the bill." 1 0 It is entirely possible that this clause is the one before us; for it was Holt who only a few years later expressed judicially approval of the doctrine of Bonham's Case that acts of Parliament were void which ran counter to basic common law principles. " A n Act of Parliament," said he, "can do no wrong though it may do several things that look pretty odd;—for it may discharge one from his allegiance to the government he lives under and restore him to the state of nature; but it cannot make one that lives under a government Judge and Party." 20 What is, of course, apposite here is Holt's conception that given a basic legal rule, dispositions contrary thereto could be declared void. 21 For our purposes it is the prevalence of such a conception which is important; the source of the basic rule is immaterial, for a single agency (viz., the King in Council) was exercising all types of supervisory enforcing authority and was concerned simply with the application of English standards to the acts of inferior jurisdictions. There is evidence of this viewpoint long before 15

i Wm. & M., 2 scss., c. 2, and compare 3 Wm. it M., c. 2, s. 1 7 (Oath for Ireland) re dispensation by warrant or letters patent under the Great Seal of either England or Ireland. 10 ι Wm. & M., 2 sess., c. 9. " 2 Wm. & M., 2 sess., c. 8. 18 See also 6 Geo. I, c. 5, re appeals to the Irish House of Lords. 19 2 Stock, Proceedings and Debates of the

British Parliaments Respecting North America, 170. 20 City of London v. Wood ( 1 7 0 1 ) (8 Mod. 669, 687). 21 See Holt's argument in East India Company v. Sandys that "if any law be made against any point of the Christian religion, that law is ipso jacto void" (10 Howell, State Trials, 3 7 5 ) .

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colonial administration was reorganized. In 1674 an appeal came before the Committee for the Affairs of Jersey and Guernsey which involved the law of Guernsey. Upon report to the Council it was laid down that "the King does disallow of the rule upon which the sentence was given, it being against common right to condemn and give sentence against minors and infants upon pretence of laches or default by themselves or their guardians." 2 2 Repugnancy to the laws of England proper was no criterion in the case of Channel Islands law and custom, hence the determination in this case obviously rests upon the premise that basic English standards of justice must in any event prevail, and laws or decisions counter thereto were void. The Statute 7 & 8 William III, c. 22, said nothing respecting the delicate question as to where the power to declare plantation laws null and void was to be lodged. Since the Council under the last Stuarts had been disallowing laws and since there existed also the Channel Islands precedent for judicial declaration of nullity, it was probably expected that the Privy Council would execute this statute. In any event, to give effect to this statute, the trade instructions to colonial governors from 1697 onward directed such officers not to make or to allow any laws, by-laws, usages, or customs repugnant to certain acts of Parliament (with which they were directed to familiarize themselves) in so far as these related to the plantations or repugnant to any law thereafter made in so far as it related to the plantations. All such laws, by-laws, usages, or customs in any wise repugnant to such laws were to be declared "illegal, null, and void to all intents and purposes whatsoever." 2 3 This direction was obviously not limited to governors acting in their judicial capacity. Further acts of Parliament were passed in 1751,1763, and 1766 declaring null and void 22

In Gosselin v. Gossel in appellant petitioned the Council complaining that his mother suing in his name for an inheritance was adjudged to silence as being too late in her demand and prayed that the sentence be declared null as given against an undefended infant (PC 2/63/228 [April 26, 1 6 7 2 ] ) . The Committee for the Affairs of Jersey and Guernsey, to which the matter was referred, found true the petitionary allegations of fact and considering that sentences given against undefended infants were ipso jure null and void and that it was common right to relieve infants, advised that the petition be admitted by the Council Board. It was thereupon ordered by the King in Council that the petition be admitted and the sentence be set aside; that the infant appellant be allowed by the Royal Court to claim the succession and to produce his evidence, despite any laches by his mother, unless that court

showed cause to the contrary within forty days of notice (PC 2/63/250 [May 24, 1 6 7 2 ] ) . On July 17, 1674, after the answer of the Royal Court had been referred to the Committee for the Affairs of Jersey and Guernsey and counsel heard thereon, report was made by the Committee. Whereupon the King in Council declared that the Royal Court was not to blame, since the island law had been followed, but the King disallowed the rule upon which the sentence was given, and the sentence was then ordered vacated; the infant was to be allowed to demand the right to succession to realty and personalty despite any laches, and respondent was to account for appellant's share of the estate of Josuah Gosselin (PC 2/64/260). - 3 2 Labaree, Royal Instructions, # 1 0 5 3 . For the acts of which the governors were to inform themselves see ibid., #1035.

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c e r t a i n c a t e g o r i e s of p r o h i b i t e d legislation in all o r several c o l o n i e s . 2 4 B u t w e a r e p r i m a r i l y c o n c e r n e d w i t h t h e p r o v i s i o n of t h e 1 6 9 6 act. B e f o r e t a k i n g v i e w of the v a r i o u s acts declared n u l l a n d v o i d , let u s e x a m i n e t h e m e a n i n g of the s e e m i n g l y i n t e r c h a n g e a b l e p h r a s e s " c o n t r a r y to the l a w s of E n g l a n d " a n d " r e p u g n a n t to the l a w s of E n g l a n d " in colonial c h a r t e r s a n d c o m m i s s i o n s . H i s t o r i c a l l y these f o r m u l a e in their o r i g i n w e r e i n t e n d e d a s c a v e a t s a g a i n s t u n d u e exercise of b y - l a w p o w e r . A s w e h a v e a l r e a d y noticed, there is reason t o believe that w h e n they c a m e to be a p p l i e d to p l a n t a t i o n c h a r t e r s their i n t e n d m e n t w a s n o t to i n t r o d u c e t h e c o m m o n l a w as s u c h ( f o r this w o u l d h a v e i n v o l v e d a d i m i n u t i o n o f p r e r o g a t i v e ) , b u t to set u p a s t a n d a r d r i g i d e n o u g h to restrict the g r a n t e e s a n d b r o a d e n o u g h to g i v e u t t e r discretion to t h e g r a n t o r . T h i s g e n e r a l political intention of the f o r m u l a e is i n d i c a t e d f u r t h e r b y a n alternate expression used in s o m e c h a r t e r s a n d c o m m i s s i o n s that l a w s w e r e to b e " a s near as m a y be a g r e e a b l e " to t h e l a w s of E n g l a n d . 2 5

Ob-

v i o u s l y w e h a v e in this case a test as i m p a l p a b l e as the " r e a s o n a b l e n e s s " b y w h i c h t h e c o u r t s at W e s t m i n s t e r d e t e r m i n e d the v a l i d i t y of local c u s t o m s a n d b y - l a w s . O f o n l y o n e constant c a n w e be certain, a n d that is, m e r e v a r i a n c e w a s n o t r e g a r d e d as r e p u g n a n c y o r c o n t r a r i e t y . 2 0 P r o b a b l y , also, it m a y b e 24 24 Geo. II, c. 53, declared ipso facto null and void certain categories of future monetary legislation in Rhode Island, Connecticut, Massachusetts, and New Hampshire. All act«, orders, resolutions, or votes for the issuance of paper bills or bills of credit, for the prolongation or depreciation of such existing currency were thus prohibited. 4 Geo. Ill, c. 34, declared null and void all future acts, orders, resolutions, or assembly resolves issuing and endowing with legal tender qualities bills of credit or prolonging said qualities in current bills of credit beyond the time fixed for discharge. The Declaratory Act (6 Geo. Ill, c. 1 2 ) declared all colonial resolutions, votes, orders, and proceedings denying or questioning the power and authority of Parliament to bind the colonies, utterly null and void to all intents and purposes whatsoever. 25

3 Thorpe, Federal and State Constitutions, 1628, 1638, 1642, 1 6 8 1 ; 5 ibid., 2746; 6 ibid., 3 2 1 5 . For commissions cf. supra, p. 2 1 5 . 20 In a November, 1716, representation of the General Assembly of Pennsylvania to the governor on the subject of affirmation acts in the province it was stated, "if it (the colonial act] must be termed repugnant because it differs from or is not the same with the act of Parliament, then the clause of the royal charter which grants power to the Governor and As-

sembly here to alter the laws of England for the descent of land, enjoying estates, and punishing felonies in this province . . . appears to be useless and in vain. "But it is further to be considered, that as the term repugnant always implys an absolute opposition or contrariety in matter, it cannot be said, that an act of this province, which enables those called Quakers to serve in office, upon juries, and to be evidences in all cases, the circumstances of the countrey requiring that it should be so, is contrary to an act of Great Britain, which enables them only to give evidence in civil cases; these two differ 'tis true, and so it was certainly considered and expected at the time of the royal grant, that our acts might in some measure differ from those in England, otherwise those of England would suffice, and no such power for altering them needed to have been granted; on the contrary, the act of this province, pursuant to the directions of that royal charter, is so nearly agreeable as to our conveniency may be to the statue provided for Quakers in Great Britain" (2 Mins. Prov. Coun. Pa., 6 2 1 ) . Discussing the appeal of Philips v. Savage in Massachusetts (see infra, p. 562) the Reverend Benjamin Coleman stated: "Certainly we must distinguish between what is dißerent from the laws of England and what is repugnant thereto.

JUDICIAL A N D LEGISLATIVE REVIEW hazarded that a prima facie presumption of repugnancy would exist in the case of acts running counter to any established common law or equity doctrine that was living law in England. The colonists, of course, had their own ideas respecting the meaning of these expressions, their notions being colored somewhat by their precise immediate objective. One of the most radical theories was the notion that the words "laws of England" were to be interpreted to mean only those acts of Parliament which extended to the colonies. This idea underlies an exposition made in 1721 by Jeremiah Dummer with reference to the charge which had been recendy brought in Parliament that the charter governments had made laws repugnant to the laws of Great Britain. Examining the meaning of the clause "repugnant to the laws of England," Dummer stated that a colonial law might be various from the laws of England, yet not repugnant thereto. Every country had peculiar circumstances to which its laws must be adapted, and the laws of England were in many ways not suited to colonial conditions. A colonial law might be said to be repugnant to a law made in Great Britain when it flatly contradicted it, so far as the law made in England mentioned and related to the plantations. If a law passed in England had its force restrained to England, Wales, and Berwick on Tweed, no law in the plantations could properly be said to repugn it. This opinion was then supported by citation of section nine of the 1696 act as controlling the meaning of the phrase in question. Dummer then alleged that in that sense of the phrase there never was a law made in the plantations repugnant to the laws of Great Britain. Rather did Dummer prefer the construction that the chartered colonies should not make laws inconsistent with Magna Carta and the other laws of England by which lives, liberties and properties were secured. 27 A 1742 pamIf differing circumstances of a new plantation may make it necessary in many cases to make differing laws, and if every difference be esteemed a repugnancy and contradiction, a defamation or violation, of the laws of England, it were in effect to say that we must make no law at all, but refer our selves entirely to the laws of the realm from whence we derive and whereon we depend" (Coleman to Francis Wilks [ ? ] , Nov. 12, 1 7 3 5 ; Coleman MSS, 1735-63 [Mass. Hist. Soc.]). See also the opinion of Michie, C. J., of the South Carolina Court of Common Pleas in Williams, Administrator de bonis non v. Executors of Watson (infra, p. 589). Instances can also be culled from the legislative review process in which acts were said to vary from English laws or practice, but were not termed repugnant thereto. See examples from Pennsylvania (2

Stat, at Large Pa., 497 [Mm], 523, 549-50; 3 ibid., 465), Georgia (4 APC, Col., # 4 5 3 , 569), North Carolina (5 ibid., p. 39), Nova Scotia (5 ibid., # 4 3 8 ) , South Carolina (4 ibid., # 4 5 2 ) , and New Hampshire ( C S P , Col., 1717-18, # 6 1 5 , 627, 674). Governor Hart of Maryland also urged approbation of an act "seeming not to be agreeable to the laws of England" (CSP, Col., 1714-15, #541). 27 Jeremiah Dummer, A Defense of the NewEngland Charters (1765 ed.), 66-70. The author seemingly was opposed to testing the repugnancy of colonial acts by a vague standard of English law; his standard was that of English laws actually in force in the colonies, viz., acts of Parliament specifically extended thereto. But he overlooked the fact that under the doctrine of such cases as Blankard v. Galdy (Holt K.B. 3 4 1 ) the laws of England at the

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531

phlct also adopted Dummer's view of the 1696 act, with the possible addition of acts directly invasive of the royal prerogative or plainly inconsistent with the liberties of the subject.28 The view advocated by Dummer still provided subject for controversy in the period of political agitation preceding the revolt of the continental colonies.29 That this was a patent misuse of the 1696 act appears from the historic weakness of Dummer's argument. First, the prototype clause in domestic corporate charters was not confined to repugnance to a limited part of the laws of England. Secondly, at the period of the issuance of the early colonial charters few acts of Parliament extended to dominions of the crown, providing virtually no legislative standards.30 Further, there is some evidence of Stuart belief that the American colonies were beyond reach of acts of Parliament.31 Another view, seemingly not widely held, was that by the "laws of England" in colonial charters was meant the common law as it stood at the date of the charter.32 A minor question was whether a colonial act repugnant to a public treaty was to be considered as repugnant to the laws of England.83 The opinion held in some plantation circles that such treaties were not part of the laws of England 34 was affirmed by the crown law officers.35 EARLY LEGISLATIVE REVIEW

Let us now examine chronologically the various instances preceding Winthrop v. Lechmere in which colonial acts were declared void or such declarations were discussed. In 1698 Pennsylvania passed an act for preventing frauds and time of the settlement of a colony might be regarded as in force in such colony as an uninhabited territory discovered by English subjects. In rebuttal it might be argued that the laws of England did not extend to conquered countries and that most colonies were of the same status as Virginia, which had been held a conquered country; see Smith v. Brown (2 Sal^eld 666). But see the denial that Maryland was a conquered country, supra, p. 522. -s Remark.s on Several Acts of Parliament Relating Mere Especially to the Colonies Abroad (1742), 17-18. See the passages between the Governor and the Assembly of Massachusetts in 1773 (Principles and Acts of the Revolution in America [ed. by H. Niles], 284, 2 9 1 ) . Cf. the 1779 statement of Baron Maseres (3 Canadian Freeholder [ 1 7 7 9 1 , 774). 30 See Schuylcr, Parliament and the British Empire ( 1 9 2 9 ) , 1 9 - 2 2 . 31 Ibid., 22-24.

32 This view was allegedly favored by Governor Hopkins of Rhode Island in 1766 (26 MS Mass. Archives [Hutchinson Corres., 1761-70], 197). 33 This question was raised in 1 7 1 8 by David Dunbar, Surveyor General of the Customs, in connection with an Antigua act which was repugnant to articles of a 1686 commercial #495). treaty (CSP, Col., 1717-18, 34 Lieutenant-Governor Spotswood of Virginia wrote that it was "the common opinion here that the treatys of sovereigns do not bind the subjects unless confirmed by Act of Parliament" (ibid., # 4 0 6 ) . Cf. the Board of Trade opinion (ibid., # 5 9 8 ) . 35 These officers were of the opinion that the articles of a treaty "could not have had its effect with respect to His Majesty's subjects, unless the said articles had been confirmed either by Act of Parliament of Great Britain or by Acts of Assembly within the respective plantations" (ibid., 1728-29, #230).

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regulating abuses in trade within the province. 38 The Commissioners of the Customs in the following year represented the act as repugnant to the 1696 act of Parliament and destructive of the Vice-Admiralty Court erected by authority thereof and recommended repeal. 37 Although it was declared that the act had received a proprietary disallowance, the Board of Trade was of the opinion that such simple disallowance was not sufficient to discountenance future attempts. Therefore, it advised that the Privy Council declare the act in question and all other future acts that should be made contrary to the laws of England to be void in themselves, without any particular repeal, and ipso jacto null and of no effect. 38 By an August 31, 1699, Order in Council it was declared that "the said act and all other acts which are or shall be made in the said province contrary to the known laws and statutes of the Kingdom, are to be held and deemed as null and void, and of no effect from the time of making such acts." Accordingly, the 1698 act was "declared to have been and to be null and void from the time of making the said act." 3 9 T w o features of this transaction are of importance. N o reluctance was shown at declaring the act void ab initio in a nonjudicial proceeding. Secondly, the standard established—"the known laws and statutes of the Kingdom"—expanded the standard provided in the 1696 act, that of certain acts of Parliament extending to the plantations. In the next year we find Lieutenant-Governor Markham of Pennsylvania declaring that any provincial laws repugnant to the laws of England or contradictory to the commission of a Vice-Admiralty Court judge "were void in themselves." Markham apparently was of the opinion that no judicial declaration of nullity was necessary, for he stated that upon knowledge of any laws within the above categories, he "would immediately declare them void." T h e Judge of the Vice-Admiralty Court, Robert Quary, was also advised to overrule any law other than the laws of England pleaded in his court.40 Presumably these expressions were an effect of the nullifying Order in Council. Although somewhat out of strict chronological order, let us examine for comparative purposes a Virginia episode in 1715 when the Council and Board of Trade took a much less bold position. In October, 1705, an act had been passed in that colony declaring that no person should bear office in the colony 3e

Charter and Laws Prov. Pa., 268. CSP, Col., 1699, # 4 5 0 , 450 II. Ibid., # 6 9 4 . But proprietor Penn possessed no power of disallowance in any event (2 Stat. at Large Pa., 473-74)· Cf. 2 Mint. Prov. Coun. Pa., 146-47. 39 PC 2 / 7 7 / 3 7 1 ; H. of L. MS, 2 4 7 / 1 1 3 - 1 4 . 40 CSP, Col., 1700, # 1 7 6 . Markham stated that although Quary held several courts, he did 37

38

not know that any provincial law was ever urged to oppose the laws of England or contradiet the power of the Admiralty. A decade later we find similar sentiments voiced by Governor Parke of the Leeward Islands. Commenting upon an Assembly act he stated that "besides the naturall injustice as its contrary to the laws of England, I presume it is in itselfe void" (CSP, Col., 1710-11, #39:).

JUDICIAL A N D LEGISLATIVE REVIEW until resident therein three years, under /500 penalty.41 Surveyor General Keith suspended one George Luke as collector of the lower district of the James River and granted a deputation to Francis Kennedy to officiate in that district Whereupon an information was exhibited against Kennedy in the Virginia courts for the ¿500 penalty. The Attorney General was of the opinion that the 1696 act of Parliament having given the Commissioners of the Customs appointive powers in the plantations, the Virginia act was void under section nine as repugnant to another section of the 1696 act; further, that the colonial act not having been approved might be repealed. If judgment were given on the forfeiture, satisfaction might be acknowledged by the crown or the judgment reversed by writ of error.42 The Board of Trade then represented that the provincial act being repugnant to the Act for Preventing Frauds the crown should signify disallowance and disapprobation of the law.43 Disallowance accordingly followed on August 31, 1715.44 This action is a far cry from that taken on the early Pennsylvania act. Several other instances are available where the Council declined to declare acts within the purview of section nine null and void ab initio in favor of mere disallowance. In 1719 the Commissioners of the Customs reported a Jamaica Act for ascertaining the number of ports of entry as contrary to the Acts of Navigation.45 The Board of Trade thereupon offered to the King that he declare his disapprobation of the act as repugnant to the Acts of Trade and Navigation and "consequently in its own nature illegal, null and void." 46 Despite this recommendation, however, the act was merely disallowed on May 26, I7I9·47 In this same year the Board of Trade reported upon a Massachusetts act which bore the deceptive title "For granting his Majesty several Rates and Duties of Impost & Tunnage of Shipping made at Massachusetts Bay." The Board of Trade proposed, since the act was of so extraordinary a nature, that the King declare his disapprobation thereof "as being repugnant to the laws of this Kingdom by which the plantations are and ought to be bound and consequently illegal, null, and void to all intents and purposes whatsoever." 48 But the language of the disallowance was in the usual form.49 41

3 Hening, Stat, at Large Va., »50. *¿ CSF, Col., 1714-15, #483. « Ibid., # 5 0 4 . "Ibid., # 5 9 1 ; PC 2/85/274. « CSF, Col., 1719-20, # 1 3 8 . *"Ibid., # 1 4 8 . "PC 2/86/261; CSP, Col., 1719-20, #198. 48 2 Acts and Ret. Prov. Matt. Bay, 127-28. Provisions of the act ran contrary to the Navigation Acts, discriminated against English shipping, and placed hardships upon English ship owners. For the act, see ibid., 107. Jeremiah

Dummer wrote that it was owing to the ill services of Lieutenant-Governor Usher of New Hampshire and Colonel Byfield that the Board of Trade made this sharp report. "I have reason to say what I do, because the Commissioners of Trade were told by somebody (I can't certainly say who, but its easy to guess) that the Assembly of New Hampshire not long since came to a resolution to lay a tax tole and impost on all European goods, from whence it was inferred that if some check were not given to this licentiousness, the plantations

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W c now consider conciliar action upon three South Carolina acts. The quality of this action, whether it constituted mere disallowance or declaration of nullity, is not altogether certain. An Order in Council of June 10, 1706, declared "null and void" two South Carolina acts of 1704 derogatory to the established church in that colony. 50 Complaint against these two acts was initially made by inhabitants of the colony to the House of Lords; this body responded with a March 12,1705/6, address to the King in the matter. In this address the act for the establishment of religious worship was termed "not warranted by the charter granted to the proprietors of that colony, as being not consonant to reason, repugnant to reason and repugnant to the laws of this realm, and destructive to the constitution of the Church of England." The act for the more effectual preservation of the government was represented as "founded upon falsity in matter of fact, is repugnant to the laws of England, contrary to the charter granted to the Proprietors of that colony . . . , is destructive to trade, and tends to the depopulating and ruining the said province." 6 1 The Board of Trade to which the address was referred sought the opinion of the crown law officers. On May 17, 1706, Northey and Harcourt reported that the two laws, not being consonant to reason and being repugnant to the laws of England, were not warranted by the charter. Being therefore made without any sufficient power or authority derived from the crown, they did "not oblige or bind the inhabitants of that colony." The King might lawfully declare the laws null and void, command that they should not be put into execution or observed, and require the Proprietors and Assembly to enact and declare the said acts null and void. The Board of Trade repeating this opinion, the acts were accordingly on June 10, 1706, declared "to be null and void." 6 2 The Proprietors and Assembly were also strictly enjoined and required not to permit the said laws or any part of them henceforward to be put into execution, but forthwith to declare the same null and void to all intents and purposes. 83 As to whether this is a disallowance or a declaration of might come in time even to prohibit the British manufactures" (51 MS Mass. Archives {Utters, 1692-1724}, 323-25)· 49 2 Acts and Res. Prov. Mass. Bay, 128. 50 PC 2 / 8 1 / 2 1 1 . The two acts were An Act for the More Effectual Preservation of the Government of this Province, etc. (2 Stat, at Large So. Car., 232) and An Act for the Establishment of Religious Worship in this Province, etc. (ibid., 236). 51 ι Col. Ree. No. Car., 634-40; 6 H. of L. MSS (n.s.), 410; ι Hewatt, An Historical Account of the Rise and Progress of the Colonies of South Carolina and Georgia ( 1 7 7 9 ) , 1 7 0 -

77. For the background of this legislation see McCrady, History of South Carolina under Proprietary Government, 1670-1719 (1901), cc. 1 8 - 1 9 ; Dalcho, Historical Account of the Protestant Episcopal Church in South Carolina ( 1 8 2 0 ) , 53-69. 52 ι Col. Ree. No. Car., 642; CSP, Col., 1706-8,

#328.

53

H. of L. MS, 2 4 7 / 1 3 0 - 3 3 ; 2 APC, Col., # 1 0 0 2 ; CSP, Col., 1706-8, # 3 3 6 . But note the earlier March 6, 1705/6, proprietary disallowance of the Act for the Establishment of Religious Worship in this Province, etc., (ibid., # 1 5 8 ) and the Feb. 27, 1706/7, proprietary

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535

nullity, there is support for either view. The crown law officers obviously regarded the acts as void ipso facto. But the language of the Order in Council and the proprietary action thereunder indicate a disallowance. The words "null and void" in themselves are not conclusive, since in disallowances the language "repealed and declared null and void" is sometimes found. In 1767, as we shall see, this Order in Council was regarded as a precedent for declaration of nullity.54 If the conciliar order is regarded as a declaration of nullity, it cannot be based upon the language of the 1696 act, for there was no question here of repugnancy to an act of Parliament extending to the plantations. We incline to the opinion that the Order in Council was in the nature of a disallowance rather than a declaration of nullity. Later, a second Order in Council, of May 14,1718, declared "null and void" a 1717 South Carolina act imposing a 10 percent duty upon all British goods imported into the province. The same injunction was directed to the Proprietors and Assembly as in the above June 10, 1706, Order in Council, with the addition that strict orders should be given the governor not to pass any law of a like nature in the future, the same not being consonant to reason, but repugnant to the laws of Great Britain and in no way warranted by the charter.55 In this case, complaint having been made about the act by William Rhett, local surveyor of the customs, the Board of Trade had queried the Solicitor General whether the act was contrary to the charter legislative powers and what the crown could do to remedy the inconveniences of such laws and prevent the like for the future.56 Solicitor General Thomson had been of the opinion that the act might be truly said not to be consonant to reason and it might prove such a burden to trade as to be in effect a prohibition of such trade to British subjects, which was by no means agreeable to the laws of Britain. Therefore it was apprehended that the charter legislative power was exceeded; but "it would be too tedious, and too expensive, for every particular trader to contest the payment of the duty there, upon the supposed invalidity of the act, as being unreasonable, and if determined against them there, to appeal to the King in Council." Recommended methods of relief were petition to the King (with a sanction of vacating the charter, if the grievance were not order that the said act "be from henceforth repealed, annulled, revoked, and for ever made void" (Commissioni and instructions from the Lords Proprietors of Carolina to Public Officials of South Carolina [ed. by A. S. Salley, Jr., 1916], 192-94). See also the repealing act of Nov. 30, 1706 (2 Stat, at Large So. Car., 281). 54 Infra, p. 613. In some other quarters the order also appears to have been understood as

a declaration of nullity; see Rivers, Sketch History of South Carolina (1856), 225. Cf. McCrady (op. cit., 444-45) who treats the conciliar order as a direction to repeal the offensive acts. 55 H. of L. MS, 247/135-37; PC 2/86/141; CSP, Col., 1717-18, # 5 3 7 . For the act, sec 3 Stat, at Large So. Car., 32. 56 CSP, Col., 1717-18, # 4 5 2 , 463.

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remedied) or complaint to Parliament.57 The Board of Trade had thereupon related the Thomson opinion and declared that it agreed with the 1706 opinion of the crown law officers. Since the act was in force until repealed, the King in Council had been advised to order the proprietors to disallow the act.58 As we have seen, the Order in Council accordingly issued on May 14, 1718. 59 In this case there would seem little doubt that the Order in Council was a disallowance, not a declaration of nullity, yet in 1767 this conciliar order was also regarded as a declaration of nullity.60 The identical language of this order obviously supports the view that the earlier action of the King in Council was only a disallowance. There is some evidence that colonial judges were not fully aware of their declarative powers under section nine of the Act for Preventing Frauds. In May, 1717, Nicholas Trott, sitting in the South Carolina Vice-Admiralty Court, heard a cause in which the Ludlow Galley had been libeled by Thomas Saunders et al. for wages due as seamen. In this case the owner, one Barons, had agreed to pay the seamen on a slaving voyage from Guinea in currency of the colony where the slaves were landed. When the slaves were landed in South Carolina (the crew apparently thought the ship bound for Virginia), the owner endeavored to pay ofï the seamen in depreciated South Carolina bills of credit under the terms of the agreement. Refusing this tender, the seamen libeled the ship. 61 In his decision Trott stated that the several acts of Assembly m a d e in this province for stamping bills of credit ( w h i c h are of so small intrinsick value that 2 5 shillings of the said stamped bills are n o w of no greater value than a piece of eight) are very repugnant and contrary to the said statute [c. 3 0 ] of the sixth of her said Majesty Queen A n n e in asmuch as the said bills bear no equality or proportion to the said act, seven and 2 0 shillings and 6 pence in the said stamped bills being n o w currently passed and given for one ounce of silver.

Therefore it was decreed that the wages be paid in pieces of eight at the rate fixed by 6 Anne, c. 30, or in bills of credit, with due allowance for their depreciated state.62 Despite mention of repugnancy, there was no declaration that the several acts of assembly were null and void under the 1696 act of Parliament. 57

1 Chalmers, Opinions, 292-93; CSP, Col., 1717-18, #489· ss ibid., # 5 1 4 . 69 For the proprietary order declaring the act "null and void to all intents and purposes whatsoever" see ibid., # 6 3 1 ; 3 Stat, at Large So. Car., 33.

60

Infra, p. 6 1 3 . The record is in Rawlinson MS, C 385. 62 MS So. Car. Adm. Ree., Vols. A and B, 1716-33, 63-78.

81

JUDICIAL AND LEGISLATIVE REVIEW Wc have now before us the record as it stood prior to the appeal in Winthrop v. Lechmere. Except for the early Channel Islands case, it includes nothing of judicial declarations of nullity and only one certain avoidance by legislative review. It can scarcely be said that any administrative or judicial tradition had been established and for this, among other reasons, the Connecticut case aroused great contemporary excitement. We shall deal at some length with Winthrop's appeal, for it affords the only instance we have seen of a colonial act specifically declared null and void ab initio upon judicial review by the King in Council. Whether it can be supplemented with instances from the courts at Westminster will be discussed later. WINTHROP V. LECHMERE

The occasion for judicial review was found in the proclivity of the continental colonies to subject realty to the same distribution upon intestacy as personalty, contrary to English practice.92· Prior to this cause several colonial acts had received disallowance on this ground, but declaration of nullity had not been mooted.83 Winthrop v. Lechmere involved the validity of a 1699 Connecticut Act for the Settlement of Intestate Estates. Under the provisions of this act an intestate decedent's estate, both real and personal property, was to be divided in equal shares among the intestate's children or their legal representatives, the eldest son or his representatives receiving a double share.94 Although ®->a Sec G. L. Haskins, The Beginnings of Partible Inheritance in the American Colonici, Si Yale Law Journal, 1280 et seq. 98 In Pennsylvania a 1700 Act for the Ascertaining the Descent of Lands and Better Disposition of Estates, of Persons Intestate was disallowed in February, 1705/6 (2 Stat, at ÌMrge Pa., 31, 455). The act, which gave administrators power to sell the realty of intestates and distributed both realty and personalty as personal estates were distributable in England, was termed by the Attorney General "inconvenient and unreasonable, especially because many of the owners of lands there are inhabitants in England. Besides personal estates of persons dying intestate are hereby made distributable otherwise than they are in England, which may affect the interests of persons residing in England" (CSP, Col., 1704-s, #604; 2 Stat, at Large Pa., 492). In November, 1706, a 1693 New Hampshire Act for the Settling and Distribution of Intestate's Estates (1 Laws of NJJ., 566), together with a 1701 additional act thereto (ibid., 683), was disallowed (2 APC, Col., p. 847). The earlier act which distributed realty as well as personalty among the intestate's children was re-

garded by the Attorney General as "not fit to be approved, it altering the descent of inheritances of person« residing in England, and contrary to the course of descents of inheritances in England, and it will be inconvenient to divide plantations" (CSP, Col., 1706-8, # 3 6 9 ) . But note that a 1 7 0 ; Pennsylvania Act for the Better Settling of Intestates Estates (2 Stat, at Large Pa., 199) which contained the objectionable features of the earlier act was seemingly brought to the notice of the Board of Trade but not disallowed (CSP, Col., 1708-9. # 4 8 1 , 7 1 7 ; 1CTP, 1708/9-14/5, 28, 36. 37). In New Hampshire a 1718 Act for the Settlement and Distribution of the Estates of Intestates (2 Laws of NJi., 29;) also embodied provisions formerly found objectionable. This act does not appear to have been laid before the Board of Trade. But cf. the editorial note to the act, ibid.; Russell, op. cit., 159. 84 By this statute passed at the October, 1699, session of the Connecticut General Assembly (see 4 Pub. Ree. Col. Conn., 306) the Court of Probates after allowance of "debts, funeral and just expenses of all sorts," was "fully impowered to order and make a just distribution of the surplussage, or remaining goods

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these p r o v i s i o n s w e r e a d o p t e d f r o m a 1 6 9 2 M a s s a c h u s e t t s statute to the s a m e e f f e c t , 6 5 t h e act w a s m e r e l y d e c l a r a t o r y of the c u s t o m already existent i n the c o l o n y b y w h i c h intestate estates w e r e d i s t r i b u t e d . 6 6 P r e s u m a b l y

the

Con-

necticut legislative intent w a s the s a m e as m o t i v a t e d p a s s a g e of the earlier M a s s a c h u s e t t s l a w — c o n c e r n f o r the y o u n g e r c h i l d r e n . 6 7 L e t us n o w e x a m i n e the f a c t s in the instant cause. In 1 7 1 7 W a i t W i n t h r o p , of the w e l l - k n o w n N e w E n g l a n d f a m i l y , died intestate in B o s t o n , l e a v i n g a s o n J o h n a n d a d a u g h t e r A n n e m a r r i e d to o n e T h o m a s L e c h m e r e , a m e r c h a n t of B o s t o n . I n a d d i t i o n to p e r s o n a l t y , W a i t W i n t h r o p d i e d possessed of realty i n the three colonies of M a s s a c h u s e t t s , C o n n e c t i c u t , a n d N e w F e b r u a r y , 1 7 1 7 / 8 , letters of a d m i n i s t r a t i o n w e r e g r a n t e d to J o h n

York.68

In

Winthrop

a t a C o u r t of P r o b a t e s i n N e w L o n d o n , C o n n e c t i c u t , a n d a / 3 , 0 0 α b o n d w a s e n t e r e d into, c o n d i t i o n e d u p o n m a k i n g a true i n v e n t o r y of the

personalty

of deceased, e x h i b i t i n g the s a m e into the registry of the C o u r t of P r o b a t e s , a n d a d m i n i s t e r i n g the s a m e a c c o r d i n g to l a w . 6 9 F o r v a r i o u s reasons s u c h inand estate of any such intestate, as well real as personal, in manner following: That is to say, one third part of the personal estate to the wife of the intestate (if any be) for ever, besides her dower or thirds, in the housing and lands, during life, where such wife shall not be otherwise endowed before marriage; and all the residue of the real and personal estate by equal portions, to and among the children, and such as shall legally represent them, (if any of them be dead) other than such children, who shall have any estate by settlement of the intestate in his life-time equal to the others shares; children advanced by settlement or portions not equal to the others shares, to have so much of the surplusage, as shall make the estates of all to be equal; except the eldest son then surviving (where there is no issue of the first-born or of any other elder son) who shall have two shares, or a double portion of the whole; and where there are no sons, the daughters shall inherit as co-partners" (Acts and Laws of the Colony of Connecticut [ 1 7 0 2 ] , 60). 65 See ι Talcott Papers, 148. This act was An Act for the Settling and Distribution of the Estates of Intestates (1 Acts and Res. Prov. Mass. Bay, 43). The language of the two statutes as to this specific clause is virtually identical, mutatis mutandis. 68 See 3 Pub. Ree. Col. Conn., 396, 400; 4 ibid., 48, 57-58, 70, 78, for controversy arising from distribution made according to this custom. See also the observations of Gershom Bulkeley on the custom in his Will and Doom, 3 Conn. Hist. Soc. Coll., 1 1 7 - 1 8 , 130, 226, 228

and in the Wyllys Papers, 21 Conn. Hist. Soc. Coll., 340-47. By a 1638 order of the General Court in cases of intestacy the court was to "divide the estate to wiefe (yf any be,) children or kindred, as in equity they shall see see [//>] meet" (1 Pub. Ree. Col. Conn., 38). The provision is repeated in the 1650 Code of Laws (ibid., 553). For early distributions, see ι ibid., 45-46, 1 3 5 - 3 6 , 168, 463, 487, 491. From these distributions it appears that a uniform double portion to the eldest son was a later development. 67 The preamble stated: "Whereas estates in these plantations do consist chiefly of lands which have been subdued and brought to improvement by the industry and labour of the proprietors, with the assistance of their children, the younger children generally having been longest and most serviceable unto their parents in that behalf, who have not personal estates to give out unto them in portions or otherwise to recompence their labour" (1 Acts and Res. Prot'. Mass. Bay, 43). 68 7 Pub. Ree. Col. Conn., 572. A will had been drafted in 1 7 1 3 , but was left unexecuted; this may have been due to the financial intanglements of son-in-law Lechmere. On the other hand Winthrop must have known that at least in Massachusetts by statute his daughter would take one-third of his realty upon intestacy (6 Winthrop Papers, 5 Mass. Hist. Soc. Coll. [6th ser.j, 367). 60 Letters of administration were granted of the goods, chattels, and credits of the intestate. The bond entered into by Winthrop and one surety to Richard Christopher, then judge of

JUDICIAL A N D LEGISLATIVE REVIEW ventory or account was never exhibited,70 but no complaint was made o£ this lapse, nor was dissatisfaction with the administration expressed until 1723. 7 1 In that year proceedings were commenced by Lechmere in the Massachusetts courts for production of an inventory and account. These proceedings have no importance for our purposes,72 except that they produced from Robert Robinson, counsel for Winthrop in the Massachusetts proceedings, the opinion that all the lawyers in the colonies could not prevent Lechmere et ux. from recovering a share of the realty in the colonies of Massachusetts and Connecticut under the statutes governing intestacy in the respective colonies.78 Attempts at compromise having failed, 74 Lechmere, in July, 1724, applied to the Connecticut Court of Probates claiming in the right of his wife a portion of the Connecticut realty left by Wait Winthrop and alleging that he was kept out of possession by John Winthrop's failure to inventory and administer the same. Winthrop being thereupon summoned to appear and show cause, exhibited an inventory of the intestate's personal estate and insisted that administrators had nothing to do with realty, that he was in possession the Court of Probates, was conditioned upon making a true inventory of all said goods, chattels, and credits and exhibiting the same into the Probate Court registry on or before the second Tuesday in August, 1 7 1 8 . It was further conditioned upon administering the same according to law and making a true account thereof at or before the second Tuesday in April, 1 7 1 9 , and paying the balance of such account as the Court should appoint. Winthrop took out similar letters of administration in Suffolk County, Massachusetts, and gave a like administration bond to Judge Sewall of the Probate Court, Lechmere and one Abiel Walley being bound as sureties (6 Winthrop Papers, 445)· 70 Winthrop alleged that he had advanced more money to and on account of Lechmere than the share of the personalty of his wife Anne come to Winthrop's hands amounted to; that Lechmere et ux. had taken possession of most of the said personalty and had not required the exhibition of any inventory or account; that all debts had been discharged with one exception where the obligee declined receiving the principal of a bond (7 Pub. Ree. Col. Conn., 5 7 2 ) . 71 Apparently the parties were on familiar terms until at least May, 1 7 2 3 . But before August of that year a quarrel occurred, the reasons for which are obscure, and the courts were resorted to (6 Winthrop Papers, 404-6). 72 Ibid., 4 0 5 - 6 , 409, 4 1 1 - 1 3 , 4 1 9 - 2 0 , 4 3 6 - 3 8 , 446-47. See also 1 2 ¡our. House Rep. Mass.

( 1 9 3 1 ) , 2 3 , 62, wherein it appears that Winthrop submitted to a distribution upon intestacy under the 1692 Massachusetts act, which as we have seen was practically identical with the Connecticut act of 1699. 73 Robinson stated that "these laws having beene made for the convenience of these collonics at their first settlement and having had the royal assent, lands are made personalities and as such lyable to be divided where a person dies seizd and intestate as cattle, sheep, or any other personal estate whatsoever, and to try it here is to no purpose, for should it be otherwise, not only the laws but the whole constitution of both provinces would be unhinged and oversett; and to try it in England cannot be; first, because of the royal assent allready passd, both in Connecticut and this province, and next, because the tryal of tytle of land is local and must be tryd where the land lyes, and without a spedai verdict found (which is not to be obtaind) they have allready declared they will not try tytles in England" (6 Winthrop Papers, 4 : 2 - 1 3 ) . But Winthrop may not have trusted the advice of Robinson; see ibid., 406, 427. Robinson was correct in his assertion that the Massachusetts act had been confirmed in England (see infra, p. 565), but in error in his allegation as to the Connecticut act. 74 See ibid., 408-9. Later in March, 1 7 2 4 / 5 , a movement to have the matters in difference referred to five arbitrators was rumored {ibid., 4 1 7 ; cf. ibid., 4 1 9 ) .

JUDICIAL A N D LEGISLATIVE REVIEW thereof as heir at law according to the laws of England, and that realty was not cognizable by a Probate Court. T h e court refused to accept the proffered inventory as a true inventory, declaring that the administrator's objections were against the known laws of the colony and the constant practice thereon. 75 Winthrop thereupon appealed to the next Superior Court; at the same time, upon motion of Lechmere, liberty was given the moving party to put in suit the administration bond at a Special County Court in August. Suit was brought accordingly in this court; Winthrop, appearing, objected that the said court had been abolished by act of assembly. Lechmere replied that the act cited had no relation to special courts, and the court, overruling the plea in bar, adjudged that the action should proceed. Winthrop again appealed from this determination. 76 At the same time suit was brought in the same court by Lechmere in his name and that of Walley as sureties on the Massachusetts administration bond, on the ground that Judge Sewall had recovered judgment against them for nonperformance of the bond conditions. The same plea in bar was offered and overruled, and Winthrop in like manner appealed. 77 Simultaneously, in this court Lechmere et ux. brought four partition suits to divide lands of the intestate in the possession of Winthrop, with the same result as in the other two suits.78 The appeal from the July 28 Court of Probates sentence disallowing the inventory exhibited by Winthrop was entered on the records as withdrawn. 79 In the appeal from the judgment in the action on the Connecticut administration bond, the Superior Court declared that the act relied upon in the plea in bar did not repeal the clause in the law allowing Special County Courts and affirmed the jurisdiction of the Special County Court. Pleas in abatement were 7i

Ibid., 447-49; cf. ibid., 426. Ibid., 449-50; cf. ibid., 424-25. 77 MS Conn. Ct. Ree., 14 County Ct. Trials (New London), 1 1 5 (Conn. State Lib.). Winthrop alleged that Lechmere took advantage of the age of Judge Sewall, making him assert in the writ that inventory had never been given at the Boston Probate Court, whereas such inventory was exhibited before Sewall a few weeks after the decease of intestate (6 Winthrop Papers, 426). 78 MS Conn. Ct. Ree., 14 County Ct. Trials (New London), 1 1 6 - 2 0 ; 6 Winthrop Papers, 451-52. 79 MS Conn. Superior Ct. Ree., 1724-27, sub Sept. 22, 1724. Winthrop alleged in his Privy Council case that when the next Superior Court met he was confined to his bed and incapable of appearing or instructing counsel. Therefore, he petitioned the Court for an adjournment to the following court. The court record 70

entry purported that the parties had appeared in court and that petitioner withdrew his appeal, but Winthrop asserted that he had not appeared in court and that no person had been authorized to withdraw the appeal (6 Winthrop Papers, 452-53; cf. ibid., 425). In a letter to Cotton Mather, Winthrop said that this action "was perfidiously withdrawnc without my leave or knowledge by Read my attorney (who marryed Governor Talcott's sister), who in the beginning took a fee of ¿ 2 5 from me with promises as solemn as a man could make to serve me; but all he did for me was to withdraw my main action when I was sick a dying, assuring me that the administration bond action, as well as the rest, were continued upon my memoriali to the Court setting forth the impossibility of my appearing or instructing councell by reason of sickness; yet he suffered the action to be carryed against me in the most unheard of manner" (ibid., 426-27).

JUDICIAL A N D LEGISLATIVE

REVIEW

then offered, but not received. Since it appeared that the writ had never been legally served on W i n t h r o p , the court adjudged that the action should not proceed and awarded appellant costs. 80 In the suit on the Massachusetts bond the plea in bar was likewise overruled, a general demurrer w a s joined in, and judgment was given for respondents Lechmere and W a l l e y for ¿ 3 , 1 0 0 with costs. A review to the next Superior Court was prayed and granted on giving the usual security. 8 1 In the four appeals in the partition suits pleas to the jurisdiction were also overruled, general demurrers were joined in, and the Superior Court gave judgment for respondents in the several actions that partition be made of the lands in question. F r o m these judgments reviews were also taken to the next Superior C o u r t . 8 2 Later arguments of the colony were foreshadowed when distribution under the statute was justified as according to the custom of gavelkind. 8 3 O n e of these four reviews was argued at the Superior Court of M a r c h 23, 1 7 2 4 / 5 , when the court on demurrer was of the opinion that a declaration of the seisin of the ancestor and of the number of his children, or those w h o by law were to inherit, together with the proportions mentioned in the law, was insufficient to support the demand, the regulation whereof by the colony law w a s lodged with the Court of Probates. Judgment w a s thereupon given for appellant Winthrop with costs; the other three actions were continued to the 80

MS Conn. Superior Ct. Ree., ¡724-27, sub Sept. 22, 1724; 6 Winthrop Paperi, 453. On November 6, Winthrop submitted to Christopher another inventory of personalty, but it was not accepted (Diary of ]oshua Hempstead, ι New London County Hist. Soc. Coll., 149). 81 MS Conn. Superior Court Ree., 1724-27, sub Sept. 22, 1724; 6 Winthrop Papers, 453. 82 MS Conn. Superior Ct. Ree., 1724-27, sub Sept. 22, 1724; 6 Winthrop Papers, 453-54. 83 Winthrop related that "at this Court I was insulted by an adverse attorney, who trumpt up gavelkind uppon me, (which has so long been out of date by Act of Parleament and which the Charter knew nothing of,) and made a long flourish of words how I was but a coe-heir, etc." (ibid., 418). To this contention that lands in the colony descended according to the custom of gavelkind reply had long before been made by Gershom Bulkeley, circa 1691-92. This legalistic divine argued that: (1) no place could commence any custom within time of memory; (2) no chartered corporation such as Connecticut could commence a custom contrary to the common law; (3) such corporation could make no law bind-

ing inheritances; (4) estates of inheritance granted under the Great Seal of England descended according to the course of the common law, citing the Case of the Earl of Derby, 2 Anderson 1 1 5 ; (5) gavelkind was a constant custom, whereas in the colony distribution was varied at the court's pleasure (this objection was obviated by the 1699 act); (6) under gavelkind sons divided to the exclusion of daughters and brothers to the exclusion of sisters, but in the colony females were frequently included in distributions; (7) under gavelkind sons inherited equally, in the colony the eldest son had a double share, at the court's pleasure; (8) the rights of the widow under the colony practice varied from gavelkind. Therefore Bulkeley concluded that "this practice thus is not according to the nature of gavelkind, but is a mixture of the judiciall law of Moses, and of the common law of England, with a smacke of the custome of gavelkind; something of each of them, and really none of them, and all without good warrant; and so is neither flesh nor good fish" (Wyllys Papers, 345"47)·

JUDICIAL A N D LEGISLATIVE REVIEW next court and then withdrawn. 84 The review in the Massachusetts bond action coming before the Superior Court on September 28, 1725, appellant waived his demurrer and pleaded the general issue. Issue being joined and witnesses examined, the jury brought in a general verdict for appellant, upon which judgment was given with costs.85 Having exhausted the ordinary remedies, Lechmere, in April, 1725, petitioned the General Assembly to set aside the judgments given and to grant a new trial wherein the partition actions might be well supported despite the exposition of the Superior Court upon the law. 86 Ordered by the assembly to answer, Winthrop replied that nothing in the petition merited interposition by the assembly.87 But the assembly, in May, resolved that relief ought to be had in such probate cases by a new grant of administration, exhibition of an inventory of the whole estate, and a distribution made according to the rules of the law upon the whole. 88 Winthrop, again in June, exhibited in the Court of Probates an inventory of all personalty which had come into his hands, reiterated his former contentions as to the realty and the Court of Probates' jurisdiction thereof, and offered an oath that the inventory comprised the whole personal estate of intestate. The court, however, insisted upon an oath that the inventory comprised the whole of the real property as well as personal,89 but Winthrop refused to comply therewith. Whereupon by a June 29, 1725, sentence the court rejected the proffered inventory, and Winthrop ap84 MS Conn. Superior Ct. Ree., i y24-27, sub Mar. 23, 1 7 2 4 / 5 , Sept. 28, 1 7 2 5 ; 6 Winthrop Papers, 454. 85 MS Conn. Superior Ct. Ree., 1724-27, sub Sept. 28, 1 7 2 5 ; 6 Winthrop Papers, 454-55. 86 The petition set forth the partition suits for one-third of the intestate's estate which was alleged to have descended to John and Anne as the only children and co-heirs of the intestate; that on demurrer the Supreme Court was of the opinion that the regulation and settlement of intestate estates was lodged with the Court of Probates and gave judgment against Lechmere, so that petitioners were never likely to recover their one-third without the aid and relief of the assembly. This was either because of the insufficiency of the direction of the colony laws already made or by the court's exposition thereof. It was alleged first that there was no remedy at common law as appeared by the partition suit judgment. Secondly, there was no remedy in the Court of Probates, since Winthrop had not presented any inventory of the realty and refused to do so. Nor could relief be obtained by forfeiture of the ¿ 3,000 administration bond, that sum

falling far short of one-third of the estate. Since the colony laws gave petitioners a right to one-third of the estate, they conceived it not consistent with the honor and dignity of the colony that some indisputable method of obtaining their rights had not been or would not be provided {ibid., 455-56; MS Conn. Archives, 1 Misc., # 1 4 9 ) . See also 7 Pub. Ree. Col. Conn., 573. 87 Winthrop stated that no error was assigned, no new evidence alleged, nor any matter of equity demanded, nor anything alleged wherein the law of the colony could not relieve (6 Pub. Ree. Col. Conn., 525). 88 Ibid., 525-26. It was also resolved that the petition should abate and that defendant recover costs of ¿1. Winthrop asserted that the speaker of the assembly was attorney for Lechmere in these causes (6 Winthrop Papers,

457)· 89

The court informed Winthrop that the 1699 act directed all administrators of intestate estates to make an inventory of all the estate of the deceased, as well movable as immovable

(ibid., 457-58)·

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pealed therefrom to the Superior Court. While the appeal was pending Lechmere commenced proceedings during August in the Court of Probates to have administration granted him of the intestate's estate, but Winthrop, summoned to show cause, successfully insisted upon the pendency of the appeal. From this allowance Lechmere in turn appealed to the Superior Court. 90 On September 28, 1725, the Superior Court, on hearing Winthrop's appeal, declared that real as well as personal estates were ordered to be inventoried by the colony law and that the Courts of Probates should be guided thereby, despite the fact that under the laws of England realty was not inventoried. It was then ordered that Winthrop should not be admitted to evidence to the inventory by any other oath than that which was agreeable to the laws of the province, that the sentence should be affirmed, and that appellant should be condemned in costs. In the appeal of Lechmere the Court of Probates' sentence was also affirmed. From both sentences reviews to the next Superior Court were prayed and allowed. 91 Upon review of Winthrop's appeal on March 22, 1725/6, the Superior Court affirmed the former sentence and condemned appellant in costs. When Lechmere's appeal was then reviewed, the pending appeal having been determined, it was adjudged that the former letters of administration to Winthrop be vacated and that Lechmere et ux. be granted letters of administration. 92 Winthrop thereupon allegedly prayed and was denied an appeal to the King in Council from both sentences.93 T o prevent any action until the case could be laid before the King in Council, Winthrop entered a protest against granting letters of administration to any other person and also against any division of the realty of the intestate.94 Despite this protest the Superior Court, on the same March 22, granted letters of administration of the intestate's estate to Lechmere et ux. and took the usual adminis80 Ibid., 457-59. In commencing these proceedings Lechmere relied upon the assembly resolution that this was the only proper remedy for establishment of his rights. 91 MS Conn. Superior Ct. Ree., 1724-27, sub Sept. 28, 1 7 2 5 ; 6 Winthrop Papers, 459-60. From one of the supporting affidavits on the later appeal to the King in Council it would appear that a conciliar appeal was refused from these sentences; see the affidavit of Tilley and Chapman (ibid., 4 7 1 ) . 92 MS Conn. Superior Ct. Ree., 1724-27, sub Mar. 22, 1725/6. 93 6 Winthrop Papers, 460-61. Winthrop alleged that the appeal to the King in Council "was in a contemptuous manner denyed him, though often demanded and insisted upon; the Court saying they were not under your

Majesties government, and their Charter knew nothing of your Majesty in Council), and that your petitioner might come and tell your Majesty that they denied him an appeal and bid him take evidence thereof, which your petitioner accordingly did." See ibid., 4 7 1 , for notice of the supporting affidavit taken before a justice in the colony. 84 Winthrop protested against "any proceedings or transactions of the said Court contrary to the laws of England, the full enjoyment of all liberties and immunities, benefit, right, and priviledge of which laws apperteined to your petitioner both by act of Parliament and by the royal Charter as a free and natural born subject of Great Britaine to all intents, constructions, and purposes whatsoever" (ibid., 461).

JUDICIAL A N D LEGISLATIVE REVIEW tration bond, but both letters and bond extended only to the personalty previously administered by Winthrop. 95 Lechmere, under color of these letters of administration, inventoried and appraised all intestate's realty and exhibited an inventory thereof before a Special Superior County Court of April 29, 1726. This court approved and ordered the inventory to be received as well as an account totaling ¿ 3 Φ · 9 * On May 12 Lechmere petitioned the General Assembly that no personalty had come to his hands to pay the said ^356 due from the estate for debts and administration charges and prayed that the assembly enable him to pay such amount by sale of lands. Despite a May 20 remonstrance by Winthrop and a demand for an appeal to the King in Council, the assembly granted Lechmere power to sell such lands and ordered a bill brought in for that purpose. 97 Winthrop thereupon again protested to the Governor and Company against any illegal proceedings, especially granting power to a pretended administrator to sell part of the realty to meet debts of the intestate, as they would answer for the same before the King in Council, 98 but this protest was regarded as a contempt by the Governor and Company, which on May 25 ordered Winthrop brought before the bar of the assembly to answer. 99 An act was then passed empowering Lechmere to sell as much of the realty as might be sufficient to discharge the debts and necessary costs. 100 Brought before the bar of the assembly, Winthrop represented the hardships of his case and that he would lay the whole proceedings before the King in Council. This was treated as a contempt, and Winthrop was committed to the custody of the sheriff. Given his freedom or making his escape after three days, Winthrop was fined £ 2 0 for his contempt. 101 Having been denied an appeal in the colony, Winthrop resorted to England and presented a petition to the King in Council on January 16, 1726/7, for leave to appeal from the two Superior Court sentences of March 22, 1725/6, 05 Ibid., 461-62. The bond taken from Lechmere and sureties was in ¿ 30,000 penalty. The Superior Court judges who took it were allegedly all members of the assembly. See also the inference drawn in Adams, The Emancipation of Massachusetts ( 1 8 9 3 ) , 299. 96 MS Conn. Superior Ct. Ree., 1724-27, sub April 29, 1726. It was alleged by Winthrop that the Superior Court could not by law be held specially, being confined by act of assembly to stated times of sitting. Further, that the court had no power to receive such inventory (6 Winthrop Papers, 462). 97 MS Conn. Archives, 1 Misc., # 1 5 5 - 6 6 . The appeal requested was from the two sentences of the Superior Court which were alleged to break in upon Winthrop's inheritance and, contrary to the laws of England, defeat the heir

at law of his just right (6 Winthrop Papers, 463). The remonstrance was dismissed as not complying with the common course of justice in the colony—that is, making application to the assembly when judgments of the Superior Courts were grievous (ibid., 464). See also 7 Pub. Ree. Col. Conn., 20. 98 MS Conn. Archives, 1 Misc., # 1 5 7 . »»Ibid., # 1 5 8 . 100 7 Pub. Ree. Col. Conn., 37. Cf. 6 Winthrop Papers, 464-65. 101 Ibid., 465-66; MS Conn. Archives, 1 Misc., # 1 6 1 . See 6 Winthrop Papers, 4 7 1 , for an affidavit as to the seemly behavior of Winthrop before the assembly. Compare the General Assembly version that Winthrop behaved himself "insolently, contemptuously, and disorderly" (7 Pub. Ree. Col. Conn., 43-44).

JUDICIAL A N D LEGISLATIVE REVIEW in favor of the Lechmeres, and praying that the act empowering Lcchmere to dispose of the realty of petitioner might be repealed. It was also prayed that all proceedings upon new actions lately commenced against petitioner for rents and profits of the realty might be stayed until the King's further order. 1 0 2 Not resting content with a mere appellate approach in the litigation proper, Winthrop, a month later, presented a petition to the King in Council containing several articles of complaint against the Governor and Company of Connecticut and praying that their charter might be recalled for their great abuse of the powers vested in them. 1 0 3 Upon consideration of the petition for leave to appeal and upon hearing counsel for both parties the Committee reported on February 18, 1726/7, advising allowance of the appeal upon giving the usual ¿ 1 0 0 sterling security. 104 At the same time the Committee advised that a copy of Winthrop's complaint be sent to the Governor and Council to return an answer in writing before December i . 1 0 5 The respective Orders in Council embodying these reports were issued on March 28,1727, and Winthrop immediately gave the required security. 108 On May 13, 1727, Winthrop's petition and appeal praying for a short day for a hearing was referred to the Committee to hear and report thereon. 101 In November, Lechmere memorialized the Committee that the hearing be put off till next June in regard that memorialist was lacking several papers and proceedings from New England, but Winthrop's solicitor offering to supply copies thereof, the Committee peremptorily ordered the appeal heard on December 14. 1 0 8 On December 16 the appeal came on for a hearing before the Committee, and counsel for appellant, Attorney General Yorke and Solicitor General Talbot, were heard. 10 ® io* pc 2/89/297; 6 Winthrop Paperi, 46667. It was also prayed that the governor of Massachusetts be directed not to suffer any division or sale to be made of intestate's estate in that province. For the lately commenced actions see ibid., 472; MS Conn. Superior Ct. Ree., 1724-17, tub Sept. 27, 1726. ι» 3 PC 2/89/319. This petition is to be found in PC 1/48 and is calendared in 6 APC, Col., #367. Consisting of twenty-nine articles, twenty-one to twenty-seven were repetitive of the allegations set forth in the petition for leave to appeal from the various proceedings commenced by Lechmere. 1°« PC 2/89/330. 105

PC 2/89/330-31. Service of the order and petition of complaint on Jeremiah Dummer, the colony agent in London, was to be deemed sufficient service. But on February 13 Dummer had written Governor Talcott that he had just received a summons from a public solicitor to attend at Whitehall on the next Council day

and answer the complaint then to be exhibited. He asked for a speedy remission of at least ¿ 1 0 0 , since every hearing would cost him 40 guineas and the other side, which employed solicitors and attorneys, a great deal more (1 Talcott Paperi, 90). 108 PC 2 /99/33S-39; 6 Winthrop Paperi, 467. 1« PC 2/89/357. 108 PC 2/90/186. It was alleged by appellant that no affidavits were made in support of the motion nor any particular papers designated (6 Winthrop Paperi, 468). In the colony Lechmere had moved for a rule of distribution, but being informed of the appeal and complaint the court advised thereon (MS Conn. Superior Ct. Ree., 1724-27, tub Sept. 26, 1727). A further motion on March 26, 1728, met with a continuance (ibid., tub March 26, 1728). 108 PC 2/90/193. The members of the Council sitting on the appeal, according to the Privy Council register, were the Archbishop of York, the Lord President (Duke of Devonshire), the

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T h e argument for appellant, as presented in the printed case, fell under many heads, not all pertinent to the issue on appeal. In the first place, appellants waived as grounds for reversal any mere informality or irregularity in the proceedings below, since Connecticut procedure was conceded to be less strict than that of E n g l a n d . 1 1 0 Although admittedly not in issue, argument was advanced to show that the Special County Courts before which several actions in the cause were tried were unauthorized by any statute then in f o r c e . 1 1 1 In the same vein it was conceived to be immaterial to enter into an extended examination of the two administration bond actions and the four partition actions, since the final determinations thereof favored appellant. But these actions were dwelt upon at length to show the extraordinary manner in which appellant had been proceeded against and the injustice of the subsequent assembly and Superior Court proceedings. 1 1 2 T h e chief point, therefore, to be considered was whether the subsequent proceedings of the assembly and Superior Court were agreeable to the charter and rules of law and justice or reconcilable with reason. 1 1 3 It was argued that under the statute law of the colony no appeal lay to the assembly from the Superior Court and, further, that such appeal could not lie, since the charter vested the assembly with no judicial power. T h e only appeal possible from the Superior Court was to the K i n g in Council by inherent right of the crown. Secondly, Lechmere having admitted that under the laws of the province no relief could be obtained by common law or in the Court of Probates, the interLord Privy Seal (Lord Trevor), the Earl of Findlater, the Earl of Marchmont, Lord Torrington, and Lord Chief Justices Raymond and Eyre. The meeting was confined to hearing this appeal. At the second day of hearing the same councilors attended with the exception of Marchmount and Torrington; see PC 2/90/195. Winthrop, writing to his wife in March, 1 7 2 7 / 8 , asserted that there were also present at the hearing the Lord Chancellor, Sir Robert Walpole, the Master of the Rolls, the Archbishop of Canterbury, the Bishop of London, "and a full Councell Board; and a very numerous auditory of knights and gentlemen, who with one voice cryed, Shame on the New England Collony's" (6 Winthrop Papers, 5 1 0 ) . 110 Ibid., 473. 111 The authority for holding the Special County Courts presumably derived from a clause in an Act for Holding of Courts and appointing the times and places for the same; see Acts and Laws of the Colony of Connecticut ( 1 7 0 2 ) , 22-24. If the basis of the courts were this act, it was claimed that such courts were

limited to extraordinary occasions which could not be pretended here. But this act was alleged to have been repealed by an act of 10 Anne entitled An Act for establishing Superior Courts and altering the times of holding the County and Inferior Courts in the several Countys of this Colony (ibid., 473-76). For the further charge of arbitrary conduct of these special courts, see Article 20 of Winthrop's complaint (6 AFC, Col., # 3 6 7 ) . 1r - 6 Winthrop Papers, 476. It was afterwards declared that the relation of the extraordinary steps taken against appellant in Connecticut very much assisted his case (2 Talcott Papers, 77)· 113 It was advanced that any possible objection to entering into the merits of the appeal on the ground that appeal should properly have been made to the assembly was overruled by the King allowing an appeal. Besides, the assembly was no court of judicature, judgments of the Superior Court were final, and all conciliar appeals had been from judgments of the Superior Court (6 Winthrop Papers, 494).

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position of the assembly was "very partial and unjust." Thirdly, that the assembly's resolution was unjust in that it set aside the determination of a court and coerced that court to come to a new determination, not warranted by law, in an ex parte manner. Fourthly, that this unprecedented assembly action altered the general law and the settled methods of justice. 114 As to the various court proceedings, it was contended that the letters of administration and the bond made no mention of realty; therefore the Court of Probates acted erroneously in not receiving the proffered inventory which admittedly was complete as to the personalty. Appellant Winthrop had duly discharged his duties as administrator; yet even if not so discharged, relief was not to be obtained in such unprecedented manner. Claims as to realty were triable at law and in no way affected administration. The granting of letters of administration and taking bond by the Superior Court was illegal and unprecedented, the matter properly belonging to the Court of Probates. The letters of administration granted to Lechmere and the bond taken from him did not extend to realty, and hence the inventory exhibited by Lechmere ought not to have been received, as it consisted wholly of realty. Further, the authorization of Lechmere to sell lands of the intestate was against the common and statute law of England, destructive of the liberty and property of the subject, against reason and as such, contrary to the royal charter of the province.115 Next, attention was centered on the act for settlement of intestate estates upon which it was asserted respondents rested their whole case. In the first place it was contended that the act was obsolete.116 If not obsolete, it was then insisted that the act was void as unwarranted by the charter. By this instrument the legislative power was confined to making laws which were wholesome and reasonable and not contrary to the laws of England. 117 By the common law of England upon intestacy all realty descended to the eldest son of the intestate. It was urged in addition that under the charter the soil was held of the King as of the manor of East Greenwich in the county of Kent in free and common socage; therefore an estate of inheritance should descend according to the common law. 118 The common law of England prevailed in ibid., 476-78. Ibid., 479-85. Minor points advanced were that the Superior Court's allowing Lechmere to sell land to answer ¿go costs when he only demanded ¿ 3 8 / 7 / 4 was unjust and illegal and that Lechmere's suits against appellant for rents and profits of the realty in question were uniust and vexatious. 116 It was asserted that the act was made in the infancy of the province and was long since out of use or regard; further, that there was not the least proof by Lechmere that the act 114

115

was in force or practiced at the present time in Connecticut (ibid., 486-87). 117 See 1 Thorpe, Federal and State Constitutions, 533. 118 6 Winthrop Papers, 487-88. The counter contention has been made that this tenure clause in the charter extended gavelkind, the custom of Kent, to the colonies. See citations collected by Morris, Studies in the History of American Law (1930), 106. It has been advanced that this contention is untenable, since the charter expressly defined the tenure as

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all the plantations, 119 and it was against reason, as well as law, that a daughter should be co-heir with an only son. Therefore, it was urged that the Connecticut law governing intestacy was null and void as contrary to the laws of the realm, unreasonable, and against the tenor of the charter. 120 socage, and socage was not gavelkind ( Plucknett, Book Review, j New England Quarterly, 575). There is some support for this view that gavelkind was a separate tenure (see Robinson on Gavelkind [5th ed.], 6 - 7 ) , but there is also evidence that gavelkind was regarded as a species of socage tenure (see Launder v. Brooks [Cro. Car. 5 6 1 ] ; Wiseman v. Cotten [ 1 Sid. 1 2 5 , 1 2 7 ] ) . More telling arc the cases that a custom could not be created by patent (see Robinson on Gavelkind, 55). See also the discussions in Cheyney, The Manor of East Greenwich, a A H R 2 9 - 3 5 ; Carr, Our Manor of East Greenwich, 29 LQR 349; Barnes, Land Tenure in English Colonial Charters of the Seventeenth Century, in Essays in Colonial History Presented to Charles McLean Andrews ( 1 9 3 1 ) , 4; Rider, The Meaning of the Phrase "The Manor of East Greenwich in our County of Kent" in the Charter of Rhode Island in 1663 (n.d.), passim; 2 Andrews, Colonial Period, 139; Haskins, Gavelkind and the Charter of Massachusetts Bay, 34 Trans. Col. Soc. Mass. 483. 118 6 Winthrop Papers, 488. T o estimate the validity of this contention it is desirable to refer the reader to the discussion in Chapter VIII of the doctrines concerning the extension of the laws of England to the colonies. Note also the fact that in a 1 7 2 2 Privy Council Memorandum (2 Peere Williams, 75) it was said to have been established upon appeal to the King in Council from the plantations that in a new and uninhabited country settled by English subjects, the laws of England governed, the settling subjects carrying their laws with them. In a conquered country, the King could impose such laws as he pleased. In such conquered countries the laws and customs thereof maintained, unless contrary to religion or malum in se or silent; in such cases the laws of the conquering country prevailed (Peere Williams was not published until 1740). In contrast with the Privy Council doctrine is a 1720 opinion by Richard West, counscl to the Board of Trade, where the distinction beween an uninhabited and a conquered country is omitted. West was of the opinion that "the common law of England is the common law of the plantations, and all statutes, in affirmance of the common law, passed in England, ante-

cedent to the settlement of any colony, are in force in that colony, unlesse there is some private act to the contrary" (CSP, Col., 1J2021, # 1 1 7 ; 2 Chalmers, Opinions, 202). Compare the added sentence in 1 ibid., 195, viz., "Let an Englishman go where he will, he carries as much of the law and liberty with him, as the nature of things will bear." Sec also the 1724 opinion of the crown law officers, Yorke and Wearg (ibid., 220). For further discussion of these views see Campbell v. Hall (20 Howell, State Trials, 239); Goebel, The Struggle for the Falkland Islands ( 1 9 2 7 ) , 99 et seq. The question, then, is whether Connecticut was to be considered as a conquered or an uninhabited colony. We have seen discussion of the question earlier in the Connecticut-Mohegan Indian controversy (supra, p. 441). The "whereas" clause of the colony charter which affords as good an answer as any relates that "the same colony, or the greatest part thereof, was purchased and obtained for great and valuable considerations, and some other part thereof gained by conquest," 1 Thorpe, Federal and State Constitutions, 529. But then difficulty arises in the application of the juristic concepts of "conquered" and "uninhabited" to the actualities of the settlement of Connecticut (see 2 Andrews, Colonial Period, cc. 111-v). Since for the most part the machinery of settlement was the purchase of lands from the Indians (see De Forest, History of the Indians of Connecticut, 83, 162-67, 1 7 5 - 7 7 , 1 8 2 - 8 3 ) , it is difficult to see how such settlement fits into the category of either "conquered" in fact or "uninhabited." It is probable that by "uninhabited" was then meant countries populated by aborigines only, since no important countries settled by English subjects were "uninhabited" in the literal sense. Sec argument of counsel Wallace in Campbell v. Hall (op. cit., 280) ; Forsyth, Cases and Opinions on Constitutional Law (1869), 17, 20. But if Virginia was by a legal fiction regarded as conquered (supra, p. 470), was Connecticut any less so? However, it would seem that the weight of authority inclined in the direction that the common law of England was, by the charter, made the standard to which the laws of Connecticut must conform. 120 6 Winthrop Papers, 488.

JUDICIAL A N D LEGISLATIVE REVIEW It was contended that since there was no charter provision directing that the laws of the colony be laid before the King in Council for approbation or disallowance, there was no way to avoid laws but by seeing whether they were agreeable to the powers of the charter. If not thus agreeable, they could not be considered as laws at all, since a formal repeal of such laws could be had only by voiding the charter. 121 Then it was anticlimactically argued that the law was not only contrary to the charter, but it conflicted with other laws of the province. 122 Another point pressed throughout was the manifest intent of the intestate and his brother that appellant should succeed to the entire realty. 123 On information that respondents would place reliance upon v. Winthrop,

Palmes

the earlier conciliar appeal, appellant distinguished the instant

case from the proceedings in the earlier cause. 124 Upon this argument appellant prayed for relief in sevenfold form. 1 2 5 On December 20 the Committee continued the hearing of the appeal and respondent counsel were called in and heard. 126 It is possible to give only a brief account of this argument, pieced out from scattered sources, and it may here be remarked that the case was not capably handled by respondent's counsel. 127 A s to the application of Lechmere to the assembly it was argued 121 ¡bid., 488. This contention of appellant is inaccurate. By an October n , 1705, Order in Council a Connecticut act directed against Quakers was disallowed as being contrary to the liberty of conscience indulged to dissenters by the laws of England, as likewise to the charter of the colony (2 APC, Col., p. 832). The disallowance was upon representation of the Board of Trade following complaint of the Quakers; see CSP, Col., 1704-5, # 1 0 6 0 , u o o , 1 1 5 3 , 1200, 1356, 1362; /CTP, 1704-8/9, 1 4 1 , 165. In the neighboring colony of Rhode Island, which also lacked a charter provision providing for legislative review, an act reladng to the admiralty jurisdiction was disallowed upon recommendation of the Board of Trade in January, 1703/4 (CSΡ, Col., 1704-5. #23. 5 1 ) . The Board of Trade had questioned the Attorney General whether passage of the act might not be a ground for forfeiture of the charter, "there being no reservation of power in the crown by the charter of that colony for repealing the acts made by them" (ibid., 17023, # 1 3 4 8 ) . Attorney General Northey advised only an expression of the royal displeasure, since the act was provisional until such pleasure was known (ibid., # 1 4 1 5 ) . Yet the contention of appellant is supported by a 1733 Board of Trade representation to the House of Lords; see 2 Talcott Papers, 447. 1=2 6 Winthrop Paperi, 488-90.

12

* Ibid., 442-45. 491· Ibid., 492-94. For discussion of the earlier case see supra, pp. 140-41. 1 2 i Appellant prayed: (1) that the resolve of the General Assembly of May, 1 7 2 ; , be declared null and void; (2) that the inventory of personalty tendered the Court of Probates by appellant be ordered accepted; ( 3 ) that the Superior Court sentence granting Lechmere administration be reversed, and Lechmere's action dismissed; (4) that the administration granted Lechmere be vacated, and the administration granted appellant be ordered to stand; ( s ) that the inventory and account exhibited by Lechmere be vacated; (6) that the General Assembly order empowering Lechmere to sell the realty and the order of the Superior Court thereon be declared null and void; ( 7 ) that all Lechmere had done under the administration, together with the law for settling intestate estates, be declared void (ibid., 491-92). 128 PC 2/90/195. Willes and Booth were counsel for respondents (6 Winthrop Papers, 49495)· 127 2 Talcott Papers, 136; 13 Mass. Hist. Soc. Proc. (ist ser.), 100; MS Conn. Archives, 2 Misc., # 3 1 3 . Lechmere may have intended to rely upon the talents and influence of his brother, Lord Lechmere, quondam Attorney General (see 6 Winthrop Papers, 404), but the latter died six months before the appeal was 1,4

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that it was within the power of this body assembled as a General Court and not in a legislative capacity to make a law ex post facto.128

A s to the contention

of appellant that the act governing intestate estates was obsolete, respondents were not prepared with instances of its use or any common usage. 1 2 9 A s to the legislative power under the charter it was claimed that the colony possessed power to make all laws whatsoever; further, that peaceful government could not exist without laws relating to property. 1 3 0 It was also maintained that the colony did not have the same status as a corporation in England, which would be bound by the laws of England. A s to the question of repugnancy to the laws of England it was claimed that this limitation only extended to acts repealing statutes of England in which the plantations were mentioned. 1 3 1 A s to whether the laws of England were in force in the colony, it was insisted that the laws of England did not extend to the colony, unless by a particular act. 1 3 2 Upon consideration of the matter, the Committee reported to the Council Board on December 20, advising that the act for the settlement of intestate estates thould be declared null and void as contrary to the laws of England in making lands of inheritance distributable as personal estates and as not warranted by the charter of the colony. T h e three sentences rejecting the inventory exhibited by appellant because it did not contain realty as well as personalty of intestate should be reversed and set aside. Appellant should be permitted to exhibit an inventory of intestate's personalty alone, and the Court of Probates should be directed not to reject such an inventory for excluding realty. T h e March 22, 1725/6, sentence vacating letters of administration granted to appellant and granting letters to respondents should be heard (ibid., 495). The colony was not heard at all on the appeal (1 Τ alcoli Papers, 1 7 3 ) . 128 6 Winthrop Papers, 495. 128 Ibid. Ferdinand John Paris wrote in 1738 that "Mr. Winthrop's counsell boldly put it upon Mr. Lechmere's counsell to shew that the distributory Act had ever, once, been followed or carricd into execution in Connecticut; and they were so very poorly instructed that they did not in return, offer to shew that it had; which was giving a death's wound to their cause; whereas, if I am not much misinformed, there might have been given abundant testimony of its being daily carryed into use there" (2 Talcott Papers, 78). 130 6 Winthrop Papers, 495. Governor Talcott in May, 1728, stated that "the principal argument on Winthrop's side was our Government having no power by our Charter to make laws for the dividing property, and the descent of real estate etc" ( 1 Talcott Papers, 1 1 6 ) .

131 6 Winthrop Papers, 495. It also appears to have been argued that the restraint on making laws contrary to the laws of England was confined to "publick matters, trade, etc" (ibid., 496). Cf. the answer of Governor Talcott to the complaint of Winthrop stating that it was understood that the limitation of the charter referred only to acts made for the plantations and that the colony might make acts diverse from the common law of England, Wales, and Berwick-on-Tweed (6 APC, Col., # 3 6 7 ) . Cj. ι Talcott Papers, 152. In a later instruction to a colony agent it was stated that "the contrariety intended must be only to the laws made for the plantations, which opinion will be enforced by the statute made in King William's reign pleaded in Leachmere's case" (2 Talcott Papers, 427). Presumably the statutory reference was 7 and 8 William III, c. 22, s. 9. 132

6 Winthrop Papers, 496. Reliance was placed upon Blankard v. Galdy (4 Mod. 222).

JUDICIAL A N D LEGISLATIVE REVIEW reversed and set aside. T h e letters so granted, the inventory exhibited thereunder, and the approving order of April 29, 1726, should be vacated and set aside. T h e original letters granted to Winthrop should be established and ordered to stand; all costs paid by appellant should be repaid; the suit of respondents should be dismissed; and all acts and proceedings had under any of the aforesaid sentences should be discharged and declared null and void. T h e May, 1726, act empowering Lechmere to sell the lands should be declared null and void, as also the September 27, 1726, Superior Court order made thereunder. Finally, appellant should be restored to possession of any realty taken from him under any of the aforesaid sentences, and respondent should account for any rents and profits received during unjust detention thereof. 138 This report received conciliar approval and was embodied in an Order in Council of February 15,1727/8. 1 3 4 REACTION TO THE DECLARATION OF NULLITY

While these proceedings were taking place, the complaint, delayed in transmission, was received in Connecticut in September, 1727, and answer thereto dispatched. 135 In May, 1728, unofficial news of the outcome of the appeal was received in the colony, and Jonathan Belcher was authorized by the General Assembly to act as agent in England, alone or with Jeremiah Dummer ( w h o was in ill health), and likewise to appear in the colony's behalf before the K i n g or in any court in England in any matter or cause wherein the colony was concerned. 136 But in the following July this agency was revoked, when D u m mer informed the colony that it was uncertain whether Winthrop would prosecute his complaint and that he, Dummer, had recovered his health. 1 3 7 A t i" 7 Pub. Ree. Col. Conn., 576—78; 6 Winthrop Papers, 505-7. See the surprise expressed by solicitor Ferdinand John Paris at the declaration of nullity which "was not particularly prayed for in the petition of appeal, any otherwise than under the prayer for general relief." Paris was also struck with the fact that no reference of the act was made to the Board of Trade (2 Talcott Papers, 78). Paris may have had in mind disallowance or declaration of nullity upon legislative review. 1 3 4 7 Pub. Ree. Col. Conn., 578-79; 6 Winthrop Papers, 507-9. 1 3 5 On September 19, 1727, Talcott wrote that the complaint had been received but recently and that he hoped no advantage would be taken if the answer "which we have in the greatest haste imaginable drawn up, and sent by the first opportunity," should not arrive by December 1, the date set for the hearing (1

Talcott Papers, 94—97). A committee appointed by both legislative bodies had reported their answer to the complaint on the previous day (7 Pub. Ree. Col. Conn., 122). Cf. 1 Talcott Papers, 99-100. 1 3 8 7 Pub. Ree. Col. Conn., 185; Diary of Joshua Hempstead, loc. cit., 197. Talcott put the question to the assembly whether application should not be made to prevent, if possible, the declaration of the act for settling intestate estates to be void, or if the act were irrevocably voided, to procure a saving to estates already settled (1 Talcott Papers, 1 1 4 - 1 5 ) . The letter from Talcott to Belcher is at ibid., 1 1 5 - 1 7 . Some fear of scire facias or quo warranto proceedings is indicated by this appointment. For a discussion of the part played by colonial agents in this matter see Burns, The Colonial Agents of New England, 98-101. 1 3 7 7 Pub. Ree. Col. Conn., 191.

JUDICIAL A N D LEGISLATIVE REVIEW the same time the General Assembly, receiving the Order in Council in the appeal, resolved that the agent should be directed to make application to the K i n g that the act for settlement of intestate estates be continued in force and intestate estates be divided accordingly. 138 A committee was also appointed to search out necessary records and to instruct agent Dummer, both in defending against Winthrop's complaint and in procuring continuance of the above act. 13 » In October, 1728, because of the continued ill health of Dummer, Jonathan Belcher was reappointed colony agent with the same authority as previously. 140 A t the same time, all distribution of realty upon intestacy was halted until application to the King could be made for relief in the circumstances. 141 In some quarters the Order in Council was at first viewed with alarm as enunciating the principle that every colony law different from the comparable law of England was to be construed as contrary to the laws of England and therefore not warranted by the charter. 142 But upon further consideration it was hoped that the conciliar order was agreeable to the doctrine held in the colony that colonial laws were only contrary to the laws of England when "contrary to a law some way or other established or made for the plantations," and in this case the act was seen as contrary to the rule laid down in Earl of Athol v. Earl of Derby that lands held under the Great Seal should descend according to the common law. 1 4 3 Support for the act on the ground of its antiquity was considered and rejected; 144 public and imperial policy were also advanced to support the act. 145 Enforcement of the Order in Council as to lands sold under the act of May, 1726, was resisted by the purchasers thereunder, and both the purchasers and Winthrop's wife applied to Governor Talcott for relief in the situation. 14 " iss j t w a s alleged that by such action peace would be continued, a multitude of law suits prevented, and the colony further settled (ibid., 192). 139 Ibid., 192. In June, Deputy-Governor Law had been of the opinion that "our safety is in sitting still, unless any advantage might be in gaining the opinions of the Attorney General and Solicitor" upon certain points ( 1 Talcott Papers, 1 1 9 , 1 2 2 ) . 140 7 Pub. Ree. Col. Conn., 2 1 8 - 1 9 ; 1 Talcott Papers, 1 3 5 , 137, 139. Cf. 2 Talcott Papers, 416-18. 141 ι Talcott Papers, 174. Talcott, writing in July, 1730, stated that not one of some hundreds of intestate estates had been settled since the nullifying Order in Council (ibid., 203). 142 Deputy-Governor Law drew the further unwarranted conclusion that "no legislative power

was given, excepting only in such cases wherein the laws of England had not provided" (ibid., 120-21). 143 Ibid., 1 2 1 . For the case referred to, see 2 Anderson 115. 144 ι Talcott Papers, 1 2 2 - 2 3 . Rejection came when the law was found "to be of no ancienter date than 1699" (ibid., 1 1 9 ) . 145 For the former see ibid., 122. As to the latter, it was stated that "the natural tendency of disinheriting the younger brethren is the promoting manufactories" (ibid., 1 2 3 ) . Such promotion ran counter to imperialist policy; see Russell, op. cit., 1 1 8 - 1 9 . 146 MS Conn. Archives, 1 Misc., # 1 6 6 . Purchasers Douglass and Richards, who had paid £ 690 current money for some of the land and had received a deed from Lechmere, complained that Winthrop's wife had entered and

JUDICIAL A N D LEGISLATIVE REVIEW Thereupon, at the October, 1728, meeting of the General Assembly, it was resolved that as soon as Winthrop or his attorney certified to the colony secretary the bounds and quantity of the land detained, the secretary would grant a writ of habere facias possessionem directed to the proper sheriff to put Winthrop in possession of the detained land. This writ was accordingly granted on January 20, i728/9. 14T Returning now to the efforts of the colony to obtain relief from the nullifying Order in Council, in December, 1728, we find agent Belcher instructed as to the grounds for a reconsideration of the vacating of the act for the settlement of intestate estates. 148 In the first place, several arguments were proposed in support of the power of the colony government to make laws of selfgovernment under the charter. Preliminarily advanced was a prescriptive right based upon the uninterrupted practice of the colony for almost one hundred years. 149 Secondly, the body of colony laws had been twice laid before the King, and no exception had been taken thereto, despite the declaration of the first law therein that the people should be governed by the laws of the colony and in the absence thereof by the law of God. 1 5 0 This act, moreover, was agreeable to the rule of Blanlçard v. Galdy as to conquered or not uninhabited countries. 181 Thirdly, it was advanced that it would be inconsistent to grant cut timber on this land. They set forth the circumstances they were brought to by reliance on the act of assembly and inquired whether they should submit to the intruding acts or vindicate their title at law (1 Talcott Paperi, 1 3 1 33). On the other hand, Winthrop ux. prayed that the purchasers be restrained from cutting further timber and that she be put into possession following the tenor of the Order in Council (ibid., 1 3 4 - 3 5 ) . Compare the allegations of Talcott for royal consumption (ibid., 1 7 4 - 7 5 ) , rebutted by Winthrop in a conciliar petition of February 6, 1730/1 (6 APC, Col., #43»)· 1 4 7 7 Pub. Ree. Col. Conn., 2 1 7 ; MS Conn. Archives, 1 Mite., # 1 6 8 . In October, 1735, the purchasers or their executors were permitted by the General Assembly to bring suit on the bond, the cancellation of which had been the consideration given Lechmere for the lands now restored to Winthrop (8 Pub. Ree. Col. Conn., 1 7 - 2 0 ; cf. 7 ibid., 569). For the course of recalcitrance see MS Conn. Archive!, 1 Misc., # 1 6 9 - 2 1 4 . Winthrop refusing to pay the debt represented by the bond, the General Assembly in October, 1741, ordered that complainants recover the amount of the purchase sum and that execution issue for such amount (8 Pub. Ree. Col. Conn., 432-34). Execution

was granted Feb. 2, 1741/2. A further explanatory order of the General Assembly was necessary in October, 1744, as to the type of currency in which the debt was to be paid ( 9 ibid., 15, 6 2 - 6 3 ) . In May, 1747, upon a memorial of the executors of purchaser Douglass ¿ 3 0 0 in old tenor bills of credit was voted for the relief of the memorialists (ibid., 308). 1 4 8 Belcher was also instructed to answer the complaint of Winthrop, but in his o w n words, "my main errand to Great Britain in behalf of your colony is to get icverst the King's judgment in Council against law for settling intestate Estates, and to have the same allowed and approbated by his Majesty" (1 Talcott Papers, 160; cf. ibid., 163). Compare the draft of an address to the K i n g (2 Talcott Papers, 4 1 8 - 2 2 ) and the draft of instructions to Belcher (ibid., 422-31). 148 ι Talcott Papers, 143-44; see also ibid., 159· Ibid., 143. For the act referred to see A n Act for Securing the General Priviledges of the Inhabitants (Acts and Laws of Connecticut [1715], 1). 151 ι Talcott Papers, 143-44. The case (2 Salkeld 4 1 1 ) was interpreted as holding that "in a conquered country, the laws of equity and nations, [prevailed] till the conqueror had 150

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LEGISLATIVE

REVIEW

p o w e r to m a k e l a w s not contrary to the l a w s of E n g l a n d , if the l a w s of E n g l a n d w e r e already the l a w s of the c o l o n y . 1 5 2 T h e r e f o r e , it w a s h o p e d that the c o l o n y m i g h t be g o v e r n e d by the l a w s of equity as a c o n q u e r e d c o u n t r y , in a n y case until l a w s w e r e m a d e under the charter. T h e exception of acts of P a r l i a m e n t w h i c h specifically mentioned the plantations w a s r e c o g n i z e d . 1 5 3 F o u r t h l y , in only one case had the colony been directed to correct a l a w m a d e u n d e r the authority g r a n t e d by the c h a r t e r . 1 5 4 F i f t h l y , it w a s c l a i m e d that the legislative authority had been sanctioned by affirmation of g i v e n in the colony courts a c c o r d i n g to l a w s established

judgments

u n d e r such

au-

t h o r i t y . 1 5 5 L a s t l y , a n y contention that the charter only g a v e p o w e r to pass b y - l a w s w a s rejected as u n t e n a b l e . 1 5 6 C o m i n g , then, to the particular act in question it w a s u r g e d that the division of intestate estates p r o v i d e d f o r thereby h a d been a universal c u s t o m in C o n necticut a n d the other N e w E n g l a n d colonies since their b e g i n n i n g s . 1 5 7 F o l l o w i n g this appeal to antiquity, the reasonableness of the c u s t o m in relation to colonial conditions w a s d e m o n s t r a t e d . 1 5 8

Then

the inconveniences

en-

s u i n g f r o m the v a c a t i n g of the act w e r e d w e l t upon in a l e n g t h y c a t a l o g u e . 1 5 9 declared his laws." Under colonial conditions the Connecticut provisions for distribution upon intestacy were argued as "more equitable and just" than primogeniture ( i Talcott Papers, 148). Compare the language of the case relied upon "that in the case of an infidel country, their laws by conquest do not intirely cease, but only such as are against the law of God; and that in such cases, where the laws are rejected or silent, the conquered country shall be governed according to the rule of natural equity." li2 Ibid., 148. The same principle was also stated in different form, "that an authority to make the same law here that is in England, or one that is not contrary to it, does imply that till it is made, it can't be law here" (ibid., 149). 153 Ibid., 148. The same attitude was revealed in the answer to Article 9 of Winthrop's complaint (6 APC, Col., # 3 6 7 ) that the colony had "passed several laws absolutely repugnant and direcdy contrary both to the common and statute laws of England" (1 Talcott Papers, 152). See also the answers to Articles 1 5 and 16 (ibid., 1 5 4 ) . · 1M Ibid., 144. The force of this argument is dubious. 155 J Talcott Papers, 144, 159. Presumably the judgments referred to were those appealed to the King in Council in Palmes v. Winthrop and Hallam v. Winthrop; see supra, pp. 140-45, 149-50.

156

This rejection was based on two points: (a) the charter nowhere directed that administration should be by the laws of England; (b) the purported end of the charter could not be obtained by a power to make and repeal by-laws only (ibid., 148-49). See also the message of the House of Representatives to Belcher (ibid., 158-59) in which the additional argument was advanced that "it's the privilege of Englishmen, and the natural right of all men who have not forfeited it, to be governed by laws made by their own consent" 157 Ibid., 144, 153. Note mention of the presumed royal approval of the prototype Massachusetts act (ibid., 148, 1 5 3 ) . The House of Representatives wrote Belcher that "many laws of the same import in the neighbouring governments have been approved and confirmed at home" (ibid., 159). It is interesting to note that a 1 7 1 8 Rhode Island act (Acts and Laws RJ. [ 1 7 1 9 ] , 95) containing similar provisions to the Connecticut act was repealed a year after the conciliar order in Winthrop v. Lechmere (Acts and Laws RJ. [ 1 7 3 0 ] , 163). 158 ι Talcott Papers, 144-46. By this custom of dividing inheritances land was brought under cultivation and increase of population encouraged. 156 It was claimed that all settlements of lands left intestate and all alienations thereunder would be upset. Quarrels and lawsuits would abound; many lands would lie unoccupied;

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555

A s a form of estoppel, it was asserted that when the body of laws, including the act in question, had been laid before the Board of Trade thirty years earlier, no objection was found thereto, with one unimportant exception. 160 Lastly, came the reply to the contention that the law was contrary to the laws of England and thus not warranted by the charter. T o this contention it was prayed that no necessary colony law should be declared contrary to the laws of England when not contrary to some one type of English law—statutory, common, or customary—whether then in force or formerly in use when English circumstances paralleled present Connecticut conditions. 181 This prayer would leave room to justify the statute as consonant with descent under the law of gavelkind. 1 6 2 In addition to these general instructions regarding action to relieve the intestacy situation, instructions were given addressed to the specific articles of the Winthrop complaint, including the denial of appeals to the King in Council. 163 These instructions were apparently intended as an arsenal of arguments, not as directions for an attack, for they covered too many points of no particular weight and had none of the drive of a compact and well-reasoned case. They are redolent with the homespun philosophy of the county courthouse that any argument is a good argument. Shortly before these instructions to Belcher issued, agent Dummer, in London, was ordered by the Committee to lay before it the answer received from the colony. 164 An answer was offered, but the Lords, who were well acquainted with provincial forensics, rejected it as not the one received from the colony, but one drawn up in London. Dummer was therefore ordered shortly to lodge the original answer with the clerk of the Council. 165 After this answer was accordingly proffered, the Committee ordered laid before it many people, skilled only in husbandry, would be undone; creditors would be defrauded; the intent of intestates relying upon the 1699 a c t would be frustrated; the consequent decline of husbandry would affect commercial relations with other colonies and with Great Britain; population would decline; and increase of manufactories would be promoted (ibid., 14647). The first point was overstated, since settlements made previous to the 1699 act would not be affected by the nullification of that act. From the date of the act the "third, fourth, and fifth generation" had not been arrived at. 180 ibid., 148. ι01 Ibid., 149-50. 162 This possibility had been mentioned in the lower court proceedings (see supra, n. 83), but there is no evidence that it was urged upon appeal. In the draft of instructions to Belcher

it is stated that "if Bracton say true such a custom as our law has been in England" (2 Talcott Papers, 427). 163 For the instructional answers to Winthrop see ibid., 150-58. See supra, pp. 160-61 for the discussion of the denial of appeals. Compare the answer in PC 1/48 with the above. 184 This Committee action was motivated by a Winthrop representation that the agent had received the answer six months previous, but had neglected to lay the same before the King in Council (PC 2/90/390 [November 19, 1728]). In the same month Belcher wrote that Dummer had the answer for over a year, but had done nothing for the relief of the colony (1 Talcott Papers, 139). Talcott replied that the agent had never been called upon to answer Winthrop's complaint (ibid., 1 4 1 ) . lfi5 PC 2/90/398.

556

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the papers referred to therein. 166 This was done, and after copies were directed to be given to Winthrop, the papers were ordered to be returned to Dumme:.1" Matters stood thus in April, 1729, when Belcher arrived in England, with Winthrop allegedly still ready to defame the colony. 168 In May the agents consulted counsel, who advised that no application in the matter of the voided act should be made to the King in Council. Since no power existed under the charter to enact such law, the King could not ratify a law which the colony originally lacked power to make. An Order in Council might operate prospectively, but this would not relieve past settlements. Even then it might be claimed that a new charter was necessary to effect the change, and the resignation of the present charter for one presently granted was conceived as a procedure fraught with danger. Counsel therefore advised a special bill in the next session of Parliament for the quieting of all estates settled under the voided act in the past and for enablement of the same method in futuro.189 Apprehensive of the delay and cost entailed by parliamentary relief, the agents consulted Lord Chancellor King who confirmed the advice given by counsel. 170 The Connecticut authorities, in considering this proposal, felt that there were several objections to any application for parliamentary relief. First was the improbability that an additional charter privilege would be granted establishing a rule contrary to the law of England. 1 7 1 Secondly, there was the danger of inciting parliamentary inquiry into the extent of Connecticut laws contrary to the laws of England with consequent vacating of further acts; indeed, such inquiry might lead to parliamentary opinion that under the charter the colony only possessed power to make by-laws. 172 Thirdly, the time was inauspicious in view of the present ministerial attitude which seemingly prohibited the making of any laws contrary to the laws of England, and of the possible extension to Connecticut of the long-seated ministerial hostility toward recalcitrant Massachusetts. 173 Relegated to a minor role was the question of costs arising from parliamentary action. 174 In opposition it was urged that inactivity would result in endless costly lawsuits to the ruin 1ββ PC 2/90/404, 407. See the account in which the "Committee" is termed the of Trade and Plantations" ( i Talcott 221). 161 PC 2 / 9 0 / 4 1 1 . 188 ι Talcott Papers, 166-67. 189 Ibid., 167-68. 170 Ibid., 169-70. " i Ibid., 1 7 5 ; cf. ibid., 178. 172 Ibid., 1 7 5 - 7 6 ; cf. ibid., 179-80. By

of this "Lords Papers,

"vaca-

tion" it is not certain whether disallowance or declaration of nullity was intended. 173 Ibid., 175-76; cf. ibid., 178-79. For the dispute between the Massachusetts Assembly and Governor Burnet as to the governor's salary see 3 Osgood, The American Colonies in the Eighteenth Century, 179-85. For the termination of this danger see 1 Talcott Papers, 185, 1 9 1 . 174 Ibid., 178.

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557

of countless families. Furthermore, that courts of the colony would be caught between the Scylla of judgments according to the common law destructive of colony welfare and the Charybdis of judgments according to the voided act engendering greater confusion and affronting the crown. 175 In addition, action leading only to the confirmation of estates already settled would still leave open the problem of unsettled estates and of the future operation of a rule unsuited to conditions in the colony.17® Upon mature consideration and the repeated advice of counsel, agents Belcher and Dummer decided, however, to take parliamentary action. 177 Introductory thereto a petition was presented to the King in February, 1729/30, setting forth the familiar arguments and praying leave to introduce a bill into the present Parliament to confirm estates settled under the voided act and to permit such intestate distribution in futuro, with a saving clause as to John Winthrop. 178 European affairs, however, became so pressing that the ministry refused to allow the proposed bill to be brought into the present session of Parliament. 178 With legislative channels blocked, a petition for the same relief was presented to the King in Council, in April, 173o, 180 and referred to the Board of Trade. 1 8 1 Winthrop then memorialized the Board of Trade that the act for the settlement of intestate estates was contrary to the laws of England in two respects—in the distribution of realty upon intestacy and the holding of pleas of freehold estates by the Court of Probates, a spiritual court. The allegation that the act was annulled by the February 15,1727, Order in Council was a gross mistake, since the act was in its nature null and void before the King in Council declared it so for the future information of the subjects of Connecticut. Those approving the method of distribution provided by the ' " / W . , 177. " · Ibid., 177-78. 1" Ibid.. 184. 178 The petitionary arguments included ancient custom; the failure to hear the colony on Winthrop's appeal; the reasonableness of the act with regard to Connecticut conditions; confirmation of the similar Massachusetts act; economic disaster contingent upon alteration of descent; and the confusion attendant upon upsetting many estate settlements (ibid., 187-90). Compare the earlier draft of an address to the King supplied to Belcher by Talcott (2 Τ alcoli Papers, 418-22). 179 This set-back was blamed upon the hesitancy of Talcott to seek parliamentary relief (1 Talcott Papers, 197). See also the Februar)· 26, 1729/30, letter from Belcher to the Duke of Newcastle seeking to have the ministry alter

this decision to delay introduction of the bill (CSP. Col, 1730, # 7 8 ) . 180 3 APC, Col., # 2 0 8 ; ι Talcott Papers, 197. The petition is set out in CSP, Col., 1730, #171. The ministry may have advised such conciliar course; see ibid., # 7 8 . 181 3 APC, Col., # 2 0 8 ; ι Talcott Papers, 200, 201. Solicitor John Sharpe was employed to urge the matter and to have a report as soon as possible before the Council Board. It was hoped the report would advise that the matter be laid before Parliament at the next session (ibid., 197). Sharpe refusing to act with Dummer, Belcher appointed Francis Wilks, the Massachusetts agent, co-agcnt with Sharpe. Belcher quitted the agency to assume the governorship of Massachusetts (ibid., 198). By an October, 1730, act of the assembly, Dummer was relieved of his agency and Wilks constituted

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REVIEW

act as economically beneficial were at liberty to achieve the same by a w i l l . 1 8 2 Many had groaned under the action of the Court of Probates and of the assembly, but lacked money to appeal, so that the agent's petition did not represent the sentiment of the united colony. 1 8 ® A t the same time the Board of Trade asked the opinion of the crown law officers whether under the charter the colony had the power of making laws which affected property or whether its power was not confined to the making of by-laws only; further, if the former power was not possessed, whether the charter had been forfeited by passing such laws. 1 8 4 In reply thereto, Attorney General Y o r k e and Solicitor General Talbot declared that under the charter the General Assembly possessed the power of making laws which affected property. 1 8 5 However, it was a "necessary qualification of all such laws that they be reasonable in themselves and not contrary to the laws of England; and if any laws have been there made repugnant to the laws of England they are absolutely null and void."

188

In November, 1730, the Board

of Trade sought further opinion, questioning its legal adviser, Francis Fane, whether the K i n g by virtue of his prerogative and without the assistance of Parliament could gratify the desires of the colony as expressed in their conciliar petition. 1 8 7 Fane could not answer whether the royal prerogative extended to this situation. Supposing it did, he suggested that it would be more for the royal service to take parliamentary assistance, as that method would be least liable to objection. 1 8 8 In December, 1730, the Board of Trade, having heard the parties, 189 advised the Committee that royal license should be granted Connecticut to pass an act for the quieting of possessions already vested, with a saving of the interest of John Winthrop. But the Board reported that it could by no means sole agent (7 Pub. Ree. Col. Conn., 307-8). 182 CSP, Col., 1730, # 2 0 3 . But there appears to have been a tendency to omit making wills in the colony; see ι Talcotl Papers, 203. Talcott also pointed out that the intent of many people who relied on the 1699 act was defeated by the declaration of its nullity (ibid., 234)· 183 CSP, Col., 1730, # 2 0 3 . The last allegation was refuted by Talcott; see 1 Taleott Papers, 235. See also the later memorial of Winthrop (ibid., 394-95). 184 CSP, Col., 1730, # 1 8 6 . The memorial from Winthrop was also sent to the crown law officers as of possible service in forming their opinion (ibid., $206). On May 1 2 Belcher wrote that he had remained as long as he could, hoping to procure a Board of Trade re-

port, but "the affairs of Parliament arc so many and important that no other business can be done" (1 Talcott Papers, 200). IS5 CSP, Col., 1730, # 3 6 3 . Compare the statement of Talcott that "our best counsel has told us we have no power to make a law to restrain property, or regulate descents" (1 Talcott Papers, 1 7 7 ) . 1S0 CSP, Col., 1730, # 3 6 3 .

'8' Ibid., # 5 3 5 · lss

lbid., # 5 5 2 ; 2 Talcott Papers, 433-34. For the account by Wilks of the hearing see ι Talcott Papers, 2 1 7 - 1 8 . For a refutation of the allegations made by Winthrop at the hearing see ibid., 226-27. The Board of Trade minute on the hearing convcys a strange suggestion that in futuro annulment was under consideration (/CTP, 1728/9-34, 165). 189

JUDICIAL A N D LEGISLATIVE REVIEW propose a future course of succession on a different footing than in Great Britain. In return for such royal favor the colony ought to submit to the acceptance of an explanatory charter, whereby that colony might become as dependent on the crown as Massachusetts. If this method should not be regarded as advisable, the King might allow application to Parliament; in such a case it was hoped proper measures would be taken to secure the dependence of Connecticut upon the crown and the mother country. 190 When the Committee considered the Board of Trade report in March, 1730/1, the colony representatives and Winthrop both made motions to be heard by counsel thereon. The Committee informed them that upon application a day would be appointed for a hearing, 1 9 1 but apparently the matter was respited until the province could be heard from. 1 9 2 Upon the unfavorable Board of Trade report agent Francis Wilks had announced his intention to revert to parliamentary channels, 193 but as a conciliar recommendation thereto would certainly confirm the Board of Trade report, the agent was at a loss as to how to proceed. 194 Connecticut did not leave him long in doubt, for the Board of Trade report outraged the province. Wilks was instructed that in order to obtain passage of the advocated act for quieting estates vested under the nullified act the colony would not submit to an explanatory charter. 195 T h e colony at the same time drafted a new act to settle intestate estates in the colony. 190 Wilks protested that passage of such act, while the same matter was depending before the King, might be construed as a contempt of the King and the Council and, further, that the proposed law was open to the identical objections which led to the annulment of the former act. 197 A non-parliamentary solution of the problem was proposed in 1732, but its validity rested upon a mistaken interpretation of a legal opinion. Relying upon an alleged recent opinion of the crown law officers that the common 19

CSP, Col., 77JO, # 6 3 8 ; 2 Talcott Papers,

435-37· 181 3 APC, Col., # 2 0 8 . For an account of the Committee hearing see 1 Talcott Papers, 218, 222. On February 6, 1 7 3 0 / 1 , Winthrop had presented a further memorial, in the main repeating his earlier allegations. He also opposed any act for quieting of titles as encouraging the assembly to pass acts convenient to party interests, however contrary to the laws of England. Memorialist also returned to the argument that the colony possessed only the power to make by-laws of a corporation within the dominion of England (ibid., 3 9 2 96). The original is in PC 1/48. 102 ι Talcott Papers, 245. The account of disbursements by Wilks (ibid., 244-45) affords insight into the conciliar process.

w i b i d . , 218-19. 194 Ibid., 222-23. 185 Ibid., 232; 2 Talcott Papers, 440. 196 For the act see ibid., 441-43. It was conceived of as "a law consonant to the rule of the common law of England" (ibid., 440). 197 Wilks pointed out that the former act was not void merely because it let female issue in to inherit equally with male issue, but because it let in younger sons to inherit with the eldest son as co-heirs ( 1 Talcott Papers, 2 4 0 - 4 1 ) . He further advised passage of an act similar to that voided but limited to personalty. A report to the legislature suggested adoption of the Wilks suggestion (2 Talcott Papers, 443)·

56o

JUDICIAL A N D LEGISLATIVE REVIEW

law of England did not extend to the plantations without an act of assembly, it was contended for the colony that accordingly descents should be governed by the law of natural equity. Therefore, a declarative act should be passed that the law of natural equity ought to govern administrations until the time when a rule agreeable to common law would be settled. 198 But in an exposition of the difference between the extension of the common and statutory laws of England to the plantations Wilks corrected the colony view of the recent opinion of the law officers that had been made with reference to acts of Parliament passed subsequent to the first settlement and not with reference to the common law. 1 9 8 T h e agent then went on to demonstrate that there was no inconsistency in the approval of a Connecticut act settling intestate estates of personalty, although contrary to an act of Parliament, and the annulment of a similar act governing realty, as contrary to the common law of England. 2 0 0 W h i l e certain quarters at this time still advocated action in Parliament and minimized the danger of an explanatory charter, 201 Wilks, convinced that relief was unobtainable except upon such condition, let the colony petition rest. 202 THE RHODE ISLAND PRECEDENT

While these attempts were being made by Connecticut to avoid the effects of Winthrop

v. Lechmere,

another cause came before the K i n g in Council

which claims our interest. This cause was an appeal from Rhode Island which involved the validity of a partition made according to a colony custom that was contrary to the laws of England. In September, 1729, A n n Sabeere et al. brought an action for partition in the Superior Court of Judicature of Rhode Island against Daniel Sabeere. T h e plaintiffs were the heirs of John Sabeere w h o had been joint tenant with defendant of the lands in question. 203 T h e defendant relied upon the doctrine of survivorship of the laws of England, 204 the plaintiffs upon "the ancient standing custom in the colony whereby ι Talcott Papers, 261. Ibid., 273-74. Wilks wrote that statutes in force at the time of the first settlement of the colonies were carried to the plantations in the same way as the common law. Statutes enacted subsequently did not extend to the plantations unless expressly mentioning the plantations or enacted therein by act of assembly. Talcott replied that the colony generally did not distinguish between statutes on a temporal basis; to be received as law in either case specific extension to the colonies or assembly enactment was necessary (ibid., 293). 200 Ibid., 2 7 4 - 7 5 . Y e t Wilks thought it proper 198

189

or necessary to preamble a proposed act, regulating personalty on intestacy in the manner of the voided act, with a statement of long usage in the colony to show the reasonableness and justice of the enacting clauses. - Ü 1 See the opinion of Governor Belcher of Massachusetts expressed in October, 1732 (ibid., 258-59). Ibid., 272-73. This quiescent attitude was ratified by the colony (ibid., 293). -0J MS R.l. Sup. Cl. ¡ud. Judgment Booh.. 1 7 2 5 - 4 1 , 301. 2 0 4 See Coke, First Institute, 181a.

JUDICIAL A N D LEGISLATIVE REVIEW

561

estates have ever gone to the heirs of the purchasers notwithstanding the law of England." In giving judgment the court stated that most of the ancient purchases in the colony at the first settling thereof being made by purchase as joint tenants and their heirs ever having had aid by partition after the decease of their predecessors; and there never appearing to have been any infraction made into the said custom from time out of mind so that the same hath become equal to a common law and is by ancient usage the right of the subject and the only safeguard against an inexpresable confusion threatened by the putting in force the law relied on by the defendant. It was adjudged, consequently, that the estate of John Sabeere passed to his heirs, the plaintiffs, and that execution issue for a partition accordingly. Defendant thereupon appealed to the King in Council.206 A protest against the judgment was also entered by Governor Jenckes and Judges Wiekes and Helme who termed it "contrary and repugnant to the common law and custom of the realm of England." 2 0 8 The appeal was entered in April, 1730, and was heard by the Committee in May, 1731. The Committee advised reversal and that in case execution for partition had issued this be superseded and appellant put into possession of the moiety adjudged respondents and that respondents make satisfaction to appellant for rents and profits received while in possession. It was thus ordered by a May 11, 1731, Order in Council,207 but there was no express declaration of nullity of the Rhode Island custom. Nevertheless, unless we can assume that the alleged usage was just contemptuously ignored it is difficult to escape the conclusion that the purport of the council order, since it affirmed common law, was an implicit avoidance of the custom obedient to the ancient and basic rule that customs contrary to the common law were void. There is no evidence that the judgment in the Rhode Island appeal directly affected the status of Connecticut's negotiations, but it must have served to emphasize the gulf which separated American and English opinion and the almost insurmountable difficulties of evading an admitted repugnancy of law. During the years immediately following Sabeere v. Sabeere the Connecticut men came no nearer to a solution of their troubles, but on the contrary found themselves on the defensive during 1734 and 1735, when Parliament undertook an investigation into the conduct of the colonies in general.208 Finally, 205

MS R.l. Sup. Ct. Jud. Judgment Book, 1725-41, 301. 200 Ibid., 302. 207 PC 2 / 9 1 / 2 2 9 , 3 5 1 , 373, 380, 388. 208 See ι Talcoti Papers, 294-98 (particularly resolutions 1 and 2 of the Committee of the House of Lords as to the extension of and

strengthening of the legislative review power), 3 0 0 - 3 0 1 , 304, 3 1 7 - 1 8 . A commentary on the existing legislative review system is seen in the August, 1733, report of Francis Fane on the laws of Connecticut transmitted to the Board of Trade. Apparently acting in ignorance of the declaration of nullity in Winthrop v. Lech-

5Ó2

JUDICIAL A N D L E G I S L A T I V E REVIEW

in 1738, an unexpected source of relief appeared when the colony was informed that an appeal involving the 1692 prototype act of Massachusetts had been dismissed by the King in Council.209 P H I L I P S V . SAVAGE

In this case of Philips v. Savage Henry Philips of Boston died intestate in July, 1730, leaving a large personal estate and considerable realty.210 The intestate died without issue, but left surviving a brother (Gillam Philips), his mother, two sisters, and the representatives of a third sister.211 Letters of administration were granted Gillam Philips and an inventory of the intestate's estate exhibited before the Judge of Probates. On April 6, 1733, this judge empowered five sufficient freeholders to appraise upon oath all the realty of the intestate and to divide the same equally and justly among the five next of kin or their legal representatives as provided by the 1692 statute to which reference has been previously made and by an explanatory act of 1710.212 A return of the proceedings was made under seal on May 11, and on May 15 the Judge of Probates approved the return.213 From this order of May 15 Gillam Philips appealed to the Governor and Council, alleging that said order was erroneous for three reasons. First, by the laws of England all the realty should have descended to him as the only brother and heir-at-law of intestate. Secondly, the 1692 act and the proceedings thereunder were repugnant to the laws of England and consequently ipso facto void. Thirdly, by law the Judge of Probates had no jurisdiction over realty or the course of descents.214 Upon hearing the appeal, the Governor and Council on Nom e r e , F a n e advised repeal of the 1699 act and

w i f e or children, in the lifetime of the m o t h e r ,

the passage of a n e w act a c c o r d i n g to English

every brother and sister or their representatives

l a w or such other m e t h o d s as w o u l d benefit the

should have an equal share w i t h her in

province ( F a n e , Reports

on the Laws

Con-

estate of the intestate. T h i s provision w a s pre-

necticut

Pub.,

M.

sumably adopted f r o m St. 1 James II, c. 1 7 , s. 7 .

[Acorn

Andrews, 1915], 209

2 Talcott

-l0

Ibid.,

Club

ed.

by

of C.

96-97).

Papers,

T h e manuscript notes taken by C h i e f

7 1 , 7 3 , 83.

the

Justice

Lee at the C o c k p i t hearing of this appeal h a v e

89.

been discovered in L o t # 6 7 6 of the H a r t w e l l

- 1 1 5 Mass. Hist.

Soc. Proc.,

6 7 , 69. C o p i e s of

Papers, sold at Sotheby's on M a r c h

8,

1939.

the conciliar " c a s e s " of the parties are also in

T h i s lot is in the possession of a private col-

the H a r v a r d L a w Library.

lector w h o courteously permitted a m i c r o f i l m

212

5 Mass.

17

MS

1742),

Hist.

Mass.

Soc.

Archives

Proc.,

6 7 , 69,

(Estates,

73-74;

etc.,

5 1 7 . T h e 1692 statute (1 Acts and

copy of the above notes of L e e to be

taken

i6g7-

and deposited in C o l u m b i a University L i b r a r y .

Res.

These notes will be hereinafter referred to as

Prov. Mass. Bay, 4 3 ) provided for " t h e division

the Lee MS.

of the houses and lands to be m a d e b y five suf-

f o l l o w s : " M r . B r o w n , ex eadem

ficient

freeholders, u p o n oath, or any three of

T h e present question arises on Statute 9 A n n e

t h e m , to be appointed and s w o r n by the j u d g e

w h i c h is enacted according to Statute James 2."

f o r that e n d . " T h e 1 7 1 0 act (ibid.,

6 5 2 ) pro-

v i d e d that if after the death of a father, any of his c h i l d r e n should die intestate,

without

In this manuscript it is noted as

213

5 Mass. Hist.

214

Ibid.,

75.

Soc.

Proc.,

petitioner—

68, 7 4 .

JUDICIAL A N D LEGISLATIVE REVIEW

563

vember 2, 1 7 3 3 , decreed that the order of the Judge of Probates should be affirmed.215 Conceiving himself aggrieved by this order, Gillam Philips petitioned for leave to appeal to the K i n g in Council, but was r e f u s e d . 2 1 · Thereupon, in N o v e m b e r , 1734, a petition for leave to appeal from the November 2, 1 7 3 3 , order of the Governor and Council was presented to the K i n g in C o u n c i l . 2 1 1 T h e Committee advising that the appeal should be allowed on the usual security, it was so ordered by the Council Board in February, 1 7 3 4 / 5 . 2 1 8 T h e appeal w a s entered in M a y , 1735, but no hearing took place until January, I737/8·219 In the meantime W i l k s , Massachusetts agent since 1 7 2 8 , 2 2 0 petitioned the Council Board, setting forth that the order appealed from was based on a general law of the colony for settling intestate estates, that this law had been constantly observed since its passage, and that it had long since received royal approbation. Therefore, it w a s prayed in behalf of the province that the validity of the provincial act might not be drawn into question on hearing the appeal, or if the validity were questioned, that the province might be heard by counsel in support thereof. 2 2 1 Leave was granted for the province to be heard by counsel before any order issued detrimental to established law and usage. 2 2 2 215 Ibid.. 68, 75; 82 MS Mats. Archives (Min20 utes of Council, 1733-53), · 219 Ibid., 21 ; 5 Mass. Hist. Soc. Proc., 68, 76. This refusal was probably based upon the Massachusetts reluctance to allow appeals in actions involving realty; see supra, p. 162 et seq. -"PC 2/93/36· « s PC. 2/93/93. 95. 100. 210 On June 25, 1735, upon motion of appellant, the Committee ordered the appeal heard on January 29, 1735/6. But no action followed. On April 20, 1737, upon another motion to be heard, the Committee ordered that appellant's solicitor satisfy the Committee that all respondents had been duly summoned before a clay would be appointed. Finally on December 2 i ' >737. the Committee ordered that the appeal be heard on the following January 13 (PC 2/93/166, 186; PC 2/94/203, 267, 353). In November, 1735, respondents petitioned the Massachusetts House of Representatives that they were cited to appear before the Council Board on the next January 29 for a hearing of the appeal and prayed that such directions be given to the colony agent as seemed meet (13 ¡our. House Rep. Mass., 116-17). Some objection was raised to entrusting agent Wilks with the matter, since he was alleged to have

lately solicited an appeal similar to the one to be defended against. Finally, a memorial to the King and a letter to Wilks were settled upon {ibid., 146, 153-54). 221 PC 2/94/267. Cf. 5 Mass. Hist. Soc. Proc., 78. The Reverend Benjamin Coleman represented the appeal as concerning the whole province and as an attempt to strike at the charter (Coleman to Francis Wilks [.'], Nov. 12, 1735; Coleman MSS, 1735-63). 222 Agent Wilks wrote that "the consequencc of this appeale in the nature of it greatly affecting the welfare of the province I had by former instructions engaged in it . . . The Committee [of the House of Representatives] are of opinion that I should not publickly appear in the case but give assistance to Mr. Partridge and encourage them with such a sum as I thought necessary not exceeding ¿ 30, but it was too late then for me to retract. I had obtained leave for the province to be heard by councill before any order should be made that might hurt the established law and usage of the country, thus we secured another hearing had the lords leaned any ways towards confirming the appeale before it could be finally done, for afterwards as in the case of Connecticut all application or expense would have

564

JUDICIAL A N D LEGISLATIVE REVIEW

O n January 13 and 16 the appeal was considered by the Committee and counsel for appellant, Gillam Philips, and one respondent, Faith Savage, were heard. 223 Appellant by his counsel argued that the lawmaking power of the assembly was under the charter confined to such laws as were not repugnant or contrary to the laws of England. 2 2 4 T h e acts in question not only subverted the established rules and principles of law respecting the descent of realty but also introduced a new jurisdiction over realty. Secondly, the Order in Council in Winthrop v. Lechmere tion of the point in

was advanced as a binding determina-

question. 225

In contrast to the poor defense made in Winthrop arguments, both procedural and

substantive, 226

v. Lechmere

a host of

were advanced by respondent.

Procedurally, it was claimed that appellant had been too late in his objection that neither the administrator nor the Judge of Probates had jurisdiction over realty. By posting a bond and exhibiting an inventory in the common form upon the letters of administration, appellant had acknowledged the jurisdiction of the Court of Probates over realty as well as personalty. 227 T h e further procedural objection was raised that appellant had acquiesced in the April 6, 1733, order and therefore could not question its correctness upon appeal to the K i n g in Council—that an intermediate appeal therefrom should have been taken to the Governor and Council. 2 2 8 T h e appeal, however, reduced to the single issue whether the questioned 1692 act was a valid law or not. 229 T o justify this act respondent showed that been vain" (52 MS Mass. Archives [Letters, 1724-38], 464-65; cf. 1 Talcott Papers, 83-84). 223 PC 2/94/374, 375· T h e other respondents made no appearance, "though duly summoned in N e w England." T h e committee which reported on the appeal, as noted in the Privy Council register, consisted of Lord Chancellor Hardwicke, the Lord President (the Earl oí Wilmington), the Earl of Pembroke, the Earl of Cholmondeley, Lord Monson, Onslow (Speaker of the House of Commons), and Chief Justice Lee. 2 2 4 5 Mass. Hist. Soc. Proc., 68. The charter legislative power was subject to the limitation that the acts "be not repugnant or contrary to the lawes of this our realme of England" (3 Thorpe, Federal and State Constitutions, 1882). 225 5 Mass. Hist. Soc. Proc., 68. Counsel for appellant were Dudley Ryder (the Attorney General) and John Brown. 220 Counsel for respondent were John Strange (the Solicitor General) and Jonathan Belcher, son of the Massachusetts governor (ibid., 80). 227 Bond and inventory had to be presumed to

have been given in the common form prescribed by the act and thus including realty, since appellant neglected to include these instruments in the record brought u p (ibid., 73-74, 76). The Attorney General's answer to this contention was as follows: "Answer—claim administration as next of kin and that is conformable to the laws of England. N o power to the administrator to intermeddle with real estate for that is to be divided per five sufficient persons. Urged the bond has no relation to the real estate nor is that mentioned therein. But if such bond given it is void if the law is void." Lord Chancellor Hardwicke in giving his "decision" apparently stated that "giving an inventory will not give jurisdiction" (Lee MS). 5 Mass. Hist. Soc. Proc., 74-75, 76-77. To this it was answered: "the first order is only to make division, the second or last order is the grievance, founded on the certificate returned" (Lee MS). 229 According to Ferdinand John Paris, solicitor for appellants (2 Talcott Papers, 80). 228

JUDICIAL AND LEGISLATIVE REVIEW

565

it had received confirmation by the King in Council. Furthermore, the confirmation was made by those who had granted the 1691 charter to the colony and who were indisputable judges as to conformity to the charter. 230 This confirmation was augmented by five additional or explanatory acts which had been expressly or tacitly approved by the King in Council. 2 3 1 T o this argument appellant answered that if the law were void, the confirmation added nothing to its validity. 232 Next, it was attempted to show that the act was not repugnant to the laws of England. Admitting that the colony rule differed from primogeniture (the general rule governing descents in England), respondent pointed out that many customs prevailed in the mother country which were repugnant to the general rule. Yet the legality of such customs as gavelkind and borough English was never questioned, although circumstances did not afford the same justification for such deviation as in newly settled countries. So, as rules of descent varied and conflicted in England, it was impossible but that the rule of descent in America should vary from one rule or other in England. 2 3 3 T h e similarity of the Massachusetts rule of descent to gavelkind was urged at the hearing. 234 Assuming for forensic purposes that these arguments failed and that the repugnancy of the act was established, a new line of argument was taken by counsel. It was insisted that in the charter there were no clauses restrain230

5 Mass. Hitt. Soc. Proc., 72. The act was confirmed by an Order in Council of August 22, 1695 (PC 2/76/195). 231 5 Matt. Hitt. Soc. Proc., 72-73. Two acts receiving actual confirmation were Chapter 46 of the laws of 1692-93 ( 1 Acts and Ret. Prop. Mass. Bay, 101), confirmed at the same time as the main act (PC 2/76/195) and Chapter 2 of the laws of 1730-31 (2 Acts and Ret. Prov. Mass. Bay, 579), confirmed by a January 27, 1731/2, Order in Council (3 APC, Col., p. 845). The reliance placed upon the language of the confirming orders was without significance, since such language was the formal style for such category of conciliar orders. Three acts received tacit approval in that they were neither disallowed nor confirmed within the three year period specified by the charter (see 3 Thorpe, Federal and State Constitutions, 1883). These acts were Chapter 2, Laws of 1 7 1 0 - 1 1 (1 Acts and Res. Prov. Mast. Bay, 652), Chapter 24, Laws of 1 7 1 5 - 1 6 (2 ibid., 3 1 ) , Chapter 10, Laws of 1719-20 (2 ibid., 151). Cf. 2 Talcott Paperi, 80. 232 Notes from the Lee MS read: "If law void the confirmation nil valet 295 [Coke's] Inst. A confirmation only makes good a voidable estate. 301.

"5 Coke 56a. King's grants shall not issue to 2 purposes. "If King grants lands to villein does not infranchise yet it would in case of a common person." 283 5 Mats. Hist. Soc. Proc., 79. 234 It appears that it was asserted: "That [law] is not contrary to the laws of England which law allows and the laws of England allow of lands being divided as here. [Marginal citations, ι Intt. 1 7 ; , 140a] Judges must take notice of custom of gavelkind by which case all brothers divide by custom. Britton 187b. Lands partible between brothers and sisters by custom. Hale, folio 220, lands descended to sons and daughters" (Lee MS). The further point was made that "gavelkind is a socage tenure. Charter is that lands should not be [held] by knight service but by common socage. 2 Anderson 1 1 5 " (ibid.). On the charter tenure, see 3 Thorpe, Federal and State Constitutions, 1870. It was, however, noticed that "this law differs from gavelkind in the extent" (Lee MS). Under gavelkind the estate was partible among the sons equally (Robinson, The Common Law of Kent; or, The Customs of Gavelkind [ 1 7 4 1 ] , 90-91); the double share to the

5 66

JUDICIAL A N D L E G I S L A T I V E

REVIEW

ing the King from granting any new powers to the province, nor any clause declaring that the crown and the assembly should never jointly enact any laws different from those prescribed in the charter. 235 Thus by the above confirming Orders in Council the crown enlarged the legislative power beyond the bounds set by the charter.-3® In the same vein it was advanced whether the true construction of the charter was not a general direction to the province to make laws not repugnant to the laws of England, but subject to the judgment of the crown. If the crown did not object, any law made in the province might subsist.237 But seemingly this view was modified by a query whether the repugnancy meant by the charter was not a repugnancy to such laws as English subjects qua such had a right to and of which the King could not deprive them. It was alleged that there could be no inconvenience for the King to allow any law in the plantations which he thought reasonable, if there was a power in the King and plantation legislature to introduce it. And as the King to whom appeal was then made had not disallowed the law, he had already declared that he did not esteem the law so repugnant. 238 Then veering away from the question of the legislative power under the eldest son provided by the Massachusetts act probably had a Biblical origin; see Deuteronomy 2 1 : 1 5 , 1 7 ; St. Luke 1 2 : 1 3 ; 1 5 : 1 2 ; Robinson, op. cit., 9 - 1 0 . Cf. Taylor, History of Gavelkind ( 1 6 6 3 ) , 8; Egleston, The Land System of the New England Colonies, 4 Johns Hopkins Univ. Studies ( 1 8 8 6 ) , 600. Among Lee's notes on the hearing is the following: "Here the eldest son has a double portion per Hebrews, ι Sid. 137 [Wiseman v. Cotten]" (Lee MS). Under gavelkind lands were divisible between males to the exclusion of females of the same degree (Robinson, op. cit., 9 0 - 9 1 ) . But a custom of division prevailed in a few places in England wherein lands were divisible among males and females in the same degree, as provided by the Massachusetts act (Robinson, op. cit., 3 6 - 3 7 ; Taylor, op. cit., 1 0 0 - 1 0 1 ) . Also under gavelkind the widow of intestate took one-half of the lands for life as dower, conditioned upon not remarrying and continence (Robinson on Gavelkind [1897], 139-41; Sandys, Consuetudines Kanciae, Λ History of Gavelkind [ 1 8 5 1 ] , 185-206; Lambard, Perambulation of Kent [ 1 8 2 6 ] , 503). Under the Massachusetts act the widow took one-third of the realty for life unconditionally. See also the comments of Gershom Bulkeley on the Connecticut pre-statutory pretensions of gavelkind tenure ( Wyllys Papers, loc. cit., 3 4 5 - 4 7 ) .

235

5 Mass. Hist. Soc. Proc., 70. Ibid., 77. 237 In the Lee MS we find the following: "The charter gives power to make laws not repugnant to the laws of England. In the same charter there is a proviso that all laws not disallowed by the King in three years shall be in force and therefore if the true construction in this charter should not be a general direction to the province to make laws not repugnant but subject to the judgment of the crown and if the crown does not object any law made in the province may subsist." Then Rex v. Kemp (4 Mod. 275) was discussed by respondent counsel. "Justice Eyre took the difference that if the King be not deceived in any matter suggested by the grantee, but is only mistaken in his own affirmation and surmises though it be in the law itself, such grants are good, and such construction shall be made as may tend to their support. 2 Cro. 34, I I Co. [ 2 ] Auditor Curie's Case. "The King having reserved a power of judging to himself, if he and the legislature can introduce this law touching descents I think he has done it in this case effectually by consenting to this law. And in this case the King is the sole judge and has nothing to control him but the laws of England" (Lee MS). 238 Lee MS. It was questioned at the hearing 238

JUDICIAL A N D LEGISLATIVE REVIEW

567

charter, various arguments were adduced to justify the distribution provided for by the questioned act. First, the antiquity and constancy of such usage in the province 2 3 9 and the extent thereof in other colonies was shown. 240 Sec"if the King and legislature in a plantation could make a law that a man should be tryed for his life without a jury." 238 5 Mass. Hist. Soc. Proc., 69-70. In her printed Case, respondent alleged that the colony enacted an act "about 1641, for distribution of intestate's estates; subjecting lands (if not otherwise disposed by the owners), in the manner of personal estates in England, to an equal distribution among all the children, or next of kin in equal degree, or to the like effect." Presumably meant was the Body of Liberties, # 8 1 , 82. The former provided that: "When parents dye intestate, the elder sonne shall have a doble portion of his whole estate reali and personali, unlesse the Generali Court upon just cause alleadged shall judge otherwise." The latter provided that: "When parents dye intestate haveing noe heires males of their bodies their daughters shall inherit as copartners, unies the Generali Court upon just reason shall judge otherwise." See Whitmore, A Bibliographical Sketch of the Laws of the Massachusetts Colony from i6jo to 1686 (1890), 51. Compare the "spurious" version (see ibid., 1 - 2 ) set forth in ι Hutchinson Papers (2 Prince Soc. Pub., 1865), 191. In a 1646 declaration of the General Court these provisions of the Body of Liberties were set forth as consonant with the common law of England (ibid., 234-35). On the validity of this contention see R. B. Morris, Massachusetts and the Common Law: the Declaration of 1646, 31 AHR 447-48. This provision was repeated in the Book of the General Laws and Libertyes of 1648; see Laws and Liberties of Massachusetts (1929), 53-54. In the 1660 revised laws of the colony it was ordered "that when the husband or parents dy intestate, the County Court of that jurisdiction, where the party had his last residence, shall have power to assigne to the widdow such a part of his estate as they shall judg just and equal as also to divide and assigne to the children or other heires their scverall parts and portions out of the said estate, provided the eldest sonn shall have a double portion, and where there are no sonns the daughters shall inherit as copartners unless the court upon just cause alledged, shall otherwise determine" (Colonial Laws of Massachusetts, 1660-1672 [1889], 201). The provision was incorporated

in the 1672 revision of the colony laws (Colonial Laws of Massachusetts, 1672-1686 [1890], 158). Certificates under the colony seal from the proper officers were used to show the usage and practice under the act (2 Talcott Papers, 80). Many examples of usage are to be found in Probate Records of Essex County, Massachusetts (1916-20), Volumes I—III, passim. See also the recital in the Committee report on the appeal (3 APC, Col., # 3 2 2 ) . As to the New Plymouth colony it has been supposed that gavelkind tenure prevailed there; see Morris, Studies in the History of American Law, 108. This supposition is based upon enactments "that inheritance do descend according to the comendable custome of England and hold of East Greenwich" (The Compact with the Charter and Laws of the Colony of New Plymouth [ed. by W. Brigham, 1836], 43, 279; i l Ree. Col. New Plymouth, 187) in accordance with the tenure of the charter (3 Thorpe, op. cit., 1842; sec discussion supra, n. 1 1 8 , as to effect of the tenure expressed in charters), and upon the inclusion of this tenure clause in deeds made in the colony (see Brigham, op. cit., 53-54; 12 Ree. Col. New Plymouth, passim). But the scanty evidence available indicates that primogeniture prevailed in the colony; see 4 ibid., 75-76. However, the laws of 1672 provided: "That when any man dyeth intestate, and leaves divers children; the eldest son shall have a double portion with what he hath already received from him of his estate, both real and personal" (Brigham, op. cit., 218-82). In the 1685 revision of the laws it was provided: "That all the sons of any person having lands in fee simple shall be heirs . . . the eldest son shall have double to any of his brethren; and all the younger equal shares of the land of their ancestor· . . . and where there is no son, all the daughters shall inherit alike." And further that "all the brethren of the whole blood shall be heirs to any person dying without issue; the eldest brother to have double to any one of his brethren . . . and where there is no brother, the sisters of the whole blood shall inherit" (Brigham, op. cit., 299). Compare this with gavelkind tenure, supra, n. 234. 240 In argument it was asserted that "this law of division takes place in Pennsylvania, New

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ondly, the act was reasonable and well calculated for the end of the charter— the settlement of the province.241 Thirdly, descents must be governed by the circumstances of a country, so that with varying circumstances different rules would evolve. The essential requisites, all present in this instance, were that the descent be reasonable, communally beneficial, notorious, and established. Fourthly, in the early stages of many countries the same rule of descent had been in force, showing that such law was not repugnant to the general wisdom and policy of mankind. 242 Next, respondent proceeded to picture the evil consequences following a declaration of voidness. The adoption of the doctrine that every colonial law not perfectly agreeable to the laws of England, though confirmed by the crown, was void, would not only render useless colonial legislative powers but would also subvert the royal prerogative. 243 Such declaration of voidness would affect most of the laws of the province which might with equal justice be termed repugnant to the laws of England. 244 Pleaded last was the public inconvenience and confusion which would be caused by the voiding of an act under which settlements had been made for many years.245 Finally there was discussion of the force of Winthrop v. Lechtnere as precedent in this appeal. Upon the hearing, counsel for appellant agreed that in the earlier case there had been no confirmation and that the King possessed no power to approve or disallow Connecticut acts. 246 Respondent counsel distinguished the instant case from the suggested Connecticut precedent in several respects. First, the legislative powers under the Massachusetts charter were greater, Connecticut having only the power to make by-laws.247 Secondly, the controverted law had been confirmed by the King in Council, even Hampshire, Bermuda." But appellant "urged no province has law like this" (Lee MS). Compare the disallowance of acts similar to the Massachusetts act in Pennsylvania and New Hampshire, supra, n. 63. 241 5 Mass. Hist. Soc. Proc., 78. Respondent counsel noted on appellant's printed Case, " T h e preamble artfully omitted, upon which the whole construction of the act depends" (ibid., 65). In the Lee MS it is noted: " T o show reasonableness insists on the preamble and that not for interest of England that single persons should become the proprietors." Cf. 2 Talcott Papers, 80. 242

5 Mass. Hist. Soc. Proc., 78-79. Ibid., 7 8 - 7 9 . 244 Ibid., 80. Particularly adverted to was the tendency to bastardize and disinherit a majority of the province's inhabitants whose parents 243

had been married by justices of the peace under another 1692 law (1 Acts and Res. Prov. Mass. Bay, 6 1 ) approved at the same time as the act in question (PC 2 / 7 6 / 1 9 5 ) . 245 5 Mass. Hist. Soc. Proc., 79-80. 246 From the Lee MS: "v. c. of Connecticut, 1 7 2 7 . Winthrop's case. Agree no confirmation nor any power to approve or reject." 247 "This case different from Winthrop, ist, different colony. Powers to them only to make by-laws, further thought of ill consequence" (Lee MS). Cf. 2 Talcott Papers, 81. As to the validity of the contention compare the legislative powers of Connecticut (2 Pub. Ree. Col. Conn., 8) with those of Massachusetts (1 Acts and Res. Prov. Mass. Bay, 1 5 - 1 6 ) , particularly the clause, "according to the course of other corporations within this our Kingdome of England," in the former.

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sincc the order in Winthrop v. Lechmere.

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Thirdly, in the Connecticut

case appellant never submitted to bring an inventory.249 Fourthly, the Massachusetts law was very ancient and constantly observed.250 The Committee, after hearing counsel present these arguments and after maturely considering the proceedings in the cause, 251 advised that the three orders appealed from and the division made thereunder be affirmed and that the appeal be dismissed.252 From the recital in the report it appears that the grounds for dismissal of the appeal included the 1695 confirmation of the questioned act by the King in Council, the recent confirmation of the 1731 additional act, and the constant usage in the colony under the act. 253 On February 15, 1737/8, an Order in Council issued giving executive force to the Committee report. 254 It is apparent that in Philips v. Savage an element was present that was lacking in Winthrop v. Lechmere, viz., the circumstance that certain provincial acts had been confirmed by the crown. This, it has been assumed, was the ratio decidendi of the affirming conciliar order, 255 but there was some contemporary opinion in the colony to the effect that the confirmation was of no operative consequence.256 Such a view would accord with English judicial doctrine which treated approval of corporate by-laws under 19 Henry VII, c. 7, as giving no exemption from judicial review. 257 Curiously enough, this 24S

Lee MS. A reference to Chapter 2 of the Laws of 1 7 3 0 - 3 1 , confirmed on January 27, 1 7 3 1 / 2 ; see supra, n. 2 3 1 ; cf. 2 Talcott Papers, 81. Lee MS. - 5 0 2 Talcott Papers, 81. 251 Solicitor Paris wrote that respondent's cause was greatly assisted by a statement of Lord Chancellor Hardwicke: "That he had been of Council for Mr. Winthrop in his case formerly. That as his counsel, he had at such time, offered all that he could for his clyent, to get the Conecticut Act repealed and the orders reverst. That though he had prevailed therein for his clyent, yet, with very great deference to those lords who judged in that case, he was not satisfied in his own private opinion, with that determination in Winthrop's case" (ibid.). 252 3 APC, Col., # 3 2 2 . 253 Ibid. To establish the latter point certificates under the hands of Josiah Willard, judge of the Court of Probates, and John Boydell, register of that court, were submitted. 254 Ibid. In December, 1738, respondent petitioned the House of Representatives for reimbursement for costs incurred in defending the

appeal, since the outcome was in favor of the province and its laws ( 1 6 ¡our. House Rep. Mass., 136). Upon committee report thereon, the House voted that ¿ 40 of the charges should be assumed by respondent, the remainder ( ¿ 1 5 0 / 1 8 / 3 ) by the colony (ibid., •54-55)· 255 See Schlesinger, Colonial Appeals to the Privy Council, 28 Pol. Sci. Quart., 443; Hazeltine, Appeals from the Colonial Courts to the King in Council, Annual Rep. Am. Hist. Assn. (1894), 3 2 1 . 256 The Reverend Benjamin Coleman wrote "that it only remains to say this or that is repugnant to the laws of England, and then the inference is that the law has no validity though it has been confirmed, because the charter allows of nothing repugnant to the laws of England" (Coleman to Francis Wilks [ ? ] , Nov. 12, 1 7 3 5 ; Coleman MSS, ¡735-63). 257 In The Case of the Tailors of Ipswich ( 1 1 Co^e 53a) it was resolved "that the statute of 19 H. 7. C. 7. doth not corroborate any of the ordinances made by any corporation, which are so allowed and approved as the statute speaks, but leaves them to be affirmed as good,

JUDICIAL A N D LEGISLATIVE REVIEW analogy docs not appear to have been presented in the conciliar argument, and it appears to us that affirmance was the result of the full impact of the various legal arguments presented of which the previous confirmation of the 1692 act was only a single though telling point. 258 The possible effect of the royal confirmation in Philips v. Savage can scarcely be appraised without some inquiry into the state of current doctrine respecting such confirmation, a subject which affords material for much interesting speculation. First let us inquire into the matter of the legal force of a confirmed colonial law. In 1703 the Board of Trade, considering monetary conditions in the plantations, questioned the Attorney General whether the Queen by proclamation could alter the rates of foreign coins in the plantations. In Massachusetts a rate higher than in other colonies prevailed by virtue of An Act for Ascertaining the Value of Coyns Currant within This Province, an act which had been confirmed by the Queen in Council. 259 Northey was of the opinion that the confirmation having been absolute the rate established would continue until repealed by another act of the General Assembly, "the passing of an act there with the absolute confirmation of Her Majesty having the force of an Act of Parliament made in England." 2β0 If Northey's position is correct, the Privy Council, had it declared the Massachusetts act null and void ab initio upon appeal, would have been declaring void an act having the force of a parliamentary enactment. And despite the statements in Bonham's or disaffirmed as unlawful by the law. The sole benefit which the corporation obtains by such allowance is, that they shall not incur the penalty of j[ 40 mentioned in the Act, if they put in use any ordinances which are against the King's prerogative, or the common profit of the people, etc." See also The Stationers in the City of London v. Salisbury (Comb. 2 2 1 ) , where to the assertion of counsel that "this by-law was signed by the Lord Chancellor Finch," the court replied, " 'Tis never the better for that, for that is done of course. So we use to do in the circuits, but if the orders be not good, let the parties look to that at their peril." Compare Lord Ellesmere that "the true meaning of the statute of 19 H. 7 was that such ordinances made by corporations and allowed by the great judges of the realm should stand confirmed by Act of Parliament" (Observations on Lord Code's Reports [n.d.], 1 2 ) . Cf. Davenant v. Hurdis (Moore K.B. 576): Norris v. Staps (Hobart 2 1 0 ) . 2i8 Although counsel for the province was not heard, Wilks was of the opinion that without provincial intervention success would have been doubtful; as a private cause the appeal would

not have been as well attended or considered (52 MS Mass. Archives [Letters, 1724-38], 465). Wilks had been with "most of the Lords that attended the Council that night and apprized them of the consequence and engaged their attendance. My Lord President was pleased not to appoint the hearing till my Lord Chancellor could attend." 259 CSP, Col., 1702-3, # 6 5 6 . For the act sec ι Acts and Res. Prov. Mass. Bay, 296. 280 CSP, Col., 1702-3, # 7 6 5 . Solicitor General Raymond also stated later that acts of colonial assemblies were "of the same effect there, as an Act of Parliament here" (ibid., 1712-14, # 4 5 7 ) . Cf. the statement of Holt, C. J., that "every by-law is a law, and as obligatory to all persons bound by it, that is, within its jurisdiction, as any Act of Parliament, only with this difference, that a by-law is liable to have its validity brought in question, but an Act of Parliament is not; but when a by-law is once adjudged to be a good and reasonable by-law, it is to all intents as binding to those that it extends to as an Act of Parliament can be" (City of London v. Wood [ 1 2 Mod. 669, 678]). Perhaps the

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Case 2 6 1 and in several other decisions,262 no English court had ever declared null and void an act of Parliament by judicial review.263 There is, however, no evidence that it was argued at the Cockpit hearing in Philips v. Savage that the confirmed act had the force of an act of Parliament, and it is furthermore extremely doubtful if Northey's doctrine could be supported. A second question arises as to what action could be taken in the case of a confirmed act which was later regarded as repugnant to the laws of England and the charter limitations. In 1727 the Board of Trade transmitted three confirmed acts of Massachusetts to the crown law officers, desiring their opinion whether the acts were repugnant to the charter, and if they were, whether it was now in the King's power to repeal them.264 These acts passed in 1692/3 and 1695/6 were concerned with the settlement and support of the ministry in the province.205 In an August 16, 1732, opinion of the crown law officers in the matter, it was advised that the acts were probably not void as repugnant to the charter restriction. But, the opinion continued, "if they were really void in themselves on this account yet no extra-judicial declaration that they are so would be conclusive, but the only method of bringing that matter to a determination would be by some judicial proceeding." 266 If this opinion is coupled with the earlier opinion as to the force of a confirmed colonial act, acceptance of the theory of judicial review of acts of Parliament is made out. But there is no explicit statement as to the force of confirmed acts in the later opinion. The declaration as to the need for judicial proceedings is consistent with the 1696 statutory provision and the practice thereunder, since this was not the case of an act of Parliament extending to the plantations. Philips v. Savage was not without bearing on later Connecticut proceedings. In July, 1738, Ferdinand John Paris, solicitor for respondent Savage, explained the argumentative technique successfully employed in Philips v. Savage and suggested a course of action for Connecticut. As a procedural precaution, Paris warned the colony against allowing numerous appeals questioning the validity of the act.267 Also stressed was the necessity of intervention by the crown law officers regarded conciliar confirmation as comparable to the adjudgment mentioned by Holt. See also Ellesmere, supra, note 257. 2® 9 Pub. Ree. Col. Conn., 59Ï-93. Some insight into the activities of a solicitor upon a conciliar appeal is provided by the bill of John Sharpe in this appeal (t Law Papers, 3 5 5 59). 2®° Washburne (Imperial Control of the Administration of Justice, 187-88) states that "the petition was dismissed, the judgments of the lower courts affirmed and the validity of the Connecticut act concerning the estates of intestates sanctioned which reversed the former decision enunciated in the appeal in the case of Winthrop vs Lechmere." Hazeltine (Appeals from Colonial Courts to the King in Council, 3 2 2 ) declares that "these combined efforts [of the colony and respondent] to secure a reversal of the privy council's decision in the case of Winthrop ν Lechmere were finally successful. . . . At last the validity of the act of 1699 was established." To the same effect see Schlesinger, Colonial Appeals to the Privy Council, 28 Political Science Quarterly, 445. Dickerson (American Colonial Government, 275) says that "the decision [Winthrop v. Lechmere] was afterwards reversed in the case of Clark v. Tousey." To like effect see Adams, The Emancipation of Massachusetts ( 1 8 9 3 ) , 3 0 1 . Haines (The American Doctrine of Judicial Supremacy [2d ed., 1 9 3 2 ] , 5 1 ) asserts that the colony "was successful in having the former decree of the Council reversed and the colonial act of 1699 validated." Talcott (5 Conn. Hist. Soc. Coll., 88, note) declares that "the controversy was brought to a successful

close by a royal decree, dismissing Clark's appeal, and thus confirming the validity of the Connecticut Law of Intestate Estates." To the same effect see Russell, The Review of American Colonial Legislation by the King in Council, 106; ι Hockett, Constitutional History of the United States ( 1 9 3 9 ) , 56. For a more cautious view see 3 Osgood, The American Colonies in the Eighteenth Century, 3 1 7 , that "the appeal of Clark was finally dismissed and the Connecticut law of intestacy . . . was by implication allowed to stand." 201 See 9 Pub. Ree. Col. Conn., 591. The petition is erroneously termed a "petition for leave to appeal" by agent Palmer (1 Law Papers, 343). 292

See Andrews, The Influence of Colonial Conditions As Illustrated in the Connecticut Intestacy Law, t Select Essays in AngloAmerican Legal History (1907), 462. Compare the earlier view of Andrews in The Connecticut Intestacy Law, 3 Yale Review 293. Cf. Morris, Studies in the History of American Law, 1 1 9 - 2 0 . Such procédural action well accorded with the strategy of the colony; see 2 Talcott Papers, 82-83; 1 Law Papers, 68. The conciliar rule must have been well known to the crown law officers; see Gordon v. Lowther (2 Lord Raymond 1447) and the discussion of the rule, supra, pp. 273-74. 203 Such Orders in Council usually contained a recital of nonprosecution and an award of costs. See McSparran v. Mumford (PC 2 / 8 8 / 8 1 , 86); Williams v. Williams (PC 2 / 9 5 / 1 6 1 , 2 1 2 ) ; Wilcox v. Royal (PC 2/94/607, 6 1 5 ) ; Kirwan v. Lyons (PC 2/95/61, 63); Manning v. Concannen (PC 2 / 9 7 / 1 1 0 , 1 1 8 ) . 291 See 9 Pub. Ree. Col. Conn., 366-67.

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regarded the 1699 act as in force; 2 , 5 but the question was not further agitated before the Privy Council. That the imperial administrators finally capitulated to the colonial view on intestate distribution is seen by the treatment accorded N e w Hampshire 2 9 e and Pennsylvania statutes 2 9 7 governing intestacy. While these three appeals—Winthrop v. Lechmere, Philips v. Savage, and Clark, v. Tousey—clearly established that colonial legislation was subject to judicial review, not all the implications of the doctrine were understood. Particularly confused was the distinction between a disallowance and a declaration of nullity, a matter which evoked from Benjamin Whitaker, Chief Justice of South Carolina, a representation (February, 1742/3) to the Board of Trade canvassing the legal status of acts repugnant to the laws of England. As an initial premise, it was stated that all acts of assembly were made by an authority derived from the crown which enabled the governor, council, and assembly to make laws provided they were as near as might be agreeable to, but not repugnant to, the laws of England. 298 In some cases acts had been made in the plantations not only contrary to the royal instructions and the prerogative of the crown but also disagreeable or repugnant to the laws of England. 299 The question, then, was whether such laws were void when they were first made or were voidable by the royal disallowance and might be put into practice until the royal pleasure should be signified that the same were repealed. A further question was whether judges of the colony courts when 295

See 3 Digest Early Conn. Probate Ree., '729~5° (comp, by C. W. Manwaring, 1906), 1 5 , 40, 50, 124-25; Acts and Laws Connecticut (1786), 53-54; 2 Douglass, Summary, Historical and Political ( 1 7 5 5 ) , 174. 298 Matthew Lamb, Board of Trade counsel, reporting on March 17, 1747/8, on An Act in Addition to an Act Entitled an Act for the Settlement and Distribution of the Estates of Intestates, etc. (3 Laws of N.H., 9) stated that many objections might be made if the law were a new enactment, "as the course of descents and distributions of intestates estates is thereby greatly altered from the course of the laws of England in that respect." But the law was additional to several acts already in force which had a settled course (CO 5/926/B 4)· 297 Lamb in a December 5, 1749, report on An Act for Amending the Laws relating to the Partition and Distribution of Intestates Estates (2 Charter and Acts Assembly Prov. Pa. [1762], 22) related that "this and some other of the neighboring provinces have particular laws relating to the distribution and

division of intestate's estates which are different to the laws of England but as they have been heretofore passed and confirmed here, I can make no objection thereto" (CO 5 / 1 2 7 3 / V 62). See also Russell, The Review of American Colonial Legislation by the King in Council, 159-60. Compare the attitude shown in the disallowance of a North Carolina act of December, 1762, appointing the method of distributing intestates' estates. The Committee reported that the act varied from its parliamentary prototype, 22 and 23 Charles II, c. 10, in that in the distribution provided therein the legal representatives of deceased children were not included (4 APC, Col., #566). 208 Under the 1739 commission to Governor Glen, laws, statutes, and ordinances were "not to be repugnant, but as near as may be, agreeable to the laws and statutes of this our kingdom of Great Britain" (2 Labaree, Royal instructions, p. 819). This was the ordinary commission provision; see supra, n. 25. 299 CO 5/369/G 1 1 8 .

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such acts were given in evidence or pleaded in cases depending before them, o u g h t to adjudge them, ipso facto, void or only voidable, and so to be put into force until royal repeal. F r o m this arose subsidiary questions whether the repugnancy to the laws of E n g l a n d had reference to the common or statute l a w or to the c o m m o n law as altered, explained, or enlarged by statutes, and w h a t obligation the statute law of E n g l a n d had in the plantations before or after a f o r m of government had been established in the plantations by an authority derived f r o m the c r o w n . 3 0 0 T h e doubts which beset Chief Justice Whitaker are all implicit in the general problem of repugnancy, but it is questionable whether any other j u d g e in the colonies up to this time had perceived the dimensions of the problem, and equally whether the English authorities themselves had. In any event they appear to have done nothing to enlighten the chief justice. S o m e attempt to grapple with the problems inherent in measuring colonial legislation against the standard of the laws of E n g l a n d is found in 1752 in a proposal of James Abercromby. T h i s British-born barrister, w h o prior to 1743 had served nearly thirteen years as Attorney and Advocate General of South Carolina and had acted since 1749 as colonial agent for North Carolina, in the above year submitted to L o r d H a l i f a x a draft of a lengthy act of Parliament designed to strengthen the colonial administrative system of Great Britain in numerous respects. T o each of the approximately thirty sections of the proposed statute w a s attached certain observations. In commenting upon the law-making powers of the colonies Abercromby observed that It becomes Amazing, That the parliament of Great Britain, have not hitherto attended to the Interior Government of these Colonies by taking under their Consideration, the different powers Exercised by the several Colonies in Making of L a w s , and how far, such powers at this Time of the Day, are, or are not Consistent with the policy and Interest of the Mother Country, or admitting of no Inconsistency in such powers, how far the same are duly Exercised; in this Last Respect, The Statute of the 7th and 8th of King William has said Something, But nothing Effectual, or that can bring the Intention or the Operation of that Act, home T o the Mischiefs to be Remedyd; The Rules therein laid down, are by far too General, whereby to Determine the Validity or Invalidity of plantation Laws; The Original powers given to make Laws, ought to be Considered, as well as the Laws that are made in the plantations under such powers, and how far both Agree with and are now, or may be hereafter, Detrimental to the Interest of the Mother Country, The Act of the 7th and 8th of King William It is true, Declared Such Laws as are 300

Ibid. Whitaker further questioned whether acts confirmed by the crown could be repealed or altered by subsequent acts before such subsequent acts had likewise been con-

firmed. The answer to the query was found in the governor's instructions; see ι Labaree, Royal instructions, # 2 0 5 .

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therein Mentioned, to be null and void, but does not say, where or by whom T o be held null and void, and whether Such Nullity, is to be held as Rules for the Judges of the Courts of L a w to go by, or as Rules for the Crown whereupon to Repeal Such Laws; Judges from the nature of their Office, are, and must be Expositors of Law, and so must Judges in the plantations; Some Rules for their Judgment, both as to Acts of Parliament, and provincial Acts of Assembly, ought to be set forth in their Commission, And their Oath of Office, adapted thereto, But Even then, as Judges may Differ in Opinion, and as a Judicial Judgment, given in Courts of Law, upon a Matter, In Consequence of an Act of Assembly, will not have the same Effect, as a Repeal of the Act, for such Act will still be pleadable in any other Case, till the Act itself Comes to be Repealed; The powers therefore of Making, and of Repealing Laws, and the powers of Reversing Judgments and Decrees given on Such Acts of Assembly in the plantations, Ought therefore to be Examined into, and Suited to the Interest of the Mother Country, as well as T o the private Utillity of Individuals, who may be affected by such plantation Laws. On the question then of whether the powers of making laws possessed by the several colonies were "duly exercised" Abercromby proposed a reform in section 23 of his suggested act. T h e "whereas" clause of this section after paraphrasing section 9 of 7 and 8 William III, c. 22, recited as follows: and for as Much as that, it has frequently happened, and may hereafter so happen, That Laws or Acts of Assembly have been heretofore made and may hereafter be made in the plantations, That are not Agreable to the Laws of this Kingdom in the like Cases, and yet According to the Strict Letter of the Aforesaid Act of Parliament, Such plantation Laws, Cannot be said, T o be Repugnant to the Laws of England, when the Plantations are not Expressly mentioned therein, and the Said Act of Parliament, and more particularly the 9th Clause thereof, being the only Act of this Kingdom, Declaratory of or relating To the Authority of Provincial Legislatures in the plantations, Many and different doubts have therefore thereupon Arisen, And do Still Exist in the plantations, According to their Respective Constitutions of Government, and the Constitution and Institution of provincial Courts of Judicature, and whereby, the Judges of Such Courts, are laid under great difficulties, in point of Judgment upon Such Acts of Assembly So made as aforesaid, from the words of the said Acts of Parliament, and whether the Repugnancy therein mentioned, does Extend to, and Comprehend any other Laws of this Kingdom, but Statute Laws, and Such Statutes only, as do relate to Trade and Navigation, And Such as are therein mentioned, or, whether to Such Statute Laws, or to any other Statutes in any other Sence or Meaning, than where Such Statutes, do particularly mention the plantations, or, whether Such Repugnancy, is not T o be taken and held to Comprehend the Common Law of this Kingdom, where the Prerogative Royal, and the Liberty of the Subject, are concerned, and to Comprehend, all Acts of Parliament that are Made, in Declaration Or Amendment of the Common Law in Such Cases, Relative to the Kings Prerogative, or the Liberty

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of the Subject; And, whether Such provincial Laws or Acts of Assembly, are ab Initio Void, or, only Voidable by his Majestys Disallowance; and whether the Judges of Such provincial Courts of Law in the plantations, when any such provincial Law so made as aforsd, is Given in Evidence, or pleaded in Cases depending before them, ought and are to Adjudge Such Act or Acts of Assembly Ipso facto void, or, only Voidable, and so to be put in practice, till Repealed by his Majesty as Aforesaid. A f t e r this summation of experience under section 9 of 7 and 8 William III, c. 22, the section declared that nothing could contribute more to the good government of the American colonies and to the strengthening of the bond between colonies and mother country than to have the laws of the kingdom relating to the trade and the government of the colonies distinctly laid down and understood by the colonial legislatures and judges. Abercromby's draft then continued in the following manner: W H E R E F O R E for the better understanding of the aforesaid Act, and in order to Enable the Judges of the Courts of Judicature, To give Judgment in Cases where the Legality or Illegality Validity or Invalidity of Provincial Laws or Acts of Assembly may come before them; B E IT E N A C T E D and It is hereby accordingly E N A C T E D by the authority aforesaid, That all By Laws, usage or Customs, which now are, or hereafter may Exist or be made, and be in practice, or that may be pretended to Exist, and be in force in any of these Provinces in America, under whatever form of Government such provinces are, where such Laws By Laws Usages or Customs have been, or may be made, That are Essentially Disagreable to, and Inconsistent with the Common Law of this Kingdom, with Regard to the Prerogative Royal, or the Rights and Liberties of the Subject, or, that are Disagreable To, or Inconsistent with the Statutes of this Kingdom, whereby the Common Law in the aforesaid purposes, may have been, or is altered, Explained or Amended, Or, That are in any ways Inconsistent with, or Oppose the Laws and Statutes of this Kingdom with Relation To the Government or The Trade Navigation or that have any direct or indirect tendency to invalidate or lessen their dependence on this Kingdom in their Government or their Commerce and payment of Revenues, anyways Arising to the Crown in the plantations, whether all, or any of the said Statutes or Statute Laws in Such Cases and Respects, or in any of Such Cases and respects as aforesaid, Do, or do not, Expressly Mention Their Extension to, and Operation in the plantations, (It being the Intention of this Act and it is hereby Accordingly So Declared and Enacted, That the Common, and Such Said Statute Laws of this Kingdom, in all Such Said Cases, be Deemed and held, To be in force in the plantations, notwithstanding the plantations may not be therein Expressly named) or, That are Inconsistent with, and Contrary to Acts of Parliament, which by the Express words of Such Acts, or by the plain Intention and purview of Such Acts, are Expressly or Intentionally Extended To the plantations, So as

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581

to Operate therein, Or, that are not Consistent with, and Agreable to the Natural Rules of Justice and Reason in Similar Cases, all which Laws, By Laws, usages or Customs, That now are, or hereafter may be so made, Inconsistent with, and Disagreable To Reason, and to the Laws and Customs of this Kingdom as aforesaid, or, that are Contrary To the true Intent and Meaning of the aforesaid Act of the 7th and 8th of King William, or of this present Act, (which is hereby Declared to be That all Laws made or to be made in the plantations be as Near as May be Agreable to the Laws usage and Custom of this Kingdom in paralel and Similar Cases) shall be, And they are hereby Declared, to be Illegal, and from The begining Ipso facto null and void, and no ways Obligatory or in any ways Binding in these or in any of these Colonies, and so To be held, in all Courts of Law in Great Britain and Ireland, and in the plantations or in any of them, And all Judges of Such Courts, whether in Great Britain Ireland or the plantations, Ex Officio, Shall and they are hereby required, to take Notice of this, And the aforesaid Act, or any Other Act or Acts of Parliament, whereby the Illegality of Such Acts of Assembly and plantation Laws, usages or Customs So Made as aforesaid, are or may be Declared and set forth, whether Such Act or Acts of Parliament, be, or be not particularly pleaded in Such Cases or in any of them; And all Judgments hereafter to be given by Courts of Judicature in the plantations or in any of them, in favour and Support of Such Act of Assemblys, or Plantation Laws, usages or Customs so made as aforesaid, shall be, and they are hereby Declared, To all Intents and purposes Erroneous. T h e draft further provided that in all commissions henceforward granted to judges in the plantations a clause should be inserted that the judge thereby appointed should hear and determine all matters and causes before him according to the laws of the kingdom relative to the trade and government of the plantations and according to the laws of his particular jurisdiction, provided "Such Provincial Laws are consistent with and not materially Repugnant To, and Disagreable T o The Laws of this Kingdom in Similar Cases." Also all judges in the American plantations were required to take an oath of fidelity in office to determine all matters brought before them according to the aforesaid laws of the kingdom and provincial laws. This oath was to be taken before the governor before entrance upon the execution of judicial office; all judges neglecting to take such oath of office should forfeit their office and be deemed incapable of ever thereafter serving as judge in any of the plantations or elsewhere. 301 While we have found no evidence that this proposal by Abercromby had any effect upon the officialdom of Whitehall, we believe that Abercromby's 301

MS An Examination of the Acts of Paritàment, Relative to the Trade, and the Govern· ment, of the American Colonies, 137-45

(Pa. Hist, and Museum Comm., Pub. Ree. Div., Harrisburg, Pa.; page references are to the fair copy).

582

JUDICIAL AND LEGISLATIVE REVIEW

attempt to cope with the problem merits attention as coming from a barrister who was experienced both in colonial courts and in London administrative circles. While his remedy would not have appealed to many colonial lawyers, the penetrating quality of his statement of the problem cannot be denied. N U L L I T Y UPON LEGISLATIVE REVIEW

During the period upon which we have just been focusing our attention, declaration of nullity upon legislative review suffered an eclipse as an administrative instrument. However, in August, 1741, the Board of Trade received a petition from one Nicholas Rice complaining of a North Carolina act which allegedly deprived petitioner of his office as clerk of the county court, held by royal patent. Claiming that the legislature had no power to vacate a grant made by the crown and passed under the Great Seal, Rice asserted that the act attempting this vacating was a nullity in itself and void ab initio, it not being a matter proper for the exercise of the legislative power. The petition indicates that opinion was still abroad that acts could be declared void ab initio in nonjudicial proceedings, but this was not an instance of repugnancy to the laws of England, but rather of infringement upon the royal prerogative and the act received the ordinary disallowance. 302 A more important episode in the career of declarations of nullity upon legislative review is found some years later in respect to Massachusetts. In 1755-56 three acts were passed in this province unilaterally dissolving the marriages, respectively, of Mary Clapham, Mary Parker, and John Farnum. 303 The reason for these legislative divorces is obscure. The Governor and Coun302 CO ·>/*)6/Κ 56; 3 APC, Col., # 5 5 9 . As a secondary argument petitioner stated that such deprivative power, if it could be exercised, should be exercised with the greatest caution. " T h e party to be affected ought to have notice to defend his property and to be heard by council and witnesses in his defense and the evidence on both sides transmitted home as was lately done in the case of Manning's divorce bill from Jamaica." T h e Committee as reasons for disallowance stated: ( i ) no proof was before the assembly to support the preamble allegations; ( a ) even if the allegations had been made out, the proceeding was not justifiable as it took away the rights and profits of a royal patentee without any equivalent in lieu thereof; ( 3 ) lack of a suspending clause. 803

T h e Act to dissolve the marriage of Mary

Clapham with William Clapham, and to allow her to marry again, related that Mary had been divorced as to bed and board only by decree of the Governor and Council upon proof of William's violation of the marriage contract by desertion, and cohabitation and adultery with another woman (6 Acts and Res. Prov. Mass. Bay, 1 6 5 ) . The act mutatis mutandis for Mary Parker and Phineas Parker contained a relation of desertion and conviction of adultery (ibid., 1 6 9 ) ; the act mutatis mutandis for John Farnum and Elizabeth Farnum related that Elizabeth had been guilty of adultery in the judgment of the General Assembly (ibid., 1 7 0 ) . For the petitions for the passage of the acts of Parker and Farnum, respectively, sec 9 MS Mass. Archives (Domestic Relations, ¡643-1774), 379, 3 9 6 .

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cil had customarily granted divorccs a vinculo,30* but opinion seems to have emerged that that body had no authority to grant such divorces.305 When in the usual course of events the Board of Trade came to report upon these acts, it questioned whether the legislature of Massachusetts or of any other colony possessed the power to pass laws of this nature and consequently whether these acts were not of themselves null and void. 308 The ground of doubt was apparently divergence from English parliamentary practice because of the lack of a preliminary ecclesiastical divorce a mensa et thoro and of a previous verdict at law for criminal conversation. In England private acts of Parliament dissolving marriage had become more frequent with the end of the seventeenth century, although it was not until the accession of the House of Hanover that such acts averaged one a year. In only two early cases were acts made without any ecclesiastical sentence; in several cases there was no previous verdict at law. 307 However, no standing orders of either House of Parliament required the institution of these preliminary proceedings until 1798.308 An additional factor of variation from English practice is found in the fact that two of these acts were procured by wives, a practice unheard of in England before 1801. 300 The only colonial act of divorce which had previously come before the King in Council was the 1739 Jamaica act to dissolve the marriage of Edward Manning with Elizabeth Moore and to enable him to marry again. 810 In August, 1740, the Board of Trade represented for disallowance on the ground 304 A 1692 act provided "that all controversies concerning marriage and divorce shall be heard and determined by the governour and council" (i Acts and Res. Prov. Mass. Buy, 6 1 ) . On July 30, 1759, Judges Lynde, Cushing, Sewall, Russell, and Oliver were directed to find by what rule the governor acted in cases of divorce prior to legislation on the subject. The committee found between 1747 and 1754 seven cases of divorce α vinculo by the Governor and Council (9 MS Mass. Archives [Domestic Relations, 16431774}, 432). But cf. 2 Howard, History of Matrimonial Institutions (1904), 341. 305 In August, 1757, a bill was introduced for enabling the Governor and Council to grant divorces from the bonds of matrimony in certain cases. The preamble recited that in cases of divorce on account of cruelty or of adultery the law had been so construed that however evident and aggravated the offense might be, the Governor and Council could only separate the injured person from

the bed and board of the other, whereby the innocent were not at liberty to marry again (9 MS Mass. Archives [Domestic Relations, ¡643-1774], 4 1 9 ) . But note the later evident change of opinion without any legislative enactment (2 Howard, History of Matrimonial Institutions, 342-43). 308 22 MS Mass. Archives (Foreign Corres., '758-75)> 307

9*

ι Report of the Royal Commission on Divorce and Matrimonial Causes (1912), 11. Cf. ι Clifford, History of Private BUI Legislation ( 1 8 8 5 ) , 400 et seq.; 2 Howard, History of Matrimonial Institutions, 102 et seq. 308 ι Report of the Royal Commission on Divorce and Matrimonial Causes ( 1 9 1 2 ) , 1 1 . 309 Macqueen, A Practical Treatise on the Appellate Jurisdiction of the House of Lords and Privy Council, 474 et seq.; ι Clifford, History of Private Bill Legislation, 4 1 4 - 1 5 . 310 Manuscript copy in Library of Congress (Law Division).

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JUDICIAL A N D LEGISLATIVE REVIEW

that no verdict had been obtained at common law previous to passage of the bill and that adultery was not positively proven by the evidence before the legislature. 311 When the matter came before the Lords Committee, counsel for Manning urged that the Jamaica legislature possessed full power to pass such act, that the objection based on the lack of a suspending clause should not affect the validity of the act. As to the preliminaries required in England, it was argued that with no ecclesiastical jurisdiction in the plantations it was impossible to secure an ecclesiastical sentence. As to the jury verdict, the defendant had demurred on the ground that there was no Mrs. Manning since passage of the act. This was an admission of fact stronger than a jury verdict, especially since no appeal to the King in Council was taken from the overruling of the demurrer. Besides, a jury verdict was not absolutely necessary in English practice, for Parliament always examined the factual evidence independent of such jury verdict. 312 But the Committee, unmoved by this argument, reported the act as unprecedented in the plantations, liable to attendance with great inconveniences, and lacking the indispensable suspending clause, and it was accordingly disallowed in July, 1741. 3 1 3 Despite the strong report against this act, there was no intimation anywhere in the proceedings that the act was null and void ab initio. It is with this background that the Committee referred the Massachusetts divorces to the crown law officers in 1758 to consider and report as to this question of power and nullity. To prevent any sudden proceedings thereon, a caveat praying to be heard in the matter was entered with the Attorney General by William Bollan, the province agent. Attorney General Pratt was inclined to avoid passing upon the general question of legislative authority and to confine consideration to the policy, frame, and manner of passage of the acts. Yet at the same time he candidly doubted whether the colonies possessed power of making such laws, although unprepared to render an opinion therein. Feeling that doubts as to sufficiency of authority would influence the judgment given on the exercise thereof, Bollan insisted upon a general opinion according to the reference terms. Solicitor General Yorke likewise was inclined to avoid entering into the general question, but finally consented to a hearing with the Attorney General after the chancery business of the term. Bollan being unable adequately to prepare for such hearing, it was postponed till after the vacation.314 Conceiving the matter of general importance to all the colonies, Bollan 311 3 APC, Col., # 5 0 2 . A copy of the legislative proceedings and evidence presented is in the Library of Congress (Law Division). 312 This argument is in the Library of Congress (Law Division).

313

3 APC, Col., # 5 0 2 . 22 MS Mass. Archives (Foreign Corres., '758-75), 38-41 (Bollan to Secretary Oliver, Aug. 6, 1758).

314

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585

acquainted the other agents with the reference. Although reactions varied, Bollan felt that most of them would assist him in striving to uphold the legislative authority.814* In April, 1759, Bollan wrote the colony of his intensive researches and consultations in the fields of colonial constitutions and of domestic relations, fully underscoring the difference between the usual disallowances and the threatened declarations of nullity. The legislative authority being expressed in the charter in comprehensive terms, Bollan felt that distinguishing matrimonial matters was a matter of great importance when considered in its natural operation and consequences. A hearing was scheduled to follow the Easter holidays, but press of public affairs might cause postponement. 316 In October no hearing had as yet taken place, November being then named. Bollan wrote that it was "now fully agreed on all hands that this great constitutional question shall be thoroughly discussed and considered, in order to the final and perpetual settlement of it for all the colonies"; nevertheless, the financial burden rested upon Massachusetts.316 Unfortunately there is no record that this momentous hearing ever took place. However, it should be noted that there is no mention that a judicial proceeding was necessary to declare a provincial act null and void ab initio. And certainly a declaration of nullity upon legislative review could not in this instance be justified under the 1696 act of Parliament. Three further private divorce acts passed the Massachusetts legislature in 1757, 317 but the home authorities do not appear to have taken any action thereon.318 Later divorce acts from Pennsylvania, New Jersey, and New Hampshire were disallowed, but the question of voidness ab initio was not raised. 319 31411

Ibid., 41-44· Some insight into colonial divergencies is afforded by the reaction of the South Carolina agent to Bollan's information. This agent stated that the Massachusetts proceedings struck him in a pretty extraordinary light. "I know its what we never yet thought of in South Carolina, much less attempted to carry into execution; even acts that affect private property in but a small degree are not passed without a saving clause, and I am certain no act of the nature you mentioned will; and this being the case with us at present, I think its almost a matter of indifference how this point is determined" (ibid., 35). Bollan commented that the agent failed to distinguish between authority and the exercise thereof (ibid., 42). 315 Ibid., 83-85 (Bollan to Secretary Oliver, April 12, 1759). 316 Ibid., 104-6 (Bollan to Secretary Oliver, Oct. 12, 1759). 317 6 Acts and Res. Prov. Mass. Bay, 173-74, 176.

318

3 ibid., 1054; 4 ibid., 92-93. In Pennsylvania, in 1769, an act was passed dissolving the marriage of Curtis Grubb (7 Stat, at Large Pa., 263). See also 6 Votes and Proc. Prov. Pa., 132-33, 146, 148, 150; 9 Mins. Prov. Council Pa., 564, 566-68. Richard Jackson, counsel for the Board of Trade, in his favorable report on the act omitted any objection for lack of judicial preliminaries (7 Stat, at Large Pa., 626-27). Upon his advice, however, the act was referred to the crown law officers, who neglected to report thereon (5 APC, Col., # 2 5 1 ) . As a result, the act became law under the six months charter provision (7 Stat, at Large Pa., 265). In 1772 the same legislature passed an act to dissolve the marriage of George Keehmle (8 Stat, at Large Pa., 243). In this case there was a previous conviction of the wife for adultery, recited in the act and in the prayer for legislative action (6 Votes and Proc. Prov. Pa., 344). The Board of Trade 319

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Up to this point we have been largely concerned with proceedings in England or with extra-judicial opinions in the colonies. In no place has there been any extended discussion by a colonial court of the status of acts contrary to the laws of England. We now come to the only instance we have seen in which a colonial court canvassed the doctrine of voidness for repugnancy—the 1759-60 cause of Williams, Administrator de bonis non v. Executors of Watson. In this action, brought in the South Carolina Court of Common Pleas, defendant entered a demurrer to a declaration in ejectment. Upon argument of the demurrer on November 27, 1759, defendant insisted that a section of a 1745 provincial act regulating executors and administrators was void in itself as repugnant to the laws of England, or that if not thus void, it did not extend to administrators de bonis non.320 The section in question recited that it frequently happened in the province that persons obtained letters of administration upon suggestion that they were principal creditors of the intestate. Then when they had received sufficient assets of intestate to satisfy their own debts, they deserted the administration or neglected recovery of the remainder of intestate's credits which ought to have been applied toward satisfaction of the rest of intestate's creditors. To correct this abuse it was enacted that no letters of adminisration should be thereafter granted by the Ordinary to any person or persons as principal creditor or creditors to any intestate, but upon special trust and for the benefit of all the rest of the creditors. All debts of an equal nature should be discharged by such administrator in average and proportion, as far as intestate's assets should extend, and no preference should be given among creditors in equal degree. Every such administrator should be thereupon submitted the matter to the Committee to the end that if colonial divorce acts, especially where no suits were instituted in the ecclesiastical courts or verdicts previously obtained at common law, were cither "improper or unconstitutional," the King might give directions to prevent the Pennsylvania acts from becoming intercolonial precedents. Upon Committee advice, the act was disallowed by an instrument under the privy seal dated April 27, 1773 (8 Slat, at Large Pa., 597-600). Later in 1773 the Board of Trade reported upon a 1772 New Jersey act for dissolving the marriage of David Baxter. Disallowance was advised, since the act was liable to the same objections made to previous acts for divorce and imposition was insufficient ground

for dissolution. This act met disallowance accordingly in September, 1773 (5 APC, Col., #265). In the same month a New Hampshire act to dissolve the marriage of Greenwood Carpenter met disallowance on the usual grounds (3 Laws of N.H., 554; 5 APC, Col., p. 580). Further, circular instructions issued on November 24, 1 7 7 3 , forbidding assent to any acts "for the divorce of persons joined together in holy marriage" (1 Labaree, Royal Instructions, # 2 3 9 ) . In June, 1774, a New Hampshire act dissolving the marriage of Eliphalet Pattee was disallowed, but largely because of inconsistency with the above instruction (3 Laws of N.H., 584; 5 APC, Col.,

#295)·

320

MS journal So. Car. Court Common 1754-63, 220, 226.

Pleas,

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587

obliged to sue for such debts as he might reasonably expect to recover or to impower any of intestate's creditors to sue for outstanding debts. 321 Counsel Rattray, for demurrant, argued that under the Carolina charters the legislative power was limited to acts not repugnant or contrary to the laws of England, that despite the proprietary surrender of the charter the constitution of the province was unaltered. Therefore, the law of England at the time of the respective charter grants was to all intents and purposes the law of Carolina, since no provincial act could with propriety be passed contrary or repugnant to the law of England. By the subsisting laws of England at the charter dates administrators might retain assets in their hands, if their debts were in equal degree, to satisfy themselves. By the provincial act in question no time was given to marshal the assets of the intestate—a great hardship on the administrator, which the law of England had carefully avoided. By said laws of England an executor or administrator might pay himself or give preference in case the debts due were in equal degree. 322 Executors in equity, as well as at law, might prefer any creditor in equal degree, or after an action at law one creditor might confess judgment to another. 323 The instant act directed on the contrary that all debts of equal nature should be discharged by the administrator in average and proportion and was therefore repugnant to the laws of England. The word "average" was unknown to the laws of England concerning administrators, although common to the Civil Law. Further, the act could not extend to administrators de bonis non, since it must be strictly, and not equitably, construed. 324 Counsel Rattray concluded his argument with a supposition which though it has not yet, may possibly happen when a case of consequence may be determined judicially in the courts of law here agreeable to the letter of the act of Assembly, sub judice, in the case of an administrator creditor and other creditors. Suppose said he, there was an appeal interposed from the courts of this province in a regular gradation to the King in Council which is the dernier and constitutional way of determining all suits in the last instance from America. How would the judgment of his Majesty in his Privy Council upon that appeal be regulated? In all human probability by and agreeable to the laws of the mother country. If that should be the case then how unhappy must the case and situation of the 321

An Act to Direct Executors and Administrators in the Manner of Returning Inventories and Accounts of their Testator and Intestate's Estates, etc. (3 Stat, at Large So. Car., 666-68). 322 MS Journal So. Car. Court Common Pleas, 1754-63, 227-28. Cited in support were Wentworth, Office and Duty of Executors, 142; 1 Rolle Abr., 226; Blundivell v. Loverdell (1

Sid. 2 1 ) ; Warner v. Wainsford (Hobart 1 2 7 ) ; Briers v. Goddard (Hobart 250); Martin v. Whipper (Cro. Eliz. 1 1 4 ) ; Prince v. Rawson (1 Mod. 208). 323 Citing Waring v. Danvers (1 Peere Williams 295). 324 MS Journal So. Car. Court Common Pleas, 1 7 5 4 - 6 3 , 228-29.

588

JUDICIAL AND LEGISLATIVE

REVIEW

appellate be, who must be the administrator and defendant in the courts here and who, invice, against his inclination by the act of Assembly of this province must be made subject to all the inconveniences which attend executors or administrators who are guilty of devastavits and who waste the assetts of their testators and intestates, by the laws of England? 3 2 5 T o this argument counsel Grindlay, for plaintiff, answered by showing, first, what the law had been as to estates of intestates before the Statute of Westminster II, c. 19; secondly, what were the duties of administrators; thirdly, that the act of assembly was agreeable to the laws of England. 3 2 ® More specifically, Grindlay argued that it was on the basis of an interpretation of 21 Henry V I I I , c. 5, that administration was granted creditors, but that this statute was not of force in the province. A n administrator's interest was more confined than an executor's; executors might give preference and retain debts due themselves, but this power was derived from the testator's will. Administrators did not have that power, because their authority was derived by the strict letter of the law. 3 2 7 It was further argued that the provincial act in question settled the administration on reasonable grounds and had in view the construction of 21 Henry V I I I , c. 5. The eighth clause of the latter act only regarded administrators as principal creditors and did not alter the law of England in any other respect. The assembly, perceiving the inconveniences arising from exercise of the unlimited powers given by the common law, was willing to repress these inconveniences. The common law being the perfection of reason, the act was consonant to reason by letting each creditor share in the assets, if insufficient to pay his whole debt. On the other hand, it was contrary to reason that an administrator creditor should desert the administration; the act made the administrator diligent and vigorous in following the trust reposed in him for the benefit of the creditors. Finally, administrators de bonis non were within the equity and meaning, although not within the letter, of the assembly act. 3 2 8 On the first Tuesday in January, 1760, Chief Justice Michie delivered his decision. Before entering into the claim of voidness for repugnancy, the plaintiff's contention that the act extended to administrators de bonis

non

was upheld. 329 T h e n Michie examined the question whether acts of Parliament extended to the plantations, and on this he took the stand that the common colonial practice of making English statutes of force or re-enacting them by provincial act refuted the opinion that such statutes generally extended to America. T h e K i n g and Privy Council were the dernier resort for all matters 825

Ibid., 229. Ibid., 229. Cited in support were Hensloe's Case (9 Cok,e Rep. 36, 38b) ; Graysbrook v. Fox (1 Plowden 280); Coke, Second Inst., 397-98. 32β

327

MS Journal So. Car. Court Common Pleat, 1754-63, 229-30. 328 Ibid., 230. 329

Ibid., 231-32.

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of judicature in America, and therefore they might properly be said to give laws to America, for they determined in the last instance. A Pennsylvania act recited that the common law took place in America, but that the statute law did not unless specially named. This act was confirmed by the crown, so that it might be said to be the law of America. 330 A South Carolina act made several acts of Parliament of force, declaring the remainder impracticable for the province. 331 The judgment and authority of Parliament also favored this doctrine. The act of 4 George I, c. 1 1 , for transportation of felons contained a specific extension to all the American plantations. If Parliament had thought that the act of itself extended to America, such clause would never have been inserted. Statutes had a local obligation, and many English statutes were passed before the discovery of America. What was not the object of the statute at the time of making could not by any construction be comprehended within it. T h e statute of 18 Edward I relating to the manner of levying fines was mentioned as an example of this doctrine. 332 A 1730 opinion of the crown law officers that no fines or recoveries in England could bar the entail of plantation lands without colonial legislation to that effect was cited as supporting the doctrine. 338 The Chief Justice then concluded discussion of this point with hope that he had satisfactorily shown "that the statute laws of England does not extend to the plantations unless specially named, and that there is more force and weight in the acts passed by our General Assembly than at first view may be apprehended." 3 3 4 Michie then entered upon a discussion of the meaning of "repugnancy" in the phrase "repugnant to the laws of England." N o w by repugnancy, I apprehend is meant a direct opposition or contrariety as in pleading. If the matter all aledged be not directly contrary to what went before, 'tis surplusage and not repugnancy. If it vary's only 'tis called a departure. I am of opinion that the laws of the plantations may differ and vary from the laws of England and yet not be repugnant. T h e King's letters patent or charter of K i n g Charles the Second say that the Assembly shall pass laws, as near as may be agreable to the laws of England, not that they shall be exactly the same. 3 3 5

T o illustrate this, several laws passed in other colonies under the same restrictions and confirmed by the crown were cited. This was alleged to be the 330 ibid., 233. The act referred to was presumably the 1 7 1 8 Act for the Advancement of Justice, and more certain Administration thereof (Charter and Laws Proti. Pa., 3 7 1 ) , confirmed May 26, 1 7 1 9 (1 Charters and Acts of Assembly Pa. [ 1 7 6 2 ] , 74). 331 See the 1 7 1 2 "Act to Put in Force in this Province the Several Statutes of the Kingdom of England or South Britain, Therein

Particularly Mentioned" (2 Stat, at Large So. Car., 4 0 1 - 1 6 ) . 332 MS Journal So. Car. Court Common Pleat, 1754-63, 233-34. 333 See 2 Chalmers, Opinions, 174. 834 M S Journal So. Car. Court Common Pleas, 1754-63, 234. Ibid., 234.

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strongest evidence that such laws were not repugnant to the laws of England, "for the crown can never be presumed to confirm an act that was passed contrary to the power given." A Jamaica act for prevention of lawsuits was alleged to be "expressly dissonent to the law of England," yet confirmed in ι683· 33β By Goffe v. El\in 3 3 7 it appeared that lands in Jamaica would pass without livery and seisin, although livery and seisin was strictly required by the common law. Such practice therefore depended upon Jamaican usage, which was different from the common law. It appeared that the judges had great regard for the Jamaican usage, yet there could be no more immemorial custom in Jamaica than in Carolina.338 In Blan\ard v. Galdy 3 3 9 it was held that plantation laws might differ from the laws of England, and several Barbados acts, although different from the rules of the common and statute law, were confirmed by the crown. In Ellis v. Loyd 3 4 0 the Chancellor was governed by a Nevis act regulating interest at io percent, although that act differed from the laws of England. 341 In Pennsylvania an act prescribing the forms of declaration of fidelity, abjuration, and affirmation established forms extremely different from all the English forms. Yet this law was confirmed by the King in Council in March, 1724/5. 342 Michie concluded this semantic examination with mention of a custom of the town of Denbigh, Wales. By this custom a feme covert with her husband might alienate land by surrender and examination in court, this binding the wife and her heirs as a fine. This custom was not abrogated by 2 Henry VIII, c. 26, which introduced the common law into Wales, although the statute expressly enacted that the laws of England should be of force in Wales and in direct terms abolished the Welsh customs. Yet it did not abolish the custom of Denbigh, for the reason, given by the reporters, that the custom was reasonable and agreeable to the rules of the common law. The Chief Justice pointed out that there was no writ of covenant, no concord, no king's silver, no likeness to a fine. Surrender and examination were all, yet the custom was held to be agreeable to the common law rules and not taken away by an act enforcing the extension of the English common law into Wales. If the custom had been in any manner repugnant to the common law, the statute of 2 Henry VIII, c. 26, must have abolished it. 343 The Chief Justice then stressed the desirability of colonial assemblies assse

Ibid., 2 3 4 - 3 5 . See Laws of Jamaica ( 1 6 8 3 ) , 166. 337 2 Mod. 239. 338 MS Journal So. Car. Court Common Pleas, 1 7 5 4 - 6 3 , 235· 339 4 Mod. 2 2 2 , 226. 340 ι Eq. Cases Abridged 289.

341

MS Journal So. Car. Court Common Pleas,

'754-63, 235-36. 342 See ι Charters and Acts of Assembly Pa. ( 1 7 6 2 ) , 98. For the confirmation, see 3 Stat, at Large Pa., 5 1 4 . 343 MS Journal So. Car. Court Common Pleas, 1754-63, 236. T h e reporters mentioned were

JUDICIAL A N D LEGISLATIVE REVIEW

591

similating their laws to those of England as near as local circumstances permitted. But in their deviations they and they alone in the first and his Majesty in his Privy Council in the last instance were the judges . . . whatever dissonance it [the 1745 act] may have to the laws and customs of England or how repugnant soever it may be to them, it is apprehended that this court can give no relief. For if this court has a power of judging whether the laws which the General Assembly made are void or not, they have a power superior to the General Assembly. But this is a power which I conceive this court has not. Judges in England are the proper expositors of Acts of Parliament when they are made, but I don't remember that they ever questioned the power of making laws.3·14 The plantations are limitted and dependant governments. They have power to make laws, and the King has reserved to himself and his Privy Council a right of judging of those laws and till the King thinks fit to repeal them they continue their full force and obligation. This power of repealing the King has reserved to himself and to himself alone, with the advice of his Privy Council. But if the courts of America had a power to adjudge them void it would anticipate the King's judgment and would be two powers of repealing, which is inconsistant with the nature of our constitution; this would be for the courts jus dare and not dicere. It is easy to see the consequence of those arguments. For if this court has a power to adjudge our laws to be void, they have a power to dispense with them. Such a power will be naturally inferred and everything will be left to precarious and arbitrary will and pleasure.345 Of things void and voidable there are known distinctions. If a judgment is erroneous 'tis not absolutely void but voidable by writ of error, but it is good and effectual till it be reversed. If an infant seals a deed 'tis not absolutely void because he may assent to it and confirm it when he comes of age or he may avoid it by pleading. So our acts of Assembly if they are contrary to the King's instructions or repugnant to the laws of England, they are not void, for the King may confirm them. But they continue in force untili they are repealed or made void.14® In conclusion the Chief Justice stated that since acts of Assembly "must bind and have an obligation untili they are repealed and made void by the King in his Privy Council," the demurrer was overruled. 347 From this case it appears that the doctrine of judicial review of colonial acts had not been received in South Carolina and that its very existence was denied on the basis of lack of precedents of acts of Parliament voided by the courts at Westminster. As a corollary, the argument of demurrant was perverted into a 3 Dyer 363b; Cornwals Case (Moore K.B. 670); Tanistry's Case (Davis 28, 37). 344 MS Journal So. Car. Court Common Pleas, •754-63, 237·

s 5

·' Ibid., 237. " ibid., 237-38. 3J7 ¡bid., 238.

3
3 l . i î 6 , 454 Berkeley of Stratton, Lord, 324, 375 [ 1 0 9 ] Bermuda act of 1691 for regulating appeals, 86, 258 act of 1694 for regulating appeals, 86 act of 1703 for the liberty of the subject disallowed, 175, 475 [29] act of 1704 for regulating appeals, 258 act of 1707/8 for regulating appeals, 233 act of 1744 for establishing Court of Errors, 258-59 act of 1761 for rendering more effectual act of 1744. 259 acts disallowed for omission of suspending clause, 605 admiralty jurisdiction, 88 appeals regulations colonial acts, 86, 188, 233, 258, 259 colonial acts influenced by English acts, 259 governors' instruction, 2 1 9 [ 2 3 ] , 233 [89], 258, 259 appeals to Lords Committee, 73 appeals to proprietors, 51 [ 3 3 2 ] , 74-75 Assembly, 259 chancery appeals, 86, 258 charter, absence of appeals reservation in, 75 charter vacated, 75 courts Chancery, 258 Errors, 258, 259 General Assize, 86, 258, 159 Governor and Council, 78, 86 criminal appeals, 307-8 criminal appeals regulations; governors' instructions, 84, 240 [ 1 2 8 ] enforcement of Orders in Council in, 342 extension of acts of Parliament to, 469 [ 11 ] Governor, see Goddard, Capt. John; Hope, John; Popple, William; Richier, Isaac governor's instructions, 81, 84, 2 1 9 [23]» 233,240(1281,258,259 intracolonial appeals regulations; colonial acts, 86, 258-59 intracolonial appeals regulations, governors' instructions, 78, 109 [ 2 1 8 ] , 2 1 9 [ 2 3 ] , 233 [89] jurisdiction of Bermuda Company, 74 partible inheritance on intestacy in, 568 [240] right of appeal established, 75

719

vice-admiralty appeals, 188 see also Proprietary colonies Bermuda Company jurisdiction, 74 vacation of charter, 75 Beverley, Robert, on extension of English law to Virginia, 473-74 Bill of exceptions conformity of colonial practice to English, 353 content of at common law, 353 not allowed in English criminal appeals, 1 1 1 omitted from Massachusetts practice, 377 omitted from New England practice, 3 1 0 see also Writ of error Bill of Rights, see Acts of Parliament, Statute Wm. & M., St. 2, c. 2 (1689) Billop, Captain Christopher, 73 [ 1 3 ] Bills of credit, colonial depreciation of, 500 evaluation of, 337-38, 340-41, 502-3 inquiry of Board of Trade, 601 legal tender status of, 500, 604 [405] regulation by act of Parliament, 495-96, 500, 599-600, 601, 602 [402] regulation by governors' instructions, 599, 602-3, 605 suspending clause required, 599, 605 see also under names of particular colonies Bird, Sir William, Dean of the Arches, 25 [ 1 5 9 ] , 29 [ 1 8 3 ] Bingham, Col. John, Governor of Guernsey, 39

r*5*]

Bishops in House of Lords, 657 see also Durham, Bishop of; London, Bishop of; Sodor and Man, Bishop of; Winchester, Bishop of Blackstone, Sir William, Justice of Common Pleas on extension of common law to colonies, 2 1 1 on legal effect of governors' commissions and instructions, 526 on nature of Bankruptcy Acts, 492 [ 1 0 1 ] on settlement of intercolonial boundary disputes, 420 on vice-admiralty appellate forum, 191 Bladen, Colonel, 599 [ 3 9 1 ] Blair, John, Virginia Judge, 371 [90] Blair, William, council clerk, 595 [366] Blakiston, Nathaniel, Governor of Maryland, commissions, 177 inquiry as to vice-admiralty appellate forum, 177-78 Bland, Giles, 96 Bland, Richard on legal effect of governors' instructions, 616

720

GENERAL INDEX

Β Unkard, John, Provost Marshal of Jamaica, 470 Blathwayt, William, surveyor and auditor general of the revenues for New England, 61 [399]. 144 [59]. 1 5 a [ " * ] . [286] Board of Council proposed to hear Quebec appeals, 295 [ 1 5 4 ] Board of Trade, 1 5 7 [ 1 5 3 ] , 177-78, 2 1 6 , 232 [88], 233, 234 [95], 270, 3 0 1 , 347, 349, 360. 379. 386, 393, 398, 405, 407, 410, 4 1 5 , 418, 427 [60], 428 [ 6 1 ] , 443, 446, 555, 558, 582, 662 administrative control of colonial courts, 34648, 660 administrative jurisdiction, 134, 3 4 ; advice in judicial matters, 302, 306, 34$, 348, 369, 430, 432, 444-45, 450, 458, 558-59 appeals, complaints, etc., referred to, 1 3 7 , 138, 140, 1 4 1 , 1 5 3 , 158, 184, 202 [386], a ° 3 [ 3 8 7 ] , 2 1 7 , 280, 344-45, 443. 444. 450, 557. 6 " appeals from, security required, 450 charges against nonroyal colonies, 146-47, 148 [90], 150-51, 348 commission, 134-35, 344, 345 complaint jurisdiction, 1 3 5 , 197, 202, 345, 346-47 composition, 134 counsel, 349; see alto Fane, Francis; Jackson, Richard; Lamb, Matthew; West, Richard drafting of boundary commission instructions, 445, 450-51 drafting of instruments governing appeals, 348 established, 72, 134, 1 3 5 failure to achieve reforms, 663 frame of government for Senegal and Gambia, 268 functions, 3 1 2 [268] influence of, decline, 349 inquiry into basis of vice-admiralty jurisdiction, 182-83 inquiry into colonial judicial procedure, 34546 inquiry into legislative divorce in Mass., 583 inquiry into royal proclamation power in colonies, 570 inquiry into royal repeal of confirmed colonial acts, 571 inquiry into state of colonial paper currency, 601 inquiry into status of Guadeloupe, 499 instructions to governors, see Governors' instructions judicial jurisdiction declined, 344-45 nomination of boundary commissions, 445, 450, 459

nomination of colonial councilors by, 348 nomination of commission of review, 428 on appeals by customs officers, 139 on binding effect of appealable minimums, « 5 [58] on control of vice-admiralty jurisdiction, 18485 on employment of boundary commissions, 453. 456. 457. 461. 462 on Gibraltar judicial system, 268 on interpretation of governors' instructions of 1753, 409, 4 1 1 , 414 on Jamaica chancery appeals, 236-37 on legal effect of treaties, 531 [34] on Md. intracolonial appeals regulations, 253 on membership of N.J. assembly, 598-99 on nonappellate judicial action by Council, 154, 202-3 on provision for legislative review in Pa. charter, 635 [570] on reform of Barbados appeals regulations, 218, 2 1 9 on reform of Barbados chancery appeal rules, 217-18 on reform of Jamaica council, 228 [ 7 1 ] on reunion to crown of nonroyal colonics, '47. 151 on right of appeal in Connecticut, 141 on right of appeal in N.Y., 159-60 on right of appeal in R.I., 141 on special verdicts, 154 on vice-admiralty appellate forum, 178, 183, 348, 662 on Va. governor's instructions, 614-15 on wood-cutting in Mass., 332 powers, 134-35, 344"49 procedure consultation of crown law officers, 139, 144, 145, 178, 180, 1 8 1 , 184, 225 [58], 229, 232 [88], 3 0 1 , 305 [226], 349, 425, 558 report, 1 4 1 , 144, 184, 187 [307], 202, 203 [387], 253 review of colonial legislation, 155, 222, 249 [ 1 8 3 ] , 2 5 1 , 253, 348-49, 455-58. 46>. 487, 492, 504, 523, 532, 533-36. 549 [ 1 2 1 ] , 583-85, 592, 597, 606 [430], 607, 608 [439], 609 [445], 6 1 1 - 1 2 , 629-30, 632, 633 [563], 636, 640, 641 Bochilcr, Stephen, 51 Bollan, William, counsel, Massachusetts agent, 164 [ 1 9 1 ] , 294 [ 1 4 4 ] . 330. 421 [ 1 6 ] , 431 [84, 86], 435, 4 5 1 . 584-85 on bill of 1748/9 for enforcing governors' instructions, 602 [ 4 0 1 ] , 603 [402]

GENERAL INDEX on bill of 1751 for control of R.I. public credit, 603 [403] on statute 24 Geo. Π, c. 53 ( 1 7 5 1 ) , 603 Bontein, Thomas, naval officer, 356 Boone, Thomas, Governor of South Carolina puzzled by instructions of 1753, 386-90 Booth, counsel, 549 [126] Borden, Samuel, 247 [167] Bordley, Stephen on extension of acts of Parliament to Maryland, 483 [70] Bordley, Thomas, 229 [75] Boreland, John, 639 [$79] Borough English tenure, 565 Bosanquet, John Bernard, Justice of the Common Pleas, 203 [408] Boston (Massachusetts) regional vice-admiralty court established, 191 Boundary disputes, intercolonial, 52, 55, 12127, 165, 206, 234, 244, 250 [196], 261, 294, 3 1 1 - 1 2 , 318, 322-23, 326-27, 348, 41822, 442-63 jurisdiction of Court of Chancery, 420 jurisdiction of common law courts, absence of, 420 jurisdiction of Privy Council, basis of, 41822 opinion of Blackstone, 420 opinion of Colden, 421-22 opinion of Delancey, 421 [16] opinion of Hardwicke, 420 opinion of Mansfield, 420-21 opinions of Paris, 421, 454, 4 ; ; [234], 457 [239], 462 [277] opinion of Wearg and Willes, 420 [8] opinion of Yorke (P.), 419-20 possible ways of adjudicating. 418-19 precedent of Welsh lords marchers, 420-21 prerogative in settlement of, 422 settlement by appeal from colonia! adjudication, 419, 422 settlement by appointment of one governor for both colonies, 457 [238] settlement by colonial legislation attempted, 449, 451» 454-58 setdement by original proceedings in Privy Council, 418, 420-21, 422 settlement by royal commission in colonies, 55, 121-22, 124-25, 3 1 1 - 1 2 , 322, 348, 41822, 442-63 settlement by royal commission in England, 457 [239]. 458 Bow (New Hampshire), proprietors of, 234, 449 Bowdoin, James on right of appeal in Mass., 164-65

721

Boydell, John, register of Mass. Court of Probates, 569 [253] Bradford, William, 451 Bray, James, 504 Bray, Thomas, $04-; Brenton, Ebenezer, 200 Brenton, Jahlcel, Collector and Surveyor of N. England appeals of, 93, 105 [187], n o [223], 137 [37], 148 [86], 308 enforces Navigation Acts in Mass., 138-39 hostility to nonroyal colonial governments, 146 Brewster, Captain Edward, 42 Bridges, John, 303-4 Bridgewater, Earl of, 65 [417, 422], 367 [66] Brislane, Michael, 242 Bristol merchants petition for extension of English law to Jamaica, 478 [39] Brooks, Caesar, 307 Brougham, Henry, Lord, Lord Chancellor on rehearings by Privy Council, 318 [290] Broughton, Sampson Shelton, Attorney General of New York, 298, 299, 300 [184], 302-4 Brown, Jeremiah, 204 Brown, John, counsel, 564 [225] Brown, William, 193 Browne, J., counsel, 448 [192] Buchanan, George, 490 Buchanan, Neil, 490 Buck, Enock, 76 Buckingham, Duke of, 64 [417] Bulkeley, Gcrshom on distribution of intestate estates in Conn., 538 [66] on gavelkind in Conn., 541 [83], 566 [234] Bulkley, John on Mohegan claims in Conn., 435 [109] Bunyan, Arthur, 148 [86] Burd, Edward on extension of acts of Parliament to Pennsylvania, 521 Burdett, Rev. George, 50 Burnet, John, 204 Burnet, William, Governor of Massachusetts, 556 [ 1 7 3 ] Burnet, William, Governor of New Jersey on membership of Assembly, 598-99 Burnet, William, Governor of New York, 239 [115] Burton, Thomas, 45 [291] Burwell, Frances Bray, 505 Burwell, Lewis, 348 [495], 505 Butler, James, 148 [86], 308 [245] Butler, Rebecca, 272 [2]

722

GENERAL INDEX

Byfield, Nathaniel, 533 [48] Byfield, Thomas, 148 [ 9 1 ] By-laws, corporate analogy of colonial legislation to, 523, 52526, 554. 556, 558, 559 [ > 9 i ] . 569-70, 631 judicial review of in England, 525 legal effect of confirmation of, opinion of Holt, 570 [260] legislative review of in England, 525 Cabinet Council distinguished from Committee of the Whole, 135 Caesar, Sir Julius, Master of Requests referee in Channel Islands matter, 24 [ 1 3 8 ] Calais, 88, 403, 473 [20] Calverly, Edmund, 124, 126 [340] Calvert, Charles, deputy governor of Maryland, 67 Calvert, George, Secretary of State referee in Channel Islands matters, 29 [ 1 8 3 ] Calvin's Case, significance of, 466-69 Camden, Lord, Lord Chancellor on nullification of Mass. act of pardon and indemnity, 633 [563], 634 [568] Gamm, Rev. John activities in Parsons' Cause, 609 [447], 6 1 1 , 612, 615, 616, 618, 619, 621, 623-25 Campbell, John, 200 Campbell, Captain John, 4 1 2 Canada, see Quebec Cannon, William, 244 [ 1 5 3 ] Canterbury, Archbishop of, 167, 327, 546 [ 1 0 9 ] , 6 1 1 ; see also Laud, William Cardiff, Thomas, 2 3 : [ 8 1 ] Cardigan, Earl of, 420 [ 1 1 ] Carcw, Lord referee in Channel Islands matters, 29 [ 1 8 3 ] Carey, James, 309 Cargill, James, 164 [190] Carleton, Sir Guy, Governor of Quebec confuses disallowance with nullification, 626 [537] instructions, 235, 236 Carlisle, Charles, Earl of, Governor of Jamaica instructions, 89 [92] Carlisle, John, Earl of, proprietor of Barbados charter of 1627, 43, 67 [434] Carolina appeals to proprietors, 51 [ 3 3 2 ] charter of 1663, 53, 465 [ 3 ] , 587 extension of acts of Parliament to, 474-75 right of appeal denied, 145, 146 [ 7 2 ] , 147 vice-admiralty appeals, 145-46, 308-9 vice-admiralty court at Charleston, 145, 146 [72]. 308-9, 325 [ 3 3 5 ]

see also North Carolina; Proprietary colonies; Royal colonies; South Carolina Carr, Sir Robert, royal commissioner, 55, 123 Carroll, 244, 250 [ 1 9 6 ] Carroll, Charles, 255 Carter, Landon on legal effect of governors' instructions, 61516 Carteret, Charles de, jurat of Jersey, 282 Í 7 1 ) . 285 [88] Carteret, Edward de, bailiff of Jersey, 282 [ 7 1 1 Carteret, Sir George, proprietor of New Jersey, 53 [344]. 454 Carteret, Heller de, 1 3 [74] Carteret, John de, 23 [ 1 3 5 ] Carteret, Philip, Governor of East New Jersey, 127 Carteret, Sir Philip de, bailiff of Jersey, 30 [190, 191] Cary, Richard, Leeward Islands agent, 203 [3 86] Cartwright, George, royal commissioner, 55, 123 "Cases" of parties, see Appeal, procedure; Cases of parties Cassally, Andrew, 237 [ i n ] , 274 [ 1 0 ] Cater, Everard on Barbados appeals regulations, 2 1 7 [ 1 5 ] , 218 [ 1 7 ] Chaddock, statutory draftsman, 177 [ 2 5 3 ] Chamberlain, Lord, 63 [ 4 1 2 ] , 64 [ 4 1 3 ] Chamberlain, Richard, secretary of New Hampshire, 1 1 7 [266, 267] Chambers, John, counsel, 518 [ 2 1 3 ] Champante, John, agent of New York, 302 [203] Champlin, George, Rhode Island Comptroller of the Customs, 226 [59] Chancellor, Lord, 1 2 , 277 [30], 295 [ 1 5 4 ] , 3 1 7 , 467, 525; see also Camden, Lord; Ellcsmere, Lord; Hardwicke, Earl of; Jeffreys, George; Keeper, Lord; King. Peter; Loughborough, Lord Chancellor of the Exchequer, 38 [244] Chancery, Court of, 9, 12 [68], 14, 4 1 , 174, 277 [30], 3S6 [ 1 6 7 ] , 436 [ 1 2 1 ] , 489, 491, 493 [ 1 0 6 ] , 630-31 admiralty jurisdiction of, 193, 194 [342] jurisdiction over boundary disputes, 420 Chancery appeals, 88, 207, 236-40, 319, 3 5 1 , 659 applicability of governors' instructions to, 2 7 1 , 662 heard by Committee of the Whole, 1 1 2 - 1 3 heard by Court of Arches, 167 heard by Lords Committee, 73 proportion of reversals, 660

GENERAL INDEX record supplemented, 378-79 reforms proposed by Drayton, 210 reforms proposed by W . Smith Jr., 221 scope of review, 378-79, 654 see also under names of particular colonies Chancery courts, colonial liability to err, 659 Chancery decree analogy of Order in Council, 316-17 Channel Islands appeals regulations, 77, 282; see also Guernsey, appeals regulations; Jersey, appeals regulations appeals restricted to Privy Council, 11, 12 bailiffs, 6, 15 [85], 20 [110, 112], 21 [120], 22 [129], 23 [130], 26 [160, 164], 27 [169, 170], 28 [ 1 7 7 ] . 35 [218], 39, 207 [410, 4 1 1 ] , 284 Charter of John, 7 [20], 8 courts Assizes, 6 Eyres, 6, 10-11 insular commissions, 6, 11, 16, 17-18, 19, 21-22, 24, 25 [ 1 5 9 ] , 26, 28, 35, 38, 418 Royal Courts, 6, 18, 22 [129], 26-27, 97. 98, 284, 288, 343 decrease in number of appeals from, 664 doleance, see Doleance enforcement of orders in council in, 343, 481 feudal relationship to King, 42 greffier, 35 [220] insular appellate review, 8, 282-89, 4 ° ° judicial maturity, 78 jurats, 6, 13, 14, 15 [85], 16 [87, 89], 17 [91], 18 [96], 20 [108], 21 [120], 22 [129], 23 [130], 26 [164], 27 [170], 28, 39, 284, 309, 343 [449]. 400 [226] jurisdiction of Committee of the Whole, 136 jurisdiction of Privy Council, appellate, 4-5, i l , 12, 63 jurisdiction of Privy Council, original, 206-7 jurisdiction of Star Chamber, 11, 14, 33 [211] legislation, conciliar control of, 593-95 legislation nullified by exercise of prerogative, 596 legislation nullified by Privy Council, 528, 536> 593. 594. 595 legislation reviewed only on complaint made, 594 review of, absence of procedure for, 593 review of by courts preferred by Privy Council, 594, 595 subjected to legislative review, 593, 594 medieval status, 5-12 precedents, 5, 61, 70, 77, 87, 208, 212, 215,

7*3

418, 429. 468, 528, 536, 655-56, 66a privileges of, 7 right of appeal, opinion of Paulet, 12 [68] warden, 6, 11 see also Alderney, Guernsey, Jersey Charitable Uses, Statute of, see Acts of Parliament, Statute 43 Eliz. c. 4 (1601) Charles I, King of England, 3, 25, 37, 44 Charles II, King of England, 35, 58, 63, 71, 76, 89, 123, 423, 440, 526 Charles, Robert, New York agent, 408, 409, 455. 457 Í239]. 458 [249] on bill for enforcing obedience to instructions, 601 [398], 602 [399, 400, 402] on Statute 24 Geo. II, c. 53, 603 [404] Charleston (South Carolina) regional vice-admiralty court, 191 Chartered colonies analogy to corporations, 525-26 charges against, 146, 147, 168 crown control of, 663 governors' instructions in, 251, 600, 601, 604 imperialistic hostility to, 146-48 opposition to legislative review in, 295 reforms proposed by Abercromby, 168-70 reunion to crown proposed, 146-49, 151 right of appeal in, 74-77, 138, 167-71 see also Charters, royal; Connecticut; East India Company; Georgia; Massachusetts Bay; Rhode Island; St. Lucia; St. Vincent Charters, royal analogy of colonial and corporate charters, 525-26 appeals regulation by, 53, 76-77, 170-71, 24344, 248, 268 drafted by Board of Trade, 348 effect of absence of provision for legislative review, 549 extension of English law to colonies by, 46566, 485-86, 548 [ 1 1 9 ] , 587 limiting effect on colonial legislation, 46566, 468-69, 524, 525, 548 [ 1 1 9 ] , 549, 550. 553-55. 556, 558, 564. 587 no reservation of appeals in early charters, 41-42, 48, 5 ' - 5 2 . 54-58 reservation of appeals in, first included, 49. 53 see also Chartered colonies; and under names of particular colonies Checkley, John, 336 Chesebrough, Elihu, 161 [178] Chew, Benjamin, counsel on necessity of special verdict, 363-64 Child, Robert remonstrance of, 45-48 Cholmondeley, Earl of, 324, 564 [223] Christian, Cornelius, 645

GENERAL INDEX

724

Christian, William, 1 7 1 , 174 [ 2 3 2 ] Christopher, Richard, 140 [ 4 7 ] , 149 [93] Judge of Conn. Court of Probates, 538 [69], 541 [80] Church of England establishment in S.C., 534 establishment in Va., 3 1 7 , 3 7 1 , 607-26 liberty of appeal in N.Y., 222 opponents of Quakers in Pa., 243 [ 1 4 6 ] "orthodox" minister controversy in R.I., 323, 327, 328 Parsons' Cause in Va., 328, 597, 605, 60726, 657 see also Bishops; Canterbury, Archbishop of; York, Archbishop of Clapham, Mary, 582 Clapham, William, 522 [ 3 0 3 ] Clarendon, Earl of, 52, 55 [ 3 6 3 ] Clark, Captain Samuel, 572 Clarke, George, Lieut.-Governor of New York on instructions, 346 Clarke, William, 629 Clark, Samuel, Jr., 572, 574, 376 Clay, Stephen, 390 [ 1 8 2 ] Cleaver, Charles, 307 Cleeve, George, 50-51 Cleland, Colonel agent of Society for the Propagation of the Gospel, 222 [ 4 1 ] Clifton, William, Chief Justice of West Florida, 200 Clinton, George, Governor of New York on N.Y.-N.J. boundary dispute, 455 Cobham, Lord, Governor of Jersey, 593 [ 3 5 3 ] Cockburn, William, 207, 225 [58] Cockpit, 272, 289, 322, 370, 442, 458, 507, 562 [ 2 1 2 ] , 5 7 1 , 652 Codrington, Christopher, Governor of Leeward Islands as admiralty judge, 182 complaints against, 202 [386], 203 [387], 345 [ 4 5 5 ] . 347 on extension of acts of Parliament to Leeward Islands, 474 Coffee houses in London, 277, 284 Coffin, Ebenezer, 639 [579] Coke, Sir Edward Attorney General, 467 [6] circulation of books in colonies, 473 opinions on extension of common law to Ireland, 212 on extension of English law to new accessions, 467-68 on functions of Privy Council, 316 on judicial review of acts of Parliament, 521

on king's power to adjudicate in person, 210, 2 1 1 on legal effect of acts of judge without jurisdiction, 651 on legal effect of legislative review of corporate by-laws, 525 on Parliament in Ireland, 469 on right of appeal, 75 [20] on royal prerogative in dominions overseas, 468-69 on running of writs outside the realm, 10, 469 on use of special commissions in Channel Islands, 418 on writs of error, 376 report of Calvin's case, 467 use of precedents, 473 Coke, John, Secretary of State, 30 [ 1 8 7 , 1 9 1 ] , 31 [ 1 9 3 , 195] Colden, Cadwallader, Lieut.-Governor of New York in Cunningham v. Forsey controversy, 3 9 1 410 lawyers' opinion of, 393 [196, 1 9 7 ] , 440 [135] motivation of, 393-94 not a lawyer, 392, 393 [ 1 9 6 ] opinions on general verdicts, 4 1 2 on history of appeals and writs of error, 400-401 on interpretation of instructions of 1753, 392, 393. 398-400, 405-6, 407, 414, 663 on legal status of Mohegans, 434 on N.Y.-N.J. boundary dispute, 456 [238] on settlement of boundary disputes, 42122 on third commission of review in Conn.Mohegan dispute, 433, 434-35 on use of written evidence in N. England, 399 Cole, Samuel, 86 [ 8 3 ] Coleman, Rev. Benjamin on legal effect of confirmation of colonial laws, 569 [256] on meaning of "repugnant to the laws of England," 529 [26] on significance of Philips v. Savage, 563 [221] Collins, Samuel, counsel, 200 Colonial assemblies, see Assemblies, colonial Colonial councils, see Councils, colonial Colonial governors, see Governor, colonial Colonial judicial systems, see Judicial systems, colonial Colonial legislation, see Legislation, colonial

GENERAL INDEX Colonies legal status of, 296 [ 1 6 3 ] , 417, 491-92, 522 [ 2 3 · ] . 591 opposition to enforcement of Orders in Council, 328-44· 3 5 1 see also Chartered colonies; Proprietary colonies; Royal colonics; and particular colonies Columbier, Anthony, 496-97 Commissioners for examining accounts, 3 1 2 14 Commissioners, insular, see Channel Islands, courts Commissioners for Foreign Plantations, 47-48, 50, 51 Commissioners, Lords, see Admiralty; Customs; Prize Appeals; Treasury; Victualling the Navy; etc. Commission of Enquiry opinion of Northey, 207, 225 proposed in New Jersey, 369 Commission of review, 32, 3 1 1 , 429, 453 in Conn.-Mohegan controversy, first commission, 428-29, 431, 433, 440 in Conn.-Mohegan controversy, second commission, 430-32, 440 in Conn.-Mohegan controversy, third commission, 432-36, 663 in Mass.-RJ. boundary dispute, 452-53 Commission, royal, 13, n o [223] appeals from, 450 appeals referred to, 16, 17-18, 19, 21-22, 26, 28, 35, 38, 43. 97. " 0 [ « 3 l . 288 in Channel Is., see Channel Islands, courts of 1664 in N. England, 55-58, 123 to examine Mohegan claims, 425-26 to setde boundary disputes, 55, 121-22, 12425, 3 1 1 - 1 2 , 322, 348, 418-22, 442-63 to settle Mass.-N.H. boundary, 445-46, 448 to setde Mass.-R.I. boundary, 450-52 to settle N.Y.-N.J. boundary, 459-61 to settle extent of Fairfax grant, 455 [233] to settle Kennebec Company controversy, disapproved, 455 [233] see also Commission of inquiry; Commission of review Commissions, governors', see Governors' commissions Committee for Trade and Foreign Plantations, see Lords Committee of Trade and Plantations Committee of the Whole Council, 135, 149, 276, 281, 369, 555 appeals referred to, 138, 146, 150, 153, 157, 163, 174. 1 8 1 [278]· 182, 205 [396, 397], 217, 273, 274 [ 1 1 ] , 278, 283, 436 attendance. 294, 323-24. 326 [338], 3*7. 367

7*5

[66], 375 [ 1 0 9 ) , 427 [59], 545 [ 1 0 9 ] , 564 [ 2 2 3 ] . 575 [288) difficulty of getting quorum, 324 composition, 323-24 concept of appellate function limited, 325, 351-52. 356 continuance of, 136 distinguished from "cabinet council," 135 distinguished from Lords Commissioners for Prize Appeals, 135 [24] distinguished from councilors sitting to hear colonial ecclesiastical appeals, 136 [24] doleances referred to, 280 extension of policy of statutes to colonies, 499-503 felony appeals attempted, 241-42 in Bayard case, 303, 304 in Conn.-Mohegan controversy, 427-28, 437, 438-42 in Cunningham case, 408-10 influence of law lords, 324 in Mass.-N.H. boundary dispute, 445, 44749 in Mass.-R.I. boundary dispute, 450 in Parson's Cause, 621-23 interpretation of colonial legislation, 503-14 interpretation of instructions of 1753 conjectural, 414 jurisdiction, 135-37 legislative review of colonial legislation, 52324. 584. 586 [ 3 1 9 ] , 606, 613-14, 632-33, 637. 640, 644 procedure, 633 [563] on special verdicts, 353, 359 on appeals from general verdict in N . England, 355 on Barbados appeals regulations, 2 1 7 on meaning of "current lawful money of N. England, 501-02 on Minorca appeals regulations, 267 on N. England admission of new evidence on appeal, 375 packing attempted, 326-28, 657 policy on extension of English law, 661 policies on nullification of colonial legislation, 635 on procedural error below, 379, 383 on record of proceedings below, 309 on time limitations for appeals, 278 policy reasons influential upon, 328, 661 procedure appearance by respondent, 275-76, 289 consultation of crown law officers, 369, 409. 584 decisions outside report, 3 1 4 - 1 5 default entry, 276 docket, 275

726

GENERAL INDEX

Committee of the Whole, procedure (Coal.) errors not assigned below, 296 hearing, 138, 150, 153, 157. · 7 4 . 205 [397]. 273. 274 [ " ] . 276-77. 278, 284, 289, 290, 293-94, 295, 307, 3 3 1 , 341. 343. 356. 367 [ 6 6 ] . 427-28, 43841, 448, 477, 501, 505, 510, 517, 54650. 559. 561. 613-14, 621-23 hearing, delay, 276-77, 284, 437 [ 1 2 8 ] , 438 [ 1 3 2 ] hearing ex parle, 277, 284, 293, 314, 317, 336, 342, 503 K.B. error practice followed, 276 motion for hearing, 275, 184 order for hearing, 275, 276, 278, 284 reading of petition and appeal, 290 record scrutinized, 290 reference of cases involving accounts, 312»4 rehearing, distinguished from resettlement of order, 3 1 6 rehearing, possibility of, 317-18, 477 report to Council Board, 149, 150, 153, 157. ' 7 4 . 181 [278], 182, 206, 207-8, 217. 225 [59], 231, 242, 278, 280 [57, 62], 281 [63], 284, 292 [ 1 3 3 ] , 303, 307, 314-16, 326, 3 3 1 , 342, 343, 35556, 357. 358, 375. 379. 383. 408, 428, 4 4 2 , 448, 452. 453. 477. 491. 498, 503. 506, 510-11, 514, 5 1 7 , 550-51, 5 6 9. 623, 628, 650 report to Council Board, nature of, 316, 480 report to Council Board, settlement of, 315 reluctance to reform, 355-56, 359, 416 summons of respondent, 275, 276, 277 voting, 325 [ 3 3 5 ] weakness of, 276 standing orders, 276-77 subcommittee employed, 136 Committees of Privy Council, see Privy Council Common law existence presumed in acts of Parliament, 466 extension to colonies, 2 1 1 - 1 2 , 400, 401-2, 403, 404, 547-48, 550, 553, 574 [283, 284], 656, 660, 661 adjudications of English courts, 466-73 adjudications of Privy Council, 476-78 by charter provision, 465, 466, 485-86, 529. 531. 548 [ 1 1 9 ] . 553-55. 587 by instructions, 468 by migration, 2 1 1 , 469, 495, 656 by royal proclamation, 494-95 influence of English cases, 473 opinion in colonies, 473-76, 477-78, 48487, 559-60, 661

opinion of Coke, 467-68 opinion of Holt, 471, 472 opinion of Hutchinson, 520-21 opinion of Keith, 484 opinion of Law, 574 [284 J opinion of Northey, 472 opinion of Pemberton, 471 opinion of Randolph, 485 opinion of Sharpe, 574 [284] opinion of Shower, 472 opinion of Vaughan, 469-70 opinion of West, 483 [68], 548 [ 1 1 9 ] opinion of Wilks, 560 opinion of Yorke (P.) and Wearg, 548 [»θ] policy of Privy Council, 482-83, 548 [ 119 J reform precluded by regard for, 416 see also Rights of English subjects Common Pleas, Court of Chief Justice adviser to Privy Council, 73, 116 [259] see also Eyre, Robert; King, Peter; Littleton, Edward; Trevor, Thomas; Vaughan, John; Walmesley, Thomas; Willes, John; Wilmot, John Eardley Commonwealth, see Interregnum Company governing bodies appellate jurisdiction of, 42 Complaint, 23, 36, 74-75, 108, 128, 129, 135, 160, 161, 168, 174 [232], 197, 202-6, 447, 550 [ 1 3 1 ] . 551. 552, 554 [ 1 5 3 ] . 555. 556. 611 interrelation with appeal and disallowance, 1 1 2 , 158, 205 petition of, 16, 23-24, 125, 126, 129, 154, 171-72, 182, 183, 227 [67], 448, 545, 582, 647 reference to Board of Trade, 611-12 reference to colonial governor for answer, 204, 280 reference to crown law officers, 594 Comptroller, 30, 65 [ 4 1 7 ] Comyn, Phillips, 200 Comyns, John, counsel, 294, 308, 309 on right of appeal in Isle of Man,

171-

74 Congreve, Charles, 149 [93] Connecticut act for settling intestate estates proposed, 55960 act of 1699 for settling intestate estates (nullified), 537-38, 539 [ 7 2 ] , 541 [ 8 3 ] , 542 [82], 547, 550, 551 [ 1 3 3 , 136], 552, 553. 554. 555, 557. 558 [ 1 8 2 ] , 562 [208], 569 [ 2 5 1 ] , 572, 573, 574 [283], 57677, 613 [466], 633 act of 1702 for holding courts, 546 [ m ]

GENERAL INDEX act of 1705 against Quakers (disallowed), 549 [ « « ] act of 171a for establishing superior courts, &c.. 540, 546 [ « » ] act of 1 7 1 5 for securing general privileges &c., 553 acts for issuing bills of credit nullified by act of Parliament, 529 [24] agent, 601 [399]; s " Ashurst, Sir Henry; Belcher, Jonathan; Dummer, Jeremiah; Ingersoll, Jared; Jackson, Richard; Johnson, William Samuel; Life, Thomas; Palmer, Eliakim; Partridge, Richard; Wilks, Francis appeal from general verdict believed impossible, 355 appeals become matter of course, 161 appeals obtained by petition for royal writ, 400 appeals regulations, absence of, 161, 248 appeals regulations: opinion of N.Y. Council, 403 bills of credit, 500, 552 [146]. 553 [>47J boundary dispute with Mass., 419 [7] boundary disputes with N.Y., 55, 4 ' 9 [7]. 455 [238]. 456 [238] boundary dispute with Pa., 419 [7]· 4 " , 462 boundary dispute with RJ., 419 [ 7 ] charges of Board of Trade against, 150-51 charter, explanatory, urged, 559, 560 Charter of 1662, absence of appeals reservation, 51, 76, 140, 144» 148, [9°]» 1 6 1 Charter of 1662, absence of provision for legislative review, 549, 572 [273]. 652 Charter of 1662, grant of lands in, 423, 440 Charter of 1662, limiting effect on legislation, 465 [3], 548, 549. 500. 553-55. 556, 558. 568, 573. 574 [284] Code of 1650, 538 [66] complaint of Congreve, 149 [93] complaint of Winthrop, 160-61, 545, 550 [ 1 3 1 ] . 551. 552. 554 [153]. 555. 556 courts Assistants, 140 [4]. 142. M9. 374 t 1 0 2 ] Governor and Council, 143 [56, 57], 149, «50 [94. 96], 545 Governor and Magistrates, 423 New London County, 140 [47], 142 [54]. 143 [57] Prerogative, 142 [54] Probate, 537 [^4], 538, 539. 54°. 541. 543. 546, 547. 550, 557. 558, 572, 573. 575 [286] Special County, 540, 546 Special Superior County Court, 544

727

Superior, 160, 374 [102], 540-43, 546, 547. 551. 573 extension of laws of England to, 474, 54748, 550. 559-60. 574 [283] finances Tousey, 574 [285] gavelkind in, 541, 547 ] n 8 ] , 555, 566 [234] General Assembly, 143 [57], 149 [93], 161, 424, 439. 537 [64], 542, 544. 546-47. 549-50. 551, 552, 553, 558, 573, 574 [285], 652 appellate jurisdiction of, 643-44, 649 exempt from royal control, 642-43 on right of appeal, 160, 427 General Court, 52 [333]. 75. 1 4 ° [ 4 7 ] . 423. 424, 425. 538 [66], 550 Governor, 424; see also Fitch, James; Law, Jonathan; Pitkin, William; Saltonstall, Rev. Gurdon; Talcott, Joseph; Trumbull, Jonathan; Winthrop, John Governor and Company, 423, 424, 431 [84], 433. 435. 436, 544. 545 governors' assent not necessary to legislation, 601 governors' instructions, absence of, 601 House of Representatives, 554 [156, 157] intestacy, customary distribution upon, 538, 553. 554. 573 [283], 574 [286] intracolonial appeals, 140-41, 160 intracolonial appeals, practice, 374, 573 laws of, report of Fane, 561 [208] legal status of, 548 [ 1 1 9 ] , 550, 553, 554 Mohegan Indians controversy, 3 1 1 , 322, 327, 377 [125], 418, 419, 422-42, 449, 453, 462 [278] on parliamentary sanction of governors' instructions, 600 [394] petitions for relief after nullification of act of 1699, 556-60 right of appeal denied, 75-76, 142, 147, 148 [86], 149, 150-51, 160 discouraged, 659 opinion of Board of Trade, 141 opinion of Fitch, 161 opinion of Northey and Hawles, 144 opinion of Stanley, 143 [57] royal commission of 1664, 55, 56 see also Chartered colonies; New England Constitution use of word in 18th century, 526 "Contrary to the laws of England," see Legislation, colonial Conway, Sir Edward, royal commissioner in Jersey instructions, 25 [159]

GENERAL INDEX

728 C o n w a y , Viscount referee in Channel [190]

Islands

matters,

30

C o o k e , John, counsel, 1 9 3 C o o k e , Sir John, K i n g ' s Advocate on appeal to delimit vice-admiralty jurisdiction, 5 1 4 on vice-admiralty appellate forum, 1 8 0 - 8 1 Cooke, Pierce, 649 [ 6 2 2 ] Copley, Lionel, Governor of Maryland commission, 7 9 Corbet, Major Moyse, Lieut.-Governor of Jersey. 343 [ 4 4 9 ] Cornbury, L o r d , Governor of New Y o r k , 1 8 3 [283], 199 appointment, 298 charges against C o n n , and R.I., 1 5 1 commission, 90 [ 9 3 ] , 9 1 [ 9 7 ] in Bayard case, 297, 302, 3 0 3 , 305 instructions on licensing ministers, 597, 598 t3"] on Conn.-Mohegan commission of

review,

4*8 Cornell, Gideon, 247 [ 1 6 7 ] Cornwall, 4, 47 [ 3 0 2 ] Corren, John, 1 7 2 Costs, award o f , see Appeal to Privy Council, procedure, costs Cotton, Sir L y n c h Salisbury, 508, 509 Council, see Privy Council Council B o a r d , see Privy Council. Council Board Council for F o r e i g n Plantations, see Council for T r a d e and Plantations Council for Plantations, see Council for T r a d e and Plantations Council for T r a d e and Plantations commission terminated, 66, 70, 7 1 established, 65 jurisdiction of unlawful seizures, 68 jurisdiction transferred to Lords Committee, 66, 70, 7 1 reference of appeals to, 68-70 revived, 66 Council in Parliament, 8 - 1 0 Council of N e w E n g l a n d , see N e w E n g l a n d , Council of Council of T r a d e establishment urged, 1 3 2 - 3 3 Council, Privy, see Privy Council Council Register, see Privy Council, Register Councils, colonial analogy to Privy Council, 472 nominated by Board of T r a d e , 348 opposition to assembly judicial activity, 64546 q u o r u m difficult to obtain, 228

see also Governor and Council; and under names of particular colonies Counsel " C a s e s " required to be signed by, 290 employment of colonial lawyers, 294 fees, 3 2 1 heard by Committee of the Whole, 290, 293, 3 4 1 , 356, 3 6 7 [ 6 6 ] names of, 294 petition of appeal not required to be signed by, 436 [ 1 2 1 ] presence at committee hearing unnecessary, 276, 293 see also under names of particular lawyers County courts of E n g l a n d , 406 County Palatine, 75, 1 6 7 , 1 7 3 , 2 4 5 , 4 1 8 Court leet, 526 Court of Commissioners, see Commission of review Court of Commissioners of 1 6 7 7 attempt to settle Pawtuxet dispute, 1 2 4 - 2 5 Court of Delegates, 62, 92, 1 8 5 , 186, 1 9 0 , 1 9 2 , 194. 4 * 9 Courts, colonial, see Judicial systems, colonial; and under names of particular colonies Courts, English, see Admiralty, Court o f ; Arches, Court o f ; Chancery, Court o f ; C o m m o n Pleas, C o u r t o f ; County courts, English; Court of Delegates; Exchequer C h a m b e r ; Exchequer, Court o f ; House of L o r d s ; King's Bench, Court o f ; London Court of Hustings; Prerogative Court; Privy Council; Star C h a m b e r Courts martial, 43, 73 [ 1 3 ] Courts of Delegates, colonial, 1 9 3 - 9 4 , 195, 1 9 6 C o u t u m e de N o r m a n d i e , 295 Coventry, Sir William, 65 [ 4 1 7 ] Cowel, J. on meaning of word " a p p e a l , " 401 Cowper, Spencer, counsel, 427 [ 5 9 ] Cowse, James, 347 Coxe, John, counsel argument against N . J . chancery appeals, 238 Crachrode, Anthony, Chief Clerk of Barbados Chancery, 230 [ 7 5 ] Cranfield, E d w a r d , Lieut.-Governor of Mew Hampshire, 1 1 5 [ 2 5 3 ] , 1 1 6 , 1 1 9 , 1 2 0 commission, 82, 1 1 6 Cranston, Samuel, Governor of Rhode Island, 152 [ 5 3 ] . 186 [300] Craven, Earl of referee in Channel Islands matters, 65 [ 4 1 8 J Criminal appeals, 109, 1 3 1 , 2 3 2 [ 8 8 ] , 240-44, 3 1 9 , 3 5 1 , 4 0 1 , 404, 409, 6 5 8 - 5 9 hostility to in Georgia, 1 6 8 in Bayard case, 3 0 2 - 4 on chartered colonies, 243-44

GENERAL INDEX in East India, 171 in England allowed only as special grace, 2 1 5 , 243,297 in Guernsey, 33 in misdemeanor cases, 84, 87, h i , 215, 306-8 in seizures under Navigation Acts, 93-95, 255, 308-9, 349 [502], 356-57 instructions to permit, 84, 4 1 2 in treason and felony cases, 241-43 political aspects of, 108 procedure, 107-8 made per solium, 308 new evidence admissible, 297, 308-9, 663 record of proceedings below, 297, 3067 reference to crown law officers, 302 reference to colonial governors, 107-8 writ of error practice not followed, 1 1 1 12, 297, 306 regulation appealable amounts of fines, 84, 225 [59], 240 civil rules applied, 95, 240 territorial limitations, 84, 87, 240 see also under names of particular colonies Criminal trials removal of, 243 [ 1 4 4 ] Cromwell, Oliver, Lord Protector, 40 Cromwell, Richard, Lord Protector, 40 Crosby, Joshua, 272 [ 1 3 2 ] Cross-appeals, see Appeal to Privy Council, procedure: cross-appeals Crowe, Mitford, Governor of Barbados, 205 [396], 223 [ 5 1 ] , 272 [2] complaints against, 347, 348 Crown law officers consulted by Board of Trade, 139, 144, 145, 178, 232 [88] consulted by Committee of the Whole, 369 consulted by Privy Council, 18, 73, 101-2, ' 3 7 . «40 [45]» 163. 594.647 draft N.Y.-N.J. boundary commission, 459 employed as counsel, 294 functions, 3 1 2 [268] review of colonial legislation, 504, 585 [119] shifting personnel, 663 tradition on nullification of colonial acts, 524, 628-29, 631 see also Attorney General; Solicitor General; and names of particular officers Culpeper, Thomas, Governor of Virginia, 83 [69], 209 instructions to, 79 Culpepper, Lord, 38 [249] Cunningham, Waddel, 390, 391, 406, 408

Cushing, John, Justice of Mass. Superior Court, 333-34. 58 [304] Cust, Savile, 233 [90] Custom, legal effect of, 5 6 1 , 565 Customs, Lords Commissioners of, 130 [368], 139. 183 [288], 198 [367, 369], 532, 533 Customs, Lords Commissioners of consulted by Privy Council, 73, 349 Customs, Solicitor of the prosecution of appeals by, 349 [504] Customs, Surveyor General of, see Dunbar, David; Keith, Sir William Cutt, John, President of the New Hampshire Council, 1 1 8 [279] commission, 81, 1 1 5 Da Costa, Fernando, 187 [307] Dale, Dr. Valentine, 12 [68], 23 [ 1 3 3 ] Dalrymple, General Campbell, 497 Damages award of on appeal, 1 1 4 - 1 5 , 320-21 mitigation of, 391 Danby, Earl of, Governor of Guernsey referee in Channel Islands matters, 30 [ 1 8 5 , 186, 190], 3 1 [193, 1 9 5 ] Dand, John, 45 [ 2 9 1 ] Danieli, Thomas, shipmaster, 94 Darnall, Serjeant John, 148 [86] Dartmouth, Lord, Secretary of State, 185, 242 Davenant, Dr. Charles possible originator of Board of Trade, 134 [IS]

Dawson, Rev. Thomas, commissary in Virginia on passage of act for regulating ministers' salaries, 608 [443] Dawson, William, Virginia judge, 371 [90] Dean, John, 73 [ 1 3 ] Deane, Thomas, 57 Declaration of Independence, 652 Declaratory Act, see Acts of Parliament, Statute 6 Geo. Ill, c. 1 2 (1766) De Donis, Statute, see Acts of Parliament, Statute 13 Edw. I, St. 1, c. 1 (1285) De Grey, William, Attorney and Solicitor General employed as counsel, 294, 438 [ 1 3 1 ] , 623 [524] illness delays hearing of Mohegan appeal, 4Ì8 on admittance of appeals per solium, 226 [59] on civil government of Quebec, 494 [ 1 1 5 ] on interpretation of instructions of 1753, 409-10, 4 1 1 , 414 on interpretation of Virginia act on slaves, 505-6 on legislative power in Mass., 633 [563]

GENERAL INDEX De Grey, William (Continued) OD status of Catholics in new accessions, 494 De Gruchy, Philip, 3 2 1 [ 3 1 3 ] . 3*3 [ 3 * 9 ] Delancey, James, Chief Justice of New York, 476 Delancey, James, Lieut.-Governor of New York on settlement of intercolonial boundary disputes, 421 [ 1 6 } Delanccy, Oliver, 461 [270] Delancey group, 458 [249], 461 [270] Delap, Francis, 343 [448], 648 [620] Delaware act of 1 7 2 7 for establishing courts, 251 act of 1760 for regulation of the Supreme Court, 2 5 1 acts not subject to legislative review, 251 appeals regulations colonial act of 1 7 2 7 , 251 colonial act of 1760, 2 5 1 governor, see Gordon, Patrick Supreme Court, 2 5 1 , 653 Dene, William, 9 De Peyster, James, 390 [ 1 8 2 ] Derby, Earl of Proprietor of Isle of Man, 1 7 1 - 7 4 , 227 [67], 269

Dering, Henry, 500 Dering, Thomas, 500 Devonshire, Duke of, Lord President, 545 [ 109] Devonshire, Duke of, Lord Steward, 427 [59] Dickinson, John on value of right of appeal, 209 Disallowance of colonial legislation, see Colonial legislation, disallowance of Divorces, legislative in colonies, 582-85 in England, 583, 584 Dobbs, Arthur, Governor of North Carolina, 190

[315]

Doctors Commons, 429 [70] Dodderidge, John, Solicitor General, 467 [6] Dodington, George Bubb, 324, 375 [ 1 0 9 ] , 377, 575 [288] Doleance, 36, 98, 279-81, 288, 335, 342, 344 [ 4 5 0 ] . 349. 357. 392 [ 1 9 1 ] . 5 ' 5 abuses of in Guernsey, 32 distinguished from appeal by way of doleance, 286-88

expense of, 2 7 1 , 3 2 1 [ 3 1 2 ] , 323 fine of unsuccessful dolcant, 77 merits of appeal not considered, 285-86 nature of, 27-28 procedure, 27-28, 36, 98 procedure affidavits and witnesses used, 280 answer of court below, 284-85, 3 1 7 [286] conformed to appeals procedure, 285

hearing before Committee, 279, 285, 3 1 7 ( 2 8 6 ] , 408, 5 4 5 ,

575

laxity of, 281 nonprosecution, dismissal for, 286 order to admit appeal, 1 0 1 - 3 , 107, [ 3 6 9 ] , 144, 146, 153, 1 8 1

[278],

130 281,

302-3, 357. 408, 409. 410, 545. 571 [ 2 7 4 ] . 574 order to admit appeal omitted, 281 presentation to Council Board, 284 reference to Board of Trade, 280 reference to colonial governor, 280, 545 reference to Committee of the Whole, 280, 2 8 1 [63, 6 6 ] , 284, 574, 575

reference to crown law officers, 302 replication of doleant, 285 report of Committee, 285, 3 1 7 [286], 408, 545, 563, 5 7 2

[ 2 7 4 ] , 574,

575

summons, 285 [88] suspension of proceedings below, 286 prosecution simultaneously with appeal, 286 regulations security, 281, 286, 545, 563, 574 time limitation absent, 281 transmission of record, 279-80 term adopted, 279 [ 5 1 ] used when appealable minimum not met, 248 [ 1 7 6 ] , 2 6 5 , 2 7 1 , 280, 3 5 7 [ 3 0 ] , 660

used when appeal below denied, 98, 280, 662 used when appeal below not taken, 281 used when conditions for appeal not met, 280-81

see also Petition for leave to appeal Dominica acquisition of by Great Britain, 496 appeals regulations, instructions of 1770, 233 [94] criminal appeals regulations, instructions of 1 7 7 0 , 240

[128]

enforcement of Navigation Acts in, 496-99 governor's instructions, 233 [94] intracolonial appeals regulations, instructions of 1 7 7 0 , 2 3 3 [ 9 4 ] see also Leeward Islands Dominion of New England, see New England, Dominion of Dominions of the crown overseas, 4, 10, 42, 6 3 , 7 5 , 88, 1 3 5 , 1 7 3 , 2 0 2 , 2 9 6 , 3 1 7 , 4 1 7 , 466, 467, 468, 469, 475, 5 2 2 [ 2 3 1 ] , 6 5 7

East India settlements not included, 170 Isle of Man an ancient one, 171 see also Prerogative, royal Dongan, Thomas, Governor of New York, 92, 130

[369]

commission, 79, 83, 89 [92] Donnell, Nathaniel, 163, 164 [ 1 9 0 ] Dorchester, Lord

GENERAL INDEX referee in Channel Islands matters, 30 [187, 190], 31 [193] Dorset, D u k e of, L o r d President, 575 [288] Douglass, 552 ] 1 4 6 ] , 5 5 3 [ « 4 7 ] D o w n e s , Richard, Barbados judge, 347 Drayton, William suggested reforms in colonial judicial system, 210-12 D u a n c , James, counsel, 391 D u a n e , James, counsel on value of right of appeal, 210 Dudley, Joseph, C h i e f Justice of N e w E n g l a n d , 121 [290] Dudley, Joseph, Governor of Massachusetts, 141 [48] hostility to C o n n , and R . I . , 146, 151, 424, 426 [52] in C o n n . - M o h e g a n controversy, 424, 425, 426 [51, 52] o n enforcement of j u d g m e n t of royal c o m mission, 426 Dudley, Joseph, Governor of N e w Hampshire, 1 5 4 . 1 5 5 . 1 5 6 . 157 [ 1 5 1 ] commission, 215 Dudley, Joseph, President of Council of N e w England commission, 79 [42], 82, 89 [92] Dulany, Daniel, Attorney General of Maryland on extension of English law to Maryland, 485 prosecution of Carroll, 255 D u m a r e s q , Charles, jurat of Jersey, 282 [71] D u m a r e s q , Elias, jurat of Jersey, 282 [ 7 1 ] D u m a r e s q , J o h n , Greffier o f Jersey, 283 [ 7 1 ] D u m m e r , Jeremiah, Connecticut agent, $45 [ I 0 5 ] . 5 5 i , 5 5 2 . 555. 556, 557 on appeal to delimit admiralty jurisdiction, 515 on disallowance of Mass. act o f 1719, 533 [48] on m e a n i n g of " r e p u g n a n t to laws of E n g l a n d ! " 530-31 on vice-admiralty appeals regulations, 186, 266, 267 on Mass.-N.H. boundary dispute, 443 [154] Dunbar, David, Surveyor General of the Customs inquiry on effect of treaty, 531 [33] complaint against Massachusetts, 332 proposed Act for the Preservation of the Woods in America, 188 Duncanson, Robert, 490 D u n n i n g , J o h n , Solicitor General employed as counsel, 194, 438 Dupplin, Lord

[131]

on bill for enforcing governors' instructions, 602 [401]

731

D u r a n d , Peter, 282 [ 7 1 ] Durell, J o h n , deputy bailiff of Jersey, 282 [71] D u r h a m , Bishop of Palatine powers, 167 D u r h a m , C o u n t y Palatine of course of appeals, 167 Dutch in Connecticut, 439 [133] D u t t o n , Sir Richard, Governor of Barbados, 81, 101 [164], 103 [176], 107 [205], 108 [206, 209] 112 [231], 471 commission a n d instructions, 473 [20] East Florida appeals regulations Georgia rules prescribed, 235 instructions, 233 [94] criminal appeals regulations, 240 [128] governor's instructions, 233 [94], 235, 240 intracolonial appeals regulations, 233 [94] East India appellate jurisdiction over, 4 coffee house in L o n d o n , 277 [32] increased volume of appeals, 664 East India C o m p a n y , 95, 280 [55] appeals regulations, charter provisions, 17071, 269 charters appeals reservation in, 95, 170-71 g r a n t of judicial power in, 170 complaint of Peres de T a v o r a , 95 courts, 170-71 criminal appeals regulations, charter provision, 171 Governor General and Council, 171 intracolonial appeals, 170-71 East Indian law, 295 East Jersey, see N e w Jersey E d e n , Robert, Governor of Maryland, 178 [260} Elizabeth, Queen of E n g l a n d , 12, 13, 14, 24, 2 5 . 3 7 , 3 1 5 [281], 474 [22] Elizabeth purchase, see N e w Jersey, Elizabeth purchase Ellesmere, L o r d , L o r d Chancellor on effect of Statute 19 H e n . V I I , c. 7 (1504), 570 [257] Elton, A n n , 52 [334] E m o t t , James, counsel, 198 [370] English law, see Acts o f Parliament; C o m m o n law Entails, in N e w Y o r k , 511 in Pennsylvania, 512 in Virginia, 511-12 Evidence admission on appeal

732

GENERAL INDEX

Evidence, admission on appeal (Continued) by Council, 3 ; , 38, 98, 100, i n , 1 1 3 [ 2 3 3 . 234. 2 3 5 ] , 144, 1 9 4 , 1 9 5 . 309. 3 1 2 , 663 in N . England, 3 : 0 - 1 1 , 373-74. 3 7 5 urged in Quebec, 4 1 6 opinion of Committee, 3 7 5 affidavits admissible by statute, 382 certification with record, opinion of Mansfield, 370 inadmissible on appeal unless in record, 3 1 0 , 3 1 1 - 1 2 , 377, 431 [ 8 5 ] , 575 [ 2 8 7 ] included in record in chancery appeals, 378-79 in intercolonial boundary disputes, 3 1 1 - 1 2 in Jamaica, 3 5 3 , 362 in N e w England, n o , 3 1 0 , 3 5 3 , 355, 359, 365-66, 370, 373-74. 5 1 3 reduction to writing avoided to defeat appeal, 1 6 3 , 376, 575 [287] in Jersey, 1 6 3 [ 1 8 7 ] in N . England, 3 5 3 , 3 5 5 , 365-66, 370, 373-74, 399 necessary for Coldenite appeal, 396, 398 Exchange, Royal, 1 0 7 , 274 [ 7 ] , 277, 284, 436 Exchequer, Court of Chief Baron, 39 [ 2 5 2 ] ; see also Heron, Edward; Maseres, Francis; Parker, Thomas; Tanfield, Laurence Exchequer Chamber, 326, 467 writ of error practice, 386 [ 1 6 7 ] Exton, Sir Thomas, Judge of Court of Admiralty on right of vice-admiralty appeal, 90 Eyre, Francis, counsel on appellate jurisdiction of colonial courts, 643-44 Eyre, Robert, Chief Justice of Common Pleas, 3 2 3 , 464 [ 1 ] , 546 [ 1 0 9 ] Fabre, Captain, 201 Fairfax, Lord, 455 [ 2 3 3 ] Falmouth, Lord, 324 Fane, Francis, counsel to Board of Trade, 251 [ 2 0 2 ] , 599 [ 3 9 1 ] on laws of Conn., 561 [208] on royal prerogative in colonies, 558 Farnum, Elizabeth, 522 [ 3 0 3 ] Farnum, John, 582 Fauquier, Francis, Lieut.-Governor of Virginia in Parsons' Cause, 6 1 0 - 1 1 , 6 1 5 , 6 1 6 - 1 7 , 619, 620, 621 [ 5 1 5 ] on appoinunent of colonial councilors, 348 [495I on legal effect of instructions, 6 1 9 on legal effect of Order in Council, 6 1 7

Fazakerly, Nicholas, counsel on colonial bills of credit, 604 [ 4 0 5 ] Fees, failure to use to defeat right of appeal, 176 Felony cases, conciliar intervention in, 2 4 1 - 4 3 Fenwick, Major John, 126-27 Fernando, Francis, 194 Feudal sovereignty, 42, 1 7 2 , 2 1 1 - 1 2 Finch, Heneage, Solicitor General, 67 Findlater, Earl of, 546 [ 1 0 9 ] Fine remissions, see criminal appeals Fiott, Nicholas, 321 [ 3 1 3 ] . 3 * 3 [ 3 2 9 ] · 344 (449] Fitch, James, Governor of Connecticut on right of appeal, 1 6 1 Fitzwalter, 324 Fletcher, Benjamin, Governor of New Y o r k , 1 3 8 , 140 [46]. 159 commission, 79, 83 declines original jurisdiction, 638 [578] Fletcher, Benjamin, Governor of Pennsylvania Commission, 83 Fletcher, William, 333-34, 374-75 Floridas, see East Florida; West Florida Forbes, Alexander, 5 1 8 [ 2 1 3 ] Ford, Peter, 199 Forrester, Alexander, counsel, 294, 322 [ 3 2 1 ] , 337 [ 4 1 5 ] . 456 [ 2 3 8 ] , 643 influence with Committee of the Whole, 327 on committal of Smith and Moore, 647 [617] on extension of English law to colonies, 498 on interpretation of Va. act, 505-6 on scope of vice-admiralty jurisdiction, 5 1 7 Forsey, Thomas, 390 Fosdick, Samuel, 140 [ 4 7 ] , 149 [ 9 3 ] Fowle, Thomas, 45 [ 2 9 1 ] Fowles, Thomas, 5 1 5 - 1 6 France, war with, 1 3 2 Franklin, Benjamin, 626 [ 5 3 6 ] on privilege of Pa. assembly, 648 [ 6 1 9 ] on procrastination of crown law officers, 648 [620] Frauds, Act for Preventing, see Acts of Parliament, Statute 7 it 8 Wm. Ill, c. 22 ( 1 6 9 6 ) Frauds, Statute of, see Acts of Parliament, Statute 29 Car. II, c. 3 ( 1 6 7 7 ) Fraudulent Conveyances, Statute against, see Acts of Parliament, Statute 27 Eliz. c. 4 (1585) Freebody, John, 337-41 Freebody, Samuel, 338-41 Freebody, Thomas, 3 3 8 - 4 1 , 649-50 Freeman, William, 203 French, Phillip, 298, 299 [ 1 7 8 ] Frost, John, 329, 330, 3 3 1 Fullerton, James, 366 [66]

GENERAL INDEX Gage, General Thomas on hostility to Colden, 394 [201] Galdy, Laurens, 470 Gambia, see Senegal and Gambia Gardiner, Sir Christopher, 43 Garrett, Amos, 484 [70] Garth, Charles, South Carolina agent, 387 Gascony, 8 Gavelkind tenure in Connecticut, 541, 547 [ : i 8 ] , 555, 566 [234] in England, 565 in Massachusetts Bay, 565 in New Plymouth, 567 [239] George I, King of England, 136, 319, 323 George II, King of England, 136, 323, 370 George III, King of England, 136, 324, 493 George of Denmark, Prince, 91 [97] Georgia act of 1759 for confirming tides (disallowed), 640 appeals regulations instructions of 1754, 233 [94] to be followed in Floridas, 235 becomes royal colony, 190 Bosom worth claims, 344 [453] charter, absence of appeals reservation in, : 68 court of admiralty proposed, 190 criminal appeals not wanted, 168 criminal appeals regulations, 240 [128] governor, see Wright, Sir James governor's instructions, 233 [94], 240 [128] intracolonial appeals regulations, 233 [94] proprietor, tee Oglethorpe, James vice-admiralty appeals, 190 Gibbons, John, 279 [49] Gibraltar, 4, 136 [ 3 1 ] , 138, 171, 174, 268 Gilligan, Manasses, 223 [ 5 1 ] Gillihand, William, 390 [182] Glen, James, Governor of South Carolina, 386 [165] commission, 577 [298] Goddard, Capt. John, Governor of Bermuda, 104 [ 1 7 7 ] . [209], 1 1 2 [ 2 3 1 ] , 129 [361] Godolphin, Lord, 65 [422] Gooch, William, Governor of Virginia, 188, 223 Goodricke, Sir Henry, 367 [66] Gookin, Charles, Lieut.-Governor of Pennsylvania, 243 [146] Gordon, Patrick, Lieut.-Governor of Pennsylvania and Governor of Delaware, 251 Gordon, Thomas, New Jersey agent, 366 [66] Gordon, William, 229 [75], 362 [ 5 1 ] Gorges, Sir Ferdinando, 44, 50-51, 59, 116 [259]

733

grants to, 49, 329 [360] Gorton, Samuel, 56 [ 3 6 ; ] Gosselin, Josuah, 528 [22] Governors, colonial assent necessary to legislation, 601 attempts to defeat right of appeal, 176-77 chancery jurisdiction of, 88, 236, 659 functions, 176 ordinary jurisdiction of, 176, 220, 240, 271, 662 reference of complaints to, 204, 280 reference of criminal appeals to, 107-8 reference of doleances to, 280, 545 see also Governor and Council; Governors' commissions; Governors' instructions; and under names of particular colonies Governor and Council jurisdiction appellate, 109 [218], 160, 210, 214, 215, 219, 229 [73], 232, 261, 270-71, 348, 385, 400, 404, 475, 638, 639 chancery, 88, 236-40, 261 original, 88, 96, 236-40, 261, 638 [578] see also Councils, colonial; Governors, colonial; and under names of particular colonies Governors' commissions, 656 analysis neglected, 473 appeals regulation by, 53, 78-79, 81-83, 84, 152 [ 1 1 3 ] , 173, 215 appellate jurisdiction based on, 78, 173 drafted by Board of Trade, 348 extension of acts of Parliament to colonies by, 466 instructions incorporated by reference, 621 judicial systems based on, 235 legal effect of, 526 limiting effect upon colonial land grants, 607 [434] limiting effect upon colonial legislation, 466, 469. 524. 525. 526, 577 [298] scope of, 78 vice-admiralty jurisdiction based on, 177-78, 182 [283], 184-85 see also under names of particular colonies Governors' instructions, 656 appeals regulations by, 53, 78-79, 80-81, 8384, 1 1 5 [ 1 1 3 ] , 214, 215-16, 218-19, 22122, 228-32, 232-43, 250, 252, 253, 267-68, 662 reforms urged by Sharpe, 232 [88] applicability to chancery appeals, 271, 662 applicability to vice-admiralty appeals, 265, 662 applicability to ordinary appeals, 271, 662 circular instructions of 1726/7, 230, 250, 255, 258, 265

GENERAL INDEX

734

incorporated in commissions by reference, 621 interpretation of, 88, 236-40 legal effect of argument of Smith (W.), 220-21 in chartered colonies, 604 opinion in colonies, 625-26 [ 5 3 5 ] opinion of Granville, 626 [ 5 3 6 ] opinion of Long, 628 [ 5 4 1 ] opinion of Northey, 225 when requested by Parliament, 604, 605

on legislation without parliamentary sanction, 605 parliamentary sanction proposed, 599, 600, 601, 602-3, 605 private nature of, 2 1 5 - 1 6 , 597 revision of, 216-34, 270-71, 662 scope of, 78 territorial applicability of, 232, 244, 2 5 1 , 601 see also under names of particular colonies Gower, Lord on grant of new trials by R.I. assembly, 651 Graham, James, Attorney General of New York, 159-60 [ 1 6 9 ] Grandison, Viscount referee in Channel Islands matters, 30 [ 1 9 0 ] Grantham, Lord, 326 [338] Granville, Earl of, Lord President, 437 [ 1 2 3 ] , 458 [249] influence of Forrester upon, 327 on legal effect of governors" instructions, 626 [536] Green, John, 356 [20] Grenada acquisition of by Great Britain, 493 act for determining compliance with appealable amounts, 224 [52] act of 1772 for regulating appeals, 252 appeals regulations Barbados and Leeward Islands rules prescribed, 235 colonial act, 252 criminal appeals regulations, 240 [ 1 2 8 ] extension of English laws to, 493-95 governor's instructions, 235, 240 [ 1 2 8 ] status of Roman Catholics in, 493-95 Grenadines, 494

[409] limiting effect on colonial land grants, 607

Grenville, Sir Bevil, Governor of Barbados, 306, 346

[434] limiting effect on colonial legislation, 2 5 1 , 526, 597, 604-7, 612, 626-27, 663 argument of Camm, 618-19, 621 argument of Hansford & Moss, 617-18, 623 argument of Sharpe, 606 [ 4 3 1 ] argument of Wedderburn, 6 1 3 early precedents, 597-98 in chartered colonies, 600, 601 opinion of Bland, 616 opinion of Carter, 615-16 opinion of Council, 625 opinion of Fauquier, 619 opinion of Michie, 605 opinion of Northey, 251-52 opinion of Rawlin, 598 opinion of Smith, 616 [480], 624 [ 5 2 7 ] opinion of Va. General Court, 619 opinion of Walpole, 624

47 Gridley, counsel, 334 Grindlay, counsel, 588 Grubb, Curtis, 585 [ 3 1 9 ] Guadeloupe, 497, 499 Guernsey, 1 7 1 appeals at Restoration, 63-64 appeals by way of doleance, 286-88 in claims of haro, 270 proportion of reversals, 660 record transmitted complained of, 291 under Elizabeth, 13 appeals regulations insular ordinances, 32, 270, 287 Order in Council of 1580, 1 3 - 1 4 , 15 [83], 77, 270, 291 Order in Council of 1605, 25, 32, 77

Governors' instructions (Continued) circular instructions of 1740, 599, 604, 605 [409] circular instructions of 1 7 5 3 , 2 3 1 - 3 3 , 383-85 interpretation of, 383, 385, 386-412, 414, 4 1 5 - 1 6 , 663 invalid in Bermuda, 233 circular instructions of 1 7 7 3 , 586 [ 3 1 9 ] criminal appeals regulations by, 308 directing disallowance of colonial legislation, 528, 599, 600, 601, 605, 606, 607, 609 directing suspension of execution pending appeal, 228-32 directing transmission of judicial proceedings, 345-46 drafted by Board of Trade, 348 enactment of by colonial ordinance, 236 evasion of, 605-7 extension of common law to colonies by, 468 extension of habeas corpus by, 475 [29] forbidding appeals to colonial assemblies, 80, 83. 2 1 5 [ 3 ] , 638, 644 for new accessions of 1763, 235-36, 499

[m]

Grey, Lord, Governor of Barbados, 183, 346-

GENERAL INDEX Order in Council of 1627, 32, 77, 287 bailiff, see Channel Islands, bailiffs Courts Court of Judgments, 227 [60] Royal Court, 6, 11, 13-14, 33 [ 2 1 1 ] , 40 [262], 207, 285 [87, 88], 286 [93], 287, 28S [103], 290 [ 1 2 3 ] , 291, 528 [22]; see also Channel Islands, courts criminal appeals, 32, 33, 270 Governor, see Bingham, Col. John; Danby, Earl of; Hatton, Lord; Leighton, Sir Thomas precedent for writ of inhibition, 392 [ 1 9 1 ] provost, 283 see also Channel Islands Guignand, Henry, 496 Guignand, Joseph, 496 Gulston, Ralph, 166 [197], 329 Habeas corpus, writ of, 475 [29] Habeas Corpus Act, see Acts of Parliament, Statute 31 Car. II, c. 2 (1680) Haldimand, Sir Frederick, Governor of Quebec instructions, 416 Hale, Sir Matthew on English county courts, 406 on meaning of word "appeal," 401, 403 Halifax, Lord, 168 Halifax (Nova Scotia) vice-admiralty court, 191 Hall, John, 429 Hall, Nathaniel, 262 [272] Hallam, John, 140, 142 [54], 143 [56, 57] Hallam, Nicholas, 140, 142, 143, 146 [79], 147 [84], 424, 425 Hamilton, Andrew, 629, 630, 631 Hamilton, Lord Archibald, Governor of Jamaica, 194*95. 2 36-37. 347 Hamilton, James, Lieut.-Governor of Pennsylvania, 604 Hamilton, William, 490 Hancock, John, 165 [194] Handasyd, Thomas, Governor of Jamaica, 346, 360 Hanover, House of, 583 Hansford, Charles, 618 Harcourt, Simon, Solicitor General on disallowance of S.C. acts, 534-35. 536 on petition of Bayard, 302 Hardwicke, Earl of, Lord Chancellor, 493 [106], 613 [465], 624 [529] attendance at Committee of the Whole Council, 323, 564 [223] on enforcement of Orders in Council within the realm, 3 1 7 on change of opinion, 569 [251 J, 572

735

on effect of decree in Richardson v. Hamilton, 631 on jurisdiction of Court of Chancery, 489 on jurisdiction of probate court, 564 [227] on legal effect of Va. act of 1758, 614, 621 [515] on rule in Shelley's Case, 3 2 ; [338] on settlement of intercolonial boundary disputes, 420 see also Yorke, Philip Hardy, Sir Charles, Governor of New York, 458 Harris, Barrow, 479, 480 [49] Harris, Edward, 479, 480 Harris, William, proprietor of Pawtuxet, 12226 Harrison, Francis, New York vice-admiralty judge, 265 Harrison, George, notary public, 391 Harrud, John, proprietor of Warwick, 123, 126 [340] Hart, John, Governor of Leeward Islands, 362 Hartwell, Blair, and Chilton on extension of English law to Virginia, 474 [«] Hatton, Lord, Governor of Guernsey, 64 [414], 65 [418] Hawles, John, Solicitor General on enforcement of Orders in Council in Leeward Is., 341 on right of appeal from Conn., 144 Hayes, Jonathan, 243 [146] Hedges, Sir Charles, King's Advocate on vice-admiralty appellate forum, 91-92 Hedges, Sir Charles, Judge of High Court of Admiralty, 182 [283], 198 [370] on vice-admiralty appellate forum, 178, 17980, 185 Hedges, Sir Charles, Secretary of State, 323 Helme, Rouse, Judge of R.I. Superior Court, 340, 561 Hcnchman, Dr. Humphrey on royal prerogative of allowing appeals, 429 [70] Henley, Robert, Attorney General employed as counsel, 294, 456 [238] Henry IV, King of England, 172 Henry VI, King of England, 525 Henry VIII, King of England, 4, 12 Henry of Stanton, 9 Henry, Patrick on Virginia act of 1758, 620-21 Herbert, Joanna Victoria Adelaide, 493 Heron, Edward, Baron of the Exchequer, 467 Heywood, Peter, Jamaican master in chancery, 193

736

GENERAL INDEX

Hillsborough, Earl of, Secretary of Sute, 242 [140], 652 Hobart, Henry, Attorney General, 467 [6] Hodges, T h o m a s reforms proposed in Barbados appeals regulations, 216-17 Hodgson, Daniel, 199, 200 Hodson, John, 52 [ 3 3 4 ] Holden, Samuel, 327 Holies, Lord, 63 [ 4 1 2 ] , 65 [ 4 1 7 ] Hollings, R., counsel, 448 Hollis, Sir John, counsel, 427 [59] Holmes, John, 649-50 Holt, John, 390 [ 1 8 2 ] Holt, John, Chief Justice of King's Bench, 140 [ 4 5 ] . 349 [502] attendance of Committee of the Whole, 323, 314 [ 3 3 4 ] . 367 [ 6 6 ] , 427 [59] concerning judicial review of acts of Parliament, 527 on confirmation of corporate by-laws, 570 [260] on extension of English law to Jamaica, 471, 499 on royal prerogative in dominions overseas, 470 Holt, Thomas, 639 [580] Honduras logwood trade, 130 Hope, John, Lieut.-Governor of Bermuda, 18788, 258 Hopkins, Stephen, 339 Hopkins, Stephen, Governor of Rhode Island, 531 [32] Hopson, Lord, 38 [244] Horsmanden, Daniel, Chief Justice of New York, 519 [ 2 1 9 ] in Conn.-Mohegan controversy, 431 [86], 432, 434, 435-36 in Cunningham v. Forsey controversy, 392, 394-96, 407, 411 on interpretation of governors' instructions of 1753, 394-96 House of Commons, 203 [386, 387], 297, 647 [617] analogy of colonial assemblies to, 638-39, 646, 647 [619] bills for controlling colonial bills of credit, 599-603 bill for regulating nonroyal colonics, 151 debates on council of trade, 132-34 intervention threatened, 632 [ 5 6 1 ] investigation of nonroyal colonies, 147 Speaker, 438 [ 1 3 2 ] , 442, 564 [223) House of Lords, 184, 326, 459, 534, 549 [121 ], 632 analogy to Privy Council, 655

appellate jurisdiction, 10, 1 1 , 209, 2 1 0 - 1 1 , 220, 386 [167], 471-72, 655, 661-62 appellate jurisdiction in equity, 1 1 3 , 238-39 appellate practice, 290, 310, 3 1 3 [270], 319 [293], 436 [ 1 2 1 ] bill for reuniting nonroyal colonies to crown, 147-48 debates on nullification of Mass. act of 1766, 625, 631-32, 634, 644 on reform of legislative review of colonial acts, 561 [208] seeks precedents of nullification of colonial acts, 633 Houston, Anthony, 629, 631 Houston, William, 629 Howard, Lord, Governor of Virginia, 80 [ 5 1 ] , 83 [ 5 5 l . 100 [187] Howard, Sheffield, 390 [ 1 8 2 ] Hughs, Edward, 129 [362] Hume-Campbell, Alexander, counsel, 294 Hunter, Robert, Governor of Jamaica, 240-41 Hunter, Robert, Governor of N e w Jersey, 323 [330], 347 instructions, 598 [ 3 8 1 ] Hunter, Robert, Governor of N e w York commission, 90 [93], 91 [97] enforcement of Navigation Acts, 185 [296] instruction on appeals affecting Church, 22122 Hutchins, John, 137 [ 3 7 ] , 241, 298, 300, 301, 304, 305 Hutchinson, Archibald, 203 [386, 387] Hutchinson, Thomas, Chief Justice of Massachusetts, 165 on effect of acts of Parliament in R.I., 341 [429] on extension of English law to colonies, 52021 on scope of review in appeals, 414 Hutchinson, Thomas, Governor of Massachusetts, 334 orders inquiry into Tea Riots, 638 [578] Hutchinson, Thomas, special justice, 333-34 Hyatt, Cornelius, 390 [ 1 8 2 ] Hyde, Edward, Governor of North Carolina, 196 Hyde, Laurence, 467 [6] Indian tribes legal status of, 417 see also Mohegan Indians Indies at time of Calvin's Case, 467 see also East Indies; West Indies Ingersoll, Jared, Connecticut agent, 436 [ 1 2 3 ] on certification of evidence with record, 370 on evaluation of colonial bills of credit, 502

GENERAL INDEX on meaning of "current lawful money," 501 vice-admiralty judge, 161 [178], 192, 296 [159] Instructions, governors', see Governors' instructions Insular commissions, see Channel Islands, courts Interregnum appellate jurisdiction over Channel Islands during, 38-41 Intracolonial appeals, 87-88, 218-19 Intracolonial appeals expense of, 396, 399, 404, 40; see also Vice admiralty appeals, intracolonial; and under names of particular colonies Ireland, 4, 8, 47 [302], 64, 88, 91 [ 9 ; ] , 2 1 1 12, 468, 469, 473, 491, 492 Court of Chancery, 295 [ 1 3 2 ] Poynings' Law, 469 [ 1 0 ] Isaacs, Abraham, 310 [259), 3 1 1 Isaacs, Ralph, 161 [178] Islay, Lord, 323 Jacklin, Samuel, 193 Jackson, Benjamin, 247 [ 1 6 7 ] Jackson, Richard, Connecticut agent, 312, 437 [128], 438 [ 1 3 · ] on difficulty of getting quorum of Committee, 324 [333] on legal status of Indian tribes, 435 [109] on trial by jury, 377 on settlement of boundary disputes, 462 [277] Jackson, Richard, counsel to Board of Trade, 176 [248], 294, 585 [ 1 1 9 ] on effcct of failure to disallow colonial acts, 636 on legislative interference with litigation in N.J., 641 [589] on legislative review of Pa. acts, 636 on N.H. money proclamation, 637 on nullification upon judicial review, 653 preference for judicial review, 636 Jackson, Richard, Quebec judge, 416 Jacobs, Isaac, 196 [359] Jamaica act of 1675 for limiting admiralty jurisdiction, 127 act of 1681 for reception of English laws (disallowed), 477-78 act of 1695 for recovery of quit-rents, 50811 act of 1696 for government of slaves, 241 act of 1703 for recovery of quit-rents, 508-11 act of 1719 for regulating ports of entry (disallowed), 533 act of 1722/3 for adoption of English laws (disallowed), 479, 487

737

act of 1728 for adoption of English law, 482 act of 1728 for granting duties, 606 [430] act of 1733 for recovery of quit-rents, 508-11 act of 1739 for dissolving marriage (disallowed), 583-84, 606 act of 1756 for reversing sentence (disallowed), 606 [430], 639 act of 1758 (disallowed), 597 [370] act of 1759 for prohibiting importation of sugar ite. (nullified), 592, 633 act of 1761 (disallowed), 597 act of 1761 for imposing duty on imported slaves, 626, 627, 628 act of 1763 for imposing duty on imported slaves, 628 [540] act of 1773 reversing fine (allowed), 639 act of 1776 to avoid unnecessary delays of execution, 245 acts disallowed for omission of suspending clause, 605, 606 acts disallowed for violation of governors' instructions, 606 admiralty appeals denied, 62 admiralty jurisdiction, 88 appeal from general verdict believed impossible, 357 appeals: record transmitted complained of, 292 [132, 1 3 3 ] appeals regulations acts of Parliament applied, 244-45, 264 colonial act of 1776, 245 instructions of 1681, 80, 82 instructions of 1685, 81, 236-37 instructions of 1718, 229 [74] instructions of 1753, 233 [89] judicial rules not applicable, 264 Orders in Council, 230-31 reform proposed by Long, 228 [ 7 1 ] to be followed in Bahamas, 232 [87] appeals to Lords Committee, 73 Assembly, 628 [540] judicial activity of, 639, 649 [622], 645-46 on extension of English law, 478 on legal effect of governors' instructions, 626 [535] Attorney General, 360, 508 Chancellor, 193, 231, 264, 342-43, 649 [622] chancery appeals, 88, 176, 207, 225 [58], 231, 236-37, 264-65, 274 [ 1 1 ] , 282 [68], 292 [ ' 3 3 ] . 310. 342-43. 378-79. 383. 659. 660 regulations, 264-65 coffee house in London, 277 [32] Council difficulty of getting quorum, 228 [ 7 1 ] , 476

73^

GENERAL INDEX

Jamaica, Council (Continued) on extension of English law to Jamaica, 478 on exercise of judicial power by Assembly, 645 slave factors in, 228 [ 7 1 ] , 348, 476 courts Admiralty Court, 62 conciliar control of, 658-59 conflict with admiralty courts, 127-28 Chancery, 176-77, 193, 207, 2 3 1 , 262, 264, 292 [ 1 3 3 ] , 342-43. 379. 380, 649 [622] Court of Appeals, 264 Court of Delegates, 193-94, 195 Court of Errors, 228 [ 7 1 ] , 245, 262-64, 265, 292 [ 1 3 2 ] , 3 1 7 , 3 1 9 [294], 325, 356, 3 8 1 , 476-77. 479-80, 482, 5 1 0 - 1 1 , 628 Governor and Council, 78, 80, 93-94, 195, 228 [ 7 1 ] , 240-41, 381 [ 1 4 5 ] , 627, 628 [540], 638 [578] Grand Court, 638 [578], 639 [580] Ordinary, 2 3 1 - 3 2 , 482 special court of oyer and terminer, 94-95 Supreme Court of Judicature, 228 [ 7 1 ] , 240, 245, 262, 263, 292 [ 1 3 2 ] , 343 [448], 356-57, 3 8 1 , 476, 479, 508, 627, 628, 639, 645 Vice-Admiralty, 102 [ 1 6 6 ] , 103, 1 2 7 , 130 [368], 182 [283], 187 [307]. 193. 194-95. 638 [578] criminal appeals regulations, 84 [ 7 3 ] , 240 [ 1 2 8 ] , 241 enforcement of Orders in Council in, 342-43 extension of English law to, 470-71, 476-80, 483 [68], 661 Governor, 343; see also, Beeston, Sir William; Carlisle, Charles, Earl of; Hamilton, Lord Archibald; Handasyd, Thomas; Hunter, Robert; Lawes, Sir Nicholas; Lynch, Sir Thomas; Lyttleton, Sir Charles; Modyford, Sir Thomas; Moore, Sir Henry; Morgan, Sir Henry; Portland, Duke of; Vaughan, John, Lord; Watson, Sir Francis governor's instructions, 78, 80, 81, 82, 84 [ 7 3 ] . 2 1 9 [23. 24], 228 [ 7 1 ] , 232 [87], 2 3 3 [89]. 236-37, 240 [ 1 2 8 ] , 241, 26265, 606, 626 [ 5 3 5 ] , 627, 628 [540, 5 4 1 ] governors' instructions of 1726/7 disregarded, 230 intracolonial appeals regulations acts of Parliament applied, 245, 262 instructions, 78, 2 1 9 [23, 2 4 ] , 233 [89], 263 judicial rules, 262-64 intracolonial vice-admiralty appeals, 92, 19395

judicial practice record supplemented by all evidence, 353, 362, 659 special verdicts, 360 legislative divorce in, 583-84 Master in Chancery, 378-79, 383 precedential effect of Orders in Council in, 480, 482 precedent sent to S.C., 387, 390 probate appeals, 659 Provost Marshal, see Blankard, John right of appeal defeated, 292 right of appeal denied, 62 rule in Shelley's Case in, 325, 482 South Sea Company seeks special status, 222 vice-admiralty appeals, 92 James, Duke of York, 53, 88, 127, 366 [66], 454 James I, King of England, 25, 467, 476 James II, King of England, 7 1 , 89, 409 Jeake, Samuel, 508-11 Jefferson, Thomas, 620 on colonial use of precedents, 465 [ 2 ] Jeffreys, George, Chief Justice of King's Bench, 351 on royal prerogative in dominions overseas, 470 Jeffreys, George, Lord Chancellor, 128 Jekyll, Sir Joseph, Master of the Rolls, 546 [109] on conciliar policy on extension of English law, 482-83 Jenckes, Daniel, 339 Jenckes, Joseph, Governor of Rhode Island, 561 Jenkins, Sir Leoline, 128 Jenkins, William, 384 Jeofails, statute of, 384 Jerdone, Francis, 490 Jermaine, Lord Thomas, 282 [ 7 1 ] Jermyn, Lord, Governor of Jersey, 30 [ 1 8 6 ] Jersey, 1 7 1 appeals at Restoration, 63 by way of doleance, 288 during interregnum, 38-39 in claims of haro, 270 [ 3 2 1 ] proportion of reversals, 660 record transmitted complained of, 290-91 under Elizabeth, 1 3 appeals regulations Code of 1 7 7 1 , 270, 291 Order in Council of 1572, 1 3 , 14 [80], 1 5 [83]. 77, 270, 290 Order in Council of 1635, 37, 77 Orders in Council of 1668 & 1 6 7 1 , 77, 97 [133] Pine and Napper ordinances, 14, 77, 270

GENERAL INDEX bailiff, 282 [ 7 1 ] , 285 [83]; tee alto Channel Islands, bailiff Code of 1 7 7 1 , 270, 291, 595 complaint of Carteret, 30 [90, 9 1 ] Courts, Royal Court, 6, 1 1 , 13, 33 [ 2 1 1 ] , 38, 163 [ 1 8 7 ] , 206 [408], 207, 270 [ 3 2 1 ] , 290-91, 293, 309, 3 1 7 [286], 322 [320], 344 [449], $93-94; tee alto Channel Islands, courts criminal appeals, 270 enforcement of Navigation Acts in, 593 Governor, tee Cobham, Lord; Corbet, Major Moyse; Jermyn, Lord; Paulet, Sir Hugh; St. Albans, Earl of jurats, 282 [ 7 1 ] , 285 [83], tee alto Channel Islands, jurats legislative activity in, 593 [ 3 5 3 ] petitions to Henry VIII, 12 Pine and Napper Ordinances, 14, 17 [ 9 1 ] , 270 practice, reduction of evidence to writing, 163 [ 1 8 7 ] precedent for writ of inhibition, 392 ( 1 9 1 ] precedential effect of Orders in Council in, 481 states, legislative powers of, 593-95 viscount, 283 tee alto Channel Islands Jersey, Earl of, 145, 146, 183 [288] Jessop, William, Council Clerk, 39 [252] John, King of England, 6, 7 [20], 8 John of Berwick, 9 Johnson, John, Lieut.-Governor of Nevis, 184 [292] Johnson, Elizabeth Bray, 505 Johnson, Philip, 505 Johnson, William Samuel, counsel, Connecticut agent, 210, 289 [ 1 1 8 ] , 322 [ 3 1 8 ] , 327, 436, 643 did not argue before Council, 294 [ 149] in Mohegan controversy, 426 [ 5 1 ] , 428 [67], 438 [ 1 3 1 , 1 3 3 ] , 439 [ 1 3 4 ) , 440 [ 1 3 5 ] . 441 [139. M ° ] on Colden, 440 [ 1 3 5 ] on difficulty of getting quorum of Committee, 324 [332] on geographical ignorance of English lawyers, 473 [ 1 9 ] on legal status of Mohegans, 434 [109] on review of colonial legislation, 652 Johnston, Lewis, 519 [ 2 1 9 ] Johnstone, George, Governor of West Florida, 4'5 Jones, referee in Guernsey appeal, 40 [260] Jones, Benjamin, 390 [182] Jones, David, Justice of New York Supreme Court, 413

739

Jones, Gabriel, Attorney General of Virginia on extension of Statute of Frauds to Virginia. 474 [22] Jones, H. on extension of English law to Va., 474 [22] Jones, Jeffry, 366 [66] Jones, Dr. John, 390 [ 1 8 2 ] Jones, Dr. Thomas, 390 [182] Jones, William, Attorney General on vice-admiralty jurisdiction, 127-28 Judges of England in Calvin't Cate, 467 in proposed Board of Council, 295 [ 1 5 4 ] relationship to Council, 12, 18, ι ο ί , 109 [ 2 1 9 ] , 349 review of corporate by-laws, 525 Judicial independence established in England, 637-38 in colonics, policy of crown, 638 Judicial review, tee legislation, colonial, judicial review of Judicial rules, appeals regulation by, 214, 26265 Judicial systems, colonial based on governors' commissions, 2 3 ; control of, by Board of Trade, 346-48, 660 control of, by Privy Council, 41-45, 660, 663 control of, policy of crown, 638 early, private nature of, 41 practice imperfections of, 3 5 1 , 379, 380, 659 reforms suggested by Drayton, 2 1 0 - 1 2 tee alto under namet of particular colonie! Jurisdictions local and private, appeals from, '73 Jury employed in N. England appellate courts, n o [224], 157, 373, 374, 376 province of, 353, 400, 403 qualification of Quakers, 243-44, 5 2 9 [26] trial by believed threatened by Colden, 394, 400, 404, 407, 4 1 1 , 417 trial of issue out of Barbados Chancery, 378 verdict of, tee Verdicts Justices of the peace review of corporate by-laws by, 525 Keehmle, George, 585 [ 1 1 9 ] Keeper, Lord, 12, 30, 38 (244]; tee alto Chancellor, Lord; Somers, Lord Keith, Sir William, Lieut.-Governor of Pennsylvania considers appeal, 243-44 on extension of English law to colonies, 484 Keith, Sir William, Surveyor General of the Customs, 533 Kc.Ho, Thomas, 639

740

GENERAL INDEX

Kempe, John Tabor, Attorney General o£ New York on intracolonial appeals under instruction of ' 7 5 3 . 392, 393. 396 on legal effect of land grants violating instructions, 607 [434] on vice-admiralty appellate forum, 1 9 1 [ 3 3 3 ] removal recommended, 407 prosecution of Van Rensselaer, 4 1 3 Kendall, James, Governor of Barbados, 102 [167] Kennebec Company, 164, 365, 455 [ 2 3 3 ] Kennedy, Archibald, Collector of Customs at New York, 201, 5 1 5 - 1 6 Kennedy, Francis, 533 Kilby, Christopher, Massachusetts agent, 452 [219] King, Benjamin, 226 [59], 240 [ 1 3 0 ] King, John, 148 [ 9 1 ] King, Linus, 390 [ 1 8 2 ] King, Peter, Chief Justice of Common Pleas, 313 on Barbados act regulating judicial procedure, 349 [502] King, Peter, counsel, 427 [59] King, Peter, Lord Chancellor, 546 [ 1 0 9 ] , 556 on nullification of Pa. act of 1 7 1 8 , 630-31 King, Philadelphia (Lynch), 508, 509 [ 1 7 2 ] , 510 King, Thomas, 508, 509, 510 King in Council, see Privy Council King of England authority in new accessions, opinion of Coke, 467-68 personal judicial power, 210, 2 1 1 see also Prerogative royal; and names of particular Kings King Philip's War, 1 2 5 King's Advocate advises committees, 64 advises Privy Council, 29, 35 [ 2 1 9 , 2 2 1 ] , 97 [137] on legislative power of Jersey States, 595 [366] referee in Channel Islands matters, 29, 30 [185, 189, 1 9 2 ] , 31 [ 1 9 5 ] see also Cooke, Sir John; Hedges, Sir Charles; Lloyd, Sir Nathaniel; Marriott, Sir James; Paul, George; Wiseman, Dr. Robert King's Bench, Court of, 326, 647 [ 6 1 6 ] , 649 appellate jurisdiction over Barbados, 470-71 over Bahamas, 2 1 3 over Channel Islands, 10 over colonies, 5 1 , 52 [ 3 3 4 ] , 2 1 2 over County of Durham, 167, 2 1 2 [443] over Maryland, 167 Chief Justice, 73, 1 1 6 [ 2 5 9 ] ; see also Hard-

wicke, Earl of; Holt, John; Jeffreys, George; Lee, William; Mansfield, Earl of; Parker, Thomas; Popham, John; Raymond, Robert; Ryder, Dudley control of domestic judicial system, 660 practice on writs of error, see writ of error King's Courts, 1 1 8 ; see also Admiralty, Court of; Chancery, Court of; Common Pleas, Court of; County courts, English; Exchequer Chamber; Exchequer, Court of; House of Lords; King's Bench, Court of; London Court of Hustings; Privy Council; Sur Chamber King's writ outside the realm, 10, 1 1 , 3 1 7 , 4 1 7 , 468, 469 Kinscy, counsel argument for N. J. chancery appeals, 238-39 Kinsey, John, Speaker of Pennsylvania Assembly on bill for giving parliamentary sanction to instructions, 600 [394] Knapp, Jerome W., reporter, 481 [52] Knapp, John Coghill, solicitor, 392 [ 1 9 1 ] , 408 [253] Knowler, Captain Thomas, 496-97 Laborers, Statute of, see Acts of Parliament, Statute 5 Eliz., c. 4 ( 1 5 6 2 ) La Cloche, George de, jurat of Jersey, 282 [71 ] La Cloche, John de, 282 [ 7 1 ] Lamb, Matthew, counsel to Board of Trade on colonial intestacy laws, 577 [296, 297] on disallowance of Mass. act, 640 [586] Lambert, Simon, Barbados Justice of the Peace, 205 [399] Lancaster, Chancellor of the Duchy, see Stamford, Earl of Land grants limiting effect of commissions 4t instructions, 607 [434] Larkin, George on Bayard trial, 303 [ 2 1 0 ] on extension of English law to Va., 474 [22) Laud, William, Archbishop of Canterbury, 44 Laud Commission, 44 Lauderdale, Earl of, 65 [ 4 1 7 ] Laurens, Philip, 321 [ 3 1 3 ] , 323 [ 3 2 9 ] Law, Jonathan, Governor of Connecticut, 552 [ 1 3 9 . M l ] . 573 on extension of common law to Connecticut, 574 [284] on plea to jurisdiction of Privy Council, 436 [120] on royal commission to examine Mohegan claims, 425 [46] on state of record in Clark, v. Tousey, 575 [287]

GENERAL INDEX Lawe, Nicholas, Chief Justice Jamaica Supreme Court, 193 Lawes, Sir Nicholas, Governor of Jamaica, 195 Lawyers, see Attorney General; Counsel; Crown law officers; King's Advocate; Solicitor; Solicitor General Learned counsel, 16 [ 87 ], 18 Lebrón, George, 283 [ 7 1 ] Lechford, Thomas on right of appeal in Mass., 45 [290J Lcchmere, Anne Winthrop, 538, 539 [70], 542

[86]

Lcchmere, Nicholas, Attorney and Solicitor General, 549 [ 1 2 7 ] on right of appeal from Isle of Man, 172 Lcchmere, Thomas, 355 [ 1 6 ] , 538-51, 552 [ M 6 ] , 553 [ 1 4 7 ] Lee, Sir George, counsel, 277 [34], 289 [ 1 1 8 ] , 325 [ 3 3 5 ] . 375 [>09], 377 citation of Order in Council as precedent, 481 on Rhode Island "orthodox" Minister controversy, 328, 481 Lee, William, Chief Justice of King's Bench, 324, 564 [222, 2 2 7 ] , 565 [232, 234], 566 [ 2 3 7 , 238], 568 [ 2 4 1 , 246, 247] on scope of prize jurisdiction, 520 Leeward Islands act of 1 7 1 5 for judicial establishment, &c., (disallowed), 251-52 acts disallowed for omission of suspending clause, 605 agent, see Cary, Richard appeal from general verdict believed impossible, 354 appeals regulation colonial legislation, 251-52, 262 instructions, 81, 2 1 9 [23, 28], 229 [74], 256-57 to be followed in Grenada, 235 appeals to Lords Committee, 73 Chancellor, 347 Chancery appeals, 88, 176, 354, 659, 660 coffee house in London, 277 [ 3 2 ] complaints of Mead and Freeman, 202-03 courts Chancery, 347 Common Pleas, 204 conciliar, control of, 658-59 Court of Errors, 195, 354 [ 1 2 ] Governor and Council, 78, 195, 354 [ 1 2 ] King's Bcnch and Common Pleas, 354 [12] Ordinary, 292 [ 1 3 3 ] eliminai appeals regulations, 240 [ 1 2 8 ] enforcement of Orders in Council in, 341 extension of acts of Parliament to, 474

741

Governor, see Codrington, Christopher; Hart, John; Mathew, William; Parke, John; l i o r n a s , George governor's instructions, 78, 8 1 , 2 1 9 [ 2 3 ] , " 9 [ 7 4 ] , 235, 240 [ 1 2 8 ] , 271 intracolonial appeals regulations, 78, 2 1 9 [ 2 3 ] intracolonial vice-admiralty appeals, 1 8 2 , 1 9 5 96 Secretary, see Smith, Wavel vice-admiralty appeals, 9 1 , 182, 190 see also Antigua; Dominica; Montserrat; Nevis; St. Christopher Legal advisers of Council composition, 18, 29-30 jurisdiction, 20-22 procedure, 19-20 reference of matters to, 16, 18-22, 28-30, 38, 63 Le Geyt, Philip, jurat of Jersey, 282 [ 7 1 ] Lc Geyt, Philip, 40 [ 2 6 1 ] Legislation, colonial analogy to acts of Parliament, 296, 570-71 analogy to corporate by-laws, 523, 525-26, 554. 556, 558, 559 [ 1 9 ' ] , 569-70. 631 appeals regulation by, 82, 84-87, 1 5 3 [ 1 1 3 ] , 214, 224, 245, 246-61 assent of governor necessary, 601 confirmation of, legal effect, 248, 2 5 1 , 565, 566, 568, 569, 578 [300], 635, 636 argument of Camm, 622 opinion of Board of Trade, 2 5 1 opinion of Mansfield, 5 1 2 opinion of Northey, 570, 571 opinion of Raymond, 570 [260] opinion of Yorke (P.) and Talbot, 571 "contrary to laws of England" defined, 5293 1 , 550, 552, 555, 565, 566, 568, 578, 589-91 crown control of, 523 disallowance of, 138, 155, 348, 373 [ 1 0 0 ] , 458. 465. 475 [29]. 479. 492. 5*4, 59^97, 605-06, 6 1 2 , 6 1 5 [470], 6 1 6 - 1 7 disallowance of by governors directed, 528, 598 disallowance of by proprietors, 532, 534 [ 5 3 ] distinguished from failure to approve, 457 [240] distinguished from nullification, 524, 53435, 572, 577. 585· 623 [ 5 2 2 ] , 626 interrelation with appeal and complaint, 158, 174-76 legal effect, 524, 620, 626 [ 5 3 7 ] drafted unskillfully, 503-04, 5 1 3 extension of English law to colonies by, 246 [ • 5 8 ] , 475 [29]. 477-78, 479, 482, 48487. 589

74*

GENERAL INDEX

Legislation, colonial (Continued) habitual repugnancy to laws of England charged, 147 interfering with judicial proceedings, 63941 interpretation of, 295-96, 465, 503-14 judicial review of, 524, 577, 587-88, 626, 656-57 advantages, 635 by colonial courts, 577-78, 586-92 legal basis for, 524, 525-26, 527-28, 652 opinion in colonies, 5 9 1 , 652, 653 opinion of Abercromby, 579 opinion of Jackson, 636 legislative divorces, validity of, 582-85 legislative review of, 1 2 8 , 248, 523-24, 6057, 626, 656 advice of Paris, 5 7 1 - 7 2 , 573 [ 2 7 8 ] Delaware laws never subject to, 2 5 1 evaded, 609 [ 4 4 4 ] , 622 legal basis for, 524, 526-29, 549 opinion in colonies, 652 opinion of Board of Trade, 609 [ 4 4 5 ] opinion of Fane, 561 [ 2 0 8 ] procedure, 633 [ 5 6 3 ] reform proposed by House of Lords, 561 [208] volume of business, 524 [ 2 ] limitations on proposed by Abercromby, 57982 limitations on unclear, 577-79 limiting effect of acts of Parliament, 524, 526-29, 596-97 limiting effect of governors' commissions, 466, 469, 524, 525, 526 limiting effect of governors' instructions, 2 5 1 , 528, 598, 605, 626-27, 663 argument of Camm, 6 1 8 - 1 9 , 621 argument of Hansford and Moss, 6 1 8 19 inquiry of Whitaker, 577, 605 opinion of Council, 625 opinion of Fauquier, 6 1 9 opinion of Michie, 605 opinion of Northey, 2 5 1 - 5 2 opinion of Rawlin, 598 opinion of Raymond, 599 opinion of Va. General Court, 6 1 9 opinion of Walpole, 624 opinion of Wcdderburn, 6 1 3 limiting effect of natural justice, 6 1 4 , 625, 629, 635 [569] limiting effect of royal charters, 465-66, 46869, 524, 525, 548 [ 1 1 9 ] , 549, 550. 55355. 556, 558, 564 limiting effect of royal prerogative, 582 limiting effect of treaties, 5 3 1

nullification of avoided, 533, 633 by act of Parliament, 599-600 by Chancery, 630-31 by English courts, 524, 628-29, 6 3 1 by Privy Council on judicial review, 5375 1 . 577. 585, 6 1 3 [ 4 6 6 ] , 6 5 1 , 652-53 by Privy Council on legislative review, 5 1 4 . 5 3 1 - 3 7 , 582-85, 592-97, 6 1 3 - 1 4 , 6 1 5 [ 4 7 0 ] , 6 1 6 - 1 7 , 626, 633 by proclamation, 633, 634 distinguished from disallowance, 524, 534-35. 572. 577. 585. 623 [ 5 2 2 ] , 626 methods, 523-24 opinion of Abercromby, 6 1 2 , 6 1 4 opinion of House of Lords, 625, 6 3 1 , 634 opinion of Jackson, 653 opinion of Pratt, 6 1 3 - 1 4 , 628 opinion of Wedderbum, 6 1 3 opinion of Yorke, 628, 629 policy of committee, 635, 663 precedents sought by House of Lords, 633 proof of required, 296 relationship to English law, 523 "repugnancy to laws of England" defined, 5 2 9 - 3 1 . 5 5 " . 552, 555, 565, 566, 568, 578, 589-91 legal effect of, 577-78 opinion of Coleman, 529 [ 2 6 ] opinion of Dummer, 530-31 opinion of Hopkins, 5 3 1 opinion of Michie, 529 [ 3 0 ] , 589-91 opinion of Pa. Assembly, 529 [ 2 6 ] opinion of Talcott, 550 [ 1 3 1 ] review of, methods, 523-24 right of appeal defeated by, 175-76 suspending clause required, 599, 605 vice-admiralty appeals regulation by, 265 see also ads of particular colonies Legislative bodies, colonial, see Assemblies, colonial; Councils, colonial; and under names of particular colonies Legislative divorces, see Divorces, legislative Legislative review, see Legislation, colonial, legislative review of Leigh, Egerton, 386 Leighton, Sir Thomas, Governor of Guernsey, 1 2 [ 6 8 ] , 24 [ 1 3 8 ] Leighton, William, 329, 330, 3 3 1 , 3 3 2 Leisler, Jacob, 297 Le Maistre, Elias, 283 [ 7 1 ] Le Manquais, Hugh, 29 [ 1 8 1 ] Le Marchant, Elcazar, 287 [ 1 0 0 ] Le Marchant, Josué, 287 [ 1 0 0 ] Le Mcssurier, Abraham, 287 [ 1 0 0 ] Leverett, John, Massachusetts agent, 54 Levi, Isaac, 345 [ 4 5 3 ]

GENERAL INDEX Levinz, Sir Cr es well, counsel OD jurisdiction of King's Bench in Barbados, 471-71 Lewis, Dr. David, Judge of Court of Admiralty, 1 3 [74] Lewis, Ellis, 5 1 3 Lewis, Robert, 5 1 3 Lieutenant-governor, see Governor Life, Thomas, solicitor, Connecticut agent, 643 on Mohegan controversy, 418 Lillie, Samuel, 207, 225 [ 5 7 ] Limitations of time, see Appeals regulations, time limitations Limitations, Statute of, see Acts of Parliament, Statute 21 Jac. I, c. 16 ( 1 6 2 3 ) Lingley, Samuel, 309 Lisle, Daniel de, 287 [ 1 0 0 ] Lisle, John, 40 [260] Little, Abigail, £40 Little, Edward, 200 Little, William, 188 Littleton, Edward, Barbados agent, 108 [205) Littleton, Edward, Chief Justice of Common Pleas, 30 [ 1 8 9 ] Littleton, James, shipowner, 187 [306] Liveen, John, 140 [47], 142 [54], 149 [93] Livingston, Robert, 149 [93] Livingston, Robert R., Justice of New York Supreme Court on Colden, 393 [ 1 9 7 ] on interpretation of instructions of 1753, 397-98, 401-2 removal recommended by Colden, 407 Livingston, William, 407, 646 [ 6 1 6 ] Livius, Peter, Chief Justice of Quebec on admission of new evidence on appeal, 416 Lloyd, South Carolina agent, 188 [309] Lloyd, Edward, President of Maryland Council, 353 Lloyd, Sir Nathaniel, Judge of Court of Admiralty, 73 [ 1 3 ] , 127 Lloyd, Sir Nathaniel, King's Advocate on vice-admiralty appellate forum, 185 Lloyd, Richard, Solicitor General on extension of right of appeal in N.H., 234 [9$] Lloyd's Coffee House, 277 Locke, John, philosophy of, 435 [109] Lodwick, Charles, agent of Bayard, 3 0 1 , 302 London, Bishop of, 73, 323, 327 [349]. 54S [109] aid sought by litigants, 610, 621, 625 colonial ecclesiastical jurisdiction, 136 [24] influence in Privy Council, 327 on Va. act for regulating ministers' salaries, 611 London, City of

743

Collector of Customs of, 308 Court of Hustings, 401, 403 proceedings against, $26, $27, 637 London merchants oppose bill for enforcing governors' instructions, 601 [399] petition for extension of English law to Jamaica, 478 [39] petition for nullification of Va. act of 1758, 611 London, Recorder of, see Long, Lislebone Long, Charles, 476 Long, Edward on legal effect of governors' instructions, 628

[541] on legal status of colonies, 522 [ 2 3 1 ] on private nature of governors' instructions, 597 [374] proposed reforms in Jamaica appellate system, 228 [ 7 1 ] Long, Jane Beeston, 476 Long, Lislebone, Recorder of London, 39 [ 252 ], 40 [254] Long, Sir Robert, Secretary to Charles II, 38 [244] Long Parliament, 3, 5 Lord, see Chancellor, Lord; Chamberlain, Lord; Keeper, Lord; President of the Council, Lord; Privy Seal, Lord; Steward, Lord; Treasurer, Lord Lords Commissioners, see Admiralty; Customs; Treasury; Prize Appeals; be.. Lords Commissioners of Lords Committee, see Lords Committee of Trade and Plantations; Committee of the Whole Council Lords Committee of Trade and Plantations appraised, 73, 128-31 attendance, 128 composition, 71-72, 128 dissolution, 1 2 9 ( 3 6 3 ] , 134 established, 65 executive power, lack of, 99-100 investigation of Barbados appellate system, 81 jurisdiction administrative, 72, 130 appellate, 65, 66, 70, 7 : , 73 vice-admiralty, 93 on jurisdiction of colonial councils, 96 procedure appearance, 107, 1 1 8 argument of counsel, 108-9 consultation of Attorney General, 109 hearings, 99, 100, 106, 108-9, 120, 297 Pleadings, 108-9 report, 100, 1 0 3 , 1 1 4 , 1 1 8 , 1 1 9 , 120, 1 2 ; , 126

744

GENERAL INDEX

Lords Committee (Continued) witnesses, 109, 1 1 0 - 1 1 regulation of appeals, 214 Losack, James, Lieut.-Governor of Montscmt, 242 ( 1 4 0 ] Loudoun, Earl of, Governor of Virginia commission, 619, 622 Loughborough, Lord, Lord Chancellor, 493 [106] Lovelace, Francis, Governor of New York, 68 [449], 428 [ 6 7 ] Lovelace, John, Lord, Governor of New Jersey, 598, 599 Lower Counties on the Delaware, see Delaware Lowther, Robert, Governor of Barbados, 176, 229 [ 7 5 ] , 237 [ i n ] , 362 [ 5 1 ] Lucas, John, 345 [ 4 5 5 ] Luke, George, 533 Lumley, Lord, 65 [ 4 2 2 ] Lyme (Connecticut) Mohegan lands granted to, 424 Lynch, Sir Thomas, Lieut.-Governor of Jamaica, 69 [449]. 92. 478. 508, 509. 510 Lyndc, Benjamin, Massachusetts judge, 583 [304] Lynde, Samuel, Mohegan guardian, 430 [76] Lyttleton, Sir Charles, Governor of Jamaica, 626 [ 5 3 5 ] instructions, 627 Lytdeton, William Henry, Governor of South Carolina, 386 [ 1 6 5 ] Macarell, John, 309 McCulloch, Henry, Surveyor General of North Carolina, 344 [ 4 5 3 ] McGuire, Thomas, N.C. vice-admiralty judge commission, 190 [ 3 1 5 ] Mackaskell, Norman, 272 [ 2 ] McKean, Thomas, counsel on judicial review of colonial acts, 653 McNeil, Lochlan, 649 [622] McNelly, Victor, 496 Macnemara, Thomas, 241-42 McSparran, Rev. James, 323, 327 [348], 328 [357] Madrid, Peace of, 94 Magna Carta, 4, 376, 400, 401, 402, 403 [ 2 3 ; ] , 530 Mahomet, Mohegan sachem, 429, 430 Maine, 49-51; see also Gorges, Sir Ferdinando; Proprietary colonies Mamohet, see Mahomet Man, Isle of act of 1737 for regulating appeals, 269 appeals encouraged by archbishops, 327 [349] record transmitted complained of, 291

appeals regulations absence of, 269 advice of Suffolk, 269 directions of 1774, 291 requirements of Wood, 269 appellate jurisdiction, 4, 138, 171-74, 269 appellate procedure, opinion of Colden, 400 courts, Chancery, 1 7 1 extension of acts of Parliament to, 471 feudal relationship to King, 42, 172 government assumed by crown, 269 Governor, see Wood, John grant to Derby, absence of appeals reservation in, 172-73 Tynwald, 269 insular appeals regulations, 269 Proprietor, see Atholl, Duke of; Derby, Earl of right of appeal argument of Comyns, 171-74 argument of Peere Williams, 172 defeated, 293 opinion of Northey it Lechmere, 172 opinion of Parker, 174 per saltum, 227 [67] Manning, Edward, 583-84, 606 [ 4 3 1 ] Mansfield, Earl of, Chief Justice of King's Bench, 314 [280], 324, 325, 370, 482, 489 [92] character of, 370-71 cites Order in Council as precedent, 482 influence of Norton upon, 328 influence upon policy of Committee, 366, 635 interpretation of colonial acts, 296 [ 1 5 8 ] , 507-8, 5 1 0 - 1 1 opinions of on Bankruptcy Acts, 491-92 on certification of evidence on appeal, 370 on colonial bills of credit, 337 [ 4 1 5 ] , 501-2 on colonial lawyers, 657 on colonial legislation, 512, 626 [537] on governor's commissions and instructions, 526 on judicial activity of Conn, assembly, 643-44. 649 on King's legislative power overseas, 499 on nullification of Mass. act of 1766, 632 [560], 634 [568] on rule in Shelley's Case, 325 [ 3 3 8 ] , 482 on settlement of boundary disputes, 42021 on treatment of procedural error below 381 on writs of attaint, 398 see also Murray, William

GENERAL INDEX Manx law, 295 Marchant, Henry, counscl, Rhode Island agent, 194 [ 1 4 9 ] . 3 " [ 3 1 8 ] , 339 Marchmont, Lord, 65, 324, $46 [ 1 0 9 ] Markham, William, Lieut.-Governor of Pennsylvania, $32 Marriott, Sir James, King's Advocate draft bill on vice-admiralty appeals, 192, 267 on status of Catholics in new accessions, 494 Marten, Sir Henry, Judge of Court of Admiralty, 29 [ 1 8 3 ] , 36 [223] Martin, Samuel, 274 [ 1 3 ] Martin, Thomas, Receiver General of Jamaica, 102 f 1 6 6 J , 103 [ 1 7 2 ] Martinique, 493, 497 Maryland act of 1694 for regulating appeals, 86 act of 1695 for regulating appeals, 87, 252 act of 1699 for ascertaining laws of province, (disallowed), 252 act of 1699 f ° r regulating appeals (disallowed), 252, 253 act of 1704 for regulating appeals (disallowed), 252, 253 act of 1 7 1 2 for regulating appeals (repealed), 153 act of 1 7 1 3 regulating intracolonial appeals, 253. 154 [ « 8 ] act of 1729 for regulating chancery appeals, 154 acts disallowed for violating instructions, 606 appeal from (1666), 67 appeals by customs officers, to be facilitated, 2 $ ; rehearing below ordered, 128 special verdict desirable, 363 appeals regulations colonial acts, 86, 87, 252, 253 instructions, 84, 219 [23], 252, 255 proprietary instructions, 254 trade instructions, 2 $ ; Assembly, 80, 83, 252, 522 [ 2 3 1 ] Attorney General, see Dulany, Daniel boundary dispute with Pa., 244, 250 [ 1 9 6 ] , 261, 418, 419, 455 [233] Chancellor, tee Ogle, Samuel chancery appeals, 86-87, 167, 252-53, 254 charter of 1632 appeals reservation absent, 68, 167 [206] extension of English law to colony by, 485 limitation on colonial legislation in, 465 [3] charter of 1 7 1 5 , grant of palatine powers in, 167 coffee house in London, 277 [32] Council, 177 [254], 252

745

Courts Chancery, 167, 252-53, 254, 355; tee alto Ogle, Samuel Court of Appeals, 167 [206], 226 [59], 241-42, 254 [229], 255 Court of Delegates, 484 [70] Governor and Council, 79, 80, 84, 86-87, 94, 167 [203], 177 [254], 252-54, 280 [57] Provincial court, 86, 87, 167 [203], 226 [59], 241 [ 1 3 4 ] , 342, 35*-53. Ϊ8Ο [57] special Court of Oyer and Terminer, 95 Vice-Admiralty, 178 criminal appeals, 341-42 criminal appeals regulations, 95, 240 [ 1 2 8 ] enforcement of Orders in Council in, 342 extension of English law to, 483, 485 Governor, 252-53; tee alto Blakiston, Nathaniel; Calvert, Charles; Copley, Lionel; Eden, Robert; Nicholson, Sir Francis; Sharpe, Horatio governor's instructions, 79, 80, 84, 95, 2 1 9 [23, 24), 240 [ 1 2 8 ] , 252, 254, 255, 606 House of Delegates, 167 [203] intracolonial appeals regulations colonial acts, 86, 87, 252, 253 governors' commissions, 79 instructions, 79, 80, 83, 219 [23, 24] proprietary instructions, 254 under proprietary government, 167 [203], 354-55 President of Council, 252; see alto Lloyd, Edward proprietary government restored, 166, 253-54 proprietor, see Baltimore, Lord absence of appeals to, 254 domination of judiciary by, 254 [229] right of appeal denied, 166-67 vice-admiralty appeals, 177-78 see also Proprietary colonies Maseres, Francis, Baron of the Exchequer on meaning of "repugnant to the laws of England," 531 [29] Maseres, Francis, counsel draft bill for settling laws of Quebec, 495 on desirability of special verdict, 364 [59] Mason, Dr., 63 [ 4 1 2 ] Mason, Captain John, 44, 49, 59, 1 1 6 [259], 447 [ 1 8 7 ] Mason, Major John, Mohegan guardian, 42324, 428 [67], 429, 430, 439, 440, 441 Mason, John, Jr., 432, 436-37 Mason, John Tufton, 322 [ 3 2 3 ] Mason, Robert, 1 1 5 - 2 1 , 1 3 1 , 151-52, 1 5 5 , 644 Mason, Samuel, Mohegan agent, 3 1 2 , 322 [ 3 1 8 1 , 424, 4 3 1 , 432, 433 [96], 436» 439 [133]

GENERAL INDEX Massachusetts Bay, 150 [96], 234 act for bankruptcy (disallowed), 492 act of 1692 on intestacy, $65 act of 1692 for adopting Habeas Corpus Act (disallowed), 475 [29] act of 1692 for establishing judicatories, tec. (disallowed), 1 7 5 , 373 act of 1692 for giving Governor and Council matrimonial jurisdiction, 583 [204] act of 1692 for permitting marriages by justices of the peace, 568 [244] act of 1692 on intestacy, 538, 539 [ 7 2 ] , 554 [ · 5 7 ] . 562, 563. 564-69. 570 act of 1692/3 for support of ministers, 571 act of 1693 for regulating chancery (disallowed), 1 7 5 act of 1695/6 for support of ministers, 571 act of 1697 for establishing courts (disallowed), 1 7 5 , 373, 596 [370] act of 1699 for regulating judicial proceedings (disallowed), 175, 373 act of 1 7 0 1 for review in civil causes, 226 [ 5 9 I . 373. 375 act of 1702 for evaluating foreign coins, 571 act of I 7 i o " o n intestacy, 562, 565 act of 1 7 1 6 on intestacy, 565 act of 1 7 1 9 for granting duties (disallowed), 533 act of 1720 on intestacy, 565 act of 1731 on intestacy, 565 act of 1748 for redeeming bills of credit, 501-2 act of 1766 for pardon and indemnity, 625, 631-32, 633, 634, 644 act of 1767 for relief of Abigail Little (disallowed), 640 acts of 1707 for imposing fines (disallowed), 639 acts disallowed for omission of suspending clause, 6 0 ; acts disallowed for violation of governors' instructions, 606 acts for issuing bills of credit nullified, 529

I«4]

agents, see Ashurst, Sir Henry; Auchmuty, Robert; Bollan, William; Dummer, Jeremiah; Kilby, Christopher; Leverett, John; Mauduit, Jasper; Wilks, Francis; Winslow, Edward appeals by customs officers, authorized, 139 to Lords Committee, 73 to Parliament, attempted, 45-48 appeals regulations charter provisions, 76, 139, 165-66, 175, 248, 280 [ 6 2 ] , 329, 332, 3 3 3 , 376, 400 colonial acts disallowed, 175, 248

instructions of 1753, 233 [89] opinion of N.Y. council, 403 Assembly, 444, 531 [29], 556 [ 1 7 3 ] , 566, 570, 582 [ 3 0 3 ] , 639 Attorney General, 638 [578] bills of credit, 500-3 Body of Liberties of 1641, 567 [239] boundary dispute with Conn., 419 [ 7 ] boundary dispute with N . England Couincil, 44 boundary dispute with N Ü . , 206, 234, 32223. 317, 442-49. 450-51. 457. 459. 462 [277. 278] boundary dispute with N.Y., 419 [ 7 ] , 4 2 1 - 2 2 boundary dispute with R J . , 52, 3 1 1 - 1 2 , 3 1 8 , 326-27, 449-53, 462 [278] Charter of 1629, 43 appeals provision absent, 45, 46, 48 boundary description in, 442 limitation on legislation in, 465 [ 3 ] transfer of company not precluded, 48-49 vacated, 62, 76 Charter of 1691, 186 [300], 3 3 1 , 633 [ 5 6 3 ] appeals reservation in personal actions, 7677, 138, 162, 165-66, 175, 248, 329, 332. 333. 400 appeals reservation in real actions omitted, 77, 162, 1 6 3 , 164-65, 662 boundary description in, 442-43, 445, 446, 448 limitation on colonial legislation in, 564, 565, 566, 568, 574 [284] woods reservation in, 328-29 Chief Justice, see Hutchinson, Thomas company government transferred, 48-49 complaints against, 43-44, 45-48, 54, 56, 57, 163, 207, 225 [ 5 7 ] , 332 controversy over Gorges claims, 59, 1 1 6 [259] controversy over Mason claims, 59, 1 1 6 [259]. 158, 447 [187] Council, 376 Courts conciliar control of, 658 county, 567 [239] Court of Assistants, 93, n o [ 2 2 3 ] , 308 Governor and Council, 3 3 1 , 562-63, 564, 582-83 probate, 539 [69], 540, 562-64; see also Boydell, John; Sewall, Samuel; Willard, Josiah Superior Court of Judicature, 158, 162, 163, 165, 226 [59], 280 [62], 292, 3 1 2 [270], 328-35, 373, 375, 376, 5 1 5 , 639 [ 5 7 9 ] : see also Cushing, John; Lynde, Benjamin; Russell, James; Sewall, Stephen

GENERAL INDEX Vice-Admiralty, ι66, 186 [300], 188, 5 1 5 ; see also Menzies, John criminal appeals, 243 dependence on crown, 559 ecclesiastical establishment, 571 enforcement of Navigation Acts in, 138-39, 349 Í502] enforcement of Orders in Council in, 33035 extension of acts of Parliament to, 474 gavelkind tenure in, 565 General Laws and Libertyes of 1648, 567 [239] General Court, 45, 46, 48, 55, 56-58, 162, 163, 164, 376, 445 [ 1 6 5 ] , 447 [ 1 8 7 ] , 567 [239]. 644 Governor, 280 [62], 531 [29], 545 [ 1 0 2 ] ; see also Belcher, Jonathan; Bellingham, Richard; Burnet, William; Dudley, Joseph; Dummer, Jeremiah; Hutchinson, Thomas; Pownall, Thomas; Shirley, William; Winthrop, John governor's instructions, 230 [77], 233 [89], 346, 448-49, 606, 644 House of Representatives, 563 [220, 222] interference of Laud, 44 intracolonial appeals, practice, 373, 375-77 intracolonial appeals regulations colonial acts, 1 1 0 [224], 373 instructions, 233 [89] judicial practice evidence reduced to writing, 163, 373 procedure on Orders in Council, 330 [368],334 Kennebec Proprietors, 163, 365, 455 [233] legislative divorces, validity of, 582-83, 58485. 592 legislative power, opinion of DeGrey and Willes, 633 [563] missions of Randolph to, 59-62 proceedings against, 49 [309], 62, 329 [360], 525 revised laws of 1660 it 1672, 567 [239] right of appeal defeated, 163, 292-93 denied, 45-5'. 54*58, 60-62, 74, 75, 139, 147, 148 [86], 158, 329 in real actions, denied, 162, 163, 164, 376, 4M. 563 [ 3 1 6 ] . 659 opinion of Bowdoin, 164-65 opinion of Lechford, 45 [290] opinion of Pownall, 163 opinion of Pratt, 165 opinion of Sawyer, 5, 49 [309], 60 -61, 87 royal commission of 1664, 55-58 royal hostility to, 52, 58, 556 sheriffs, 334

747

Stamp Act riots, 631 Statute of Limitations in, 333 Tea Riots, 638 [578] vice-admiralty appeals, 166, 266 vice-admiralty jurisdiction, conflict with common law courts, 514 wood cutting, 165-66, 188, 329, 332 York County, see York County see also Chartered colonies; New England Masson, Clement, 29 [ 1 8 1 ] Masters in Chancery, 3 1 3 [270], 378-79 Master of Requests, see Bacon, Nathaniel; Caesar, Sir Julius; Sadler, John Master of the Rolls, 323, 324; see also Jckyll, Sir Joseph; Scwell, Sir Thomas Mathew, William, Governor of Leeward Islands, 184, 346 [466] instructions, 232 [88] Matson, Smithel, 272 [ 2 ] Mauduit, Jasper, Massachusetts agent, 632 [560a] Maury, Rev. James, 620 Maverick, Samuel, 45 [ 2 9 1 ] , 54, 55, 1 2 3 Maycock, Thomas, Barbados judge, 203-4, 347 Mead, William, 182 [ 2 8 1 ] , 202 Menzies, John, vice-admiralty judge for New England, 199, 266 [292] Mercantilism, 132, 514, 552 [ 1 4 5 ] , 656 Mercer, Richard, 390 [ 1 8 2 ] Mercer, Roben, 390 [ 1 8 2 ] Mew, Richard, 199 Michie, James, Chief Justice of South Carolina on extension of English law to colonies, 58889 on legal status of colonies, 591 on meaning of "repugnancy to the laws of England," 529 [ 3 0 ] , 589-91 on power of judicial review, 591 Miller, Peter, 480 (49] Mills, James, 390 [ 1 8 2 ] Mills, Samuel, 196 Mingham, Captain Francis, 102 [166], 103 Minimum amounts appealable, see Appeals regulations, amounts appealable Minorca acquired by Great Britain, 267 appeals regulations, 267-68 appellate jurisdiction, 4, 138, 1 7 1 , 174, 267 Courts, 267 criminal appeals, 268, 3 1 8 governor's instructions, 267-68 Lieutenant Governor, 3 1 8 Spanish law applied, 2 9 ; vice-admiralty appeals, 192 Miranda, Isaac, 187 [307] Misdemeanor, see Criminal appeals Modyford, Sir Thomas, Governor of Jamaica, 92

748

GENERAL INDEX

M o r g a n Indians agent, see Mason, Samuel aid in conquest oí Pequots, 4 2 1 appeals financed by crown, 322 [ 3 2 1 ] , 428 [62], 430, 436 controversy with Connecticut, 3 1 1 , 322, 327, 377 [ H 5 l . 4>8, 419. 4 " - 4 2 . 449. 453. 462 [278] guardian, see Hall, John; Lynde, Samuel; Mason, Major John; Mason, Samuel; Richards, John; Wadsworth, James; Whittlesey, Stephen sachem, 435; see also Mahomet; Occom, Sampson; Uncas; Uncas, Ben status of, 428, 434, 442 Molasses Act, see Acts of Parliament, Statute 6 Geo. II, c. 1 3 ( 1 7 3 3 ) Mompesson, Roger, Chief Justice of New York, 222 Monckton, Robert, Governor of New York instructions, 392, 410 [ 2 6 3 ] Money, colonial, see Bills of credit, colonial Monson, Lord, 324, 564 [ 2 2 3 1 , 575 [288] Montagu, Duke of, 167, 420 [ 1 1 ] Montague, James, Attorney General on jury's power over form of verdict, 360 Montais, Elias, jurat of Jersey, 282 [ 7 1 ] Mont St. Michel, abbot of, 9-10 Montserrat act of 1729 for regulating appeals, 258 appeals regulations, 258 Attorney General, 242 [ 1 4 0 ] courts, 242, 258 criminal appeal, 242 Governor, see Losack, James governors' instructions, 258 intracolonial appeals regulations, 2 ; 8 see also Leeward Islands Moore, Elizabeth, 583-84, 606 [ 4 3 1 ] Moore, Sir Henry, Governor of New York, 4 1 1 instructions, 409 Moore, Sir Henry, Lieut.-Governor of Jamaica, 639 [580] Moore, John, King's Advocate in Pennsylvania, 180 [269], 243 [ 1 4 6 ] Moore, Thomas William, 390 [ 1 8 2 ] Moore, William, 646, 647-49 Moors, 296 [ 1 5 9 ] Mordaunt, Sir John, 129 [362] Morgan, Sir Henry, Governor of Jamaica, 102 [ 1 6 6 ] , 103 [ 1 7 2 ] Morice, Sir William, Secretary of State, 63 [ 4 1 2 ] , 64 [ 4 1 3 , 4 1 4 ] , 65 [ 4 1 7 ] Morris, Lewis, Governor of New Jersey on bill for giving Parliamentary sanction to instructions, 600 [394]

Morris, Lewis, New Jersey Chancellor, 237, 5 1 9 [117] Morris, Lewis, Jr., 519 [ 2 1 9 ] Morris, Robert Hunter, Chief Justice of New Jersey, 456 [238] in Conn.-Mohegan commission, 43s on N.J. act for pardoning rioters, 633 [ 5 6 3 ] Mortimer, William, 9 Morton, Joseph, Judge of Charleston ViceAdmiralty Court, 145 [67] Morton, Thomas, 43 Moss, William, 618 Murray, counsel, 277 [34] Murray, James, 390 [ 1 8 2 ] Murray, James, Governor of Quebec, 415 instructions, 235 Murray, Joseph, counsel, 239 [ 1 2 5 ] , 517 [205] Murray, William, Attorney and Solicitor General employed as counsel, 294, 384, 448, 572 [ 2 7 2 ] , 575 [288] inquiry on nature of N.J. judicial record, 365. 366 on colonial use of writ of error, 384-8; on extension of right of appeal in N.H., 234 [95] on Mass. act of pardon and indemnity, 633 [563] on N.J. pardoning act, 633 on revision of governors' instructions, 384 on settlement of Elizabeth purchase controversy, 369-70 on settlement of Kennebec Co. dispute, 455 [^33] on undesirability of general verdicts, 365 see also Mansfield, Earl of Nanfan, John, Lieut.-Governor of New York, "98 [367], 298, 299 Napper, Robert, royal commissioner ordinances, 14, 17 [ 9 1 ] , 270 Natural law limiting effect on colonial legislation, 614, 625, 629, 635 [569] Naval Stores Act, see Acts of Parliament, Statute 8 Geo. I, c. 12 ( 1 7 2 1 ) Navigation Acts enforcement of, 189, 1 9 1 , 349, 517, 520 in Barbados, 189, 218 [ 1 7 ] in Carolina, 308-9 in Dominica, 496-99 in Jamaica, 94, 356-57 in Jersey, 593 in Maryland, 95, 255 in Nevis, 496 in New England, 59-63, 72, 93, 138-39, 147. 308

GENERAL INDEX in New York, 185 [2461,201, 515-17,661 in Pennsylvania, 178-81, 309 expressly applicable to colonies, 495 interpretation of, 496 reason for vice-admiralty jurisdiction, 514 tee also Acts of Parliament, Statutes 12 Car. Π, c. 18 (1660); 15 Car. Π, c. 7 (1663); 22 & 23 Car. II, c. 26 (1670); 7 Sc 8 Wm. Ill, c. 22 (1696) Nelson, Thomas, Virginia judge, 371 [90] Nelson, William, Virginia judge, 371 [90] Nevis, 202 [386] act of 1708 for establishing courts (disallowed), 176 act of 1711 for establishing courts, etc., 256-57 act of 1732 for regulating intracolonial appeals, 258 appeal from in 1670, 69-70 appeals regulations, 256-58 Chief Justice, 256 Courts Court of Errors, 226 [59] Governor and Council, 256, 258 King's Bench and Common Pleas, 226 [59]. 256 President and Council, 184 Vice-Admiralty, 101 [164], 182 [281], 183, 496 enforcement of Navigation Acts in, 496 extension of English law to, 469 Governor, see Johnson, John; Russell, Col. James governors' instructions, 258 intracolonial appeals regulations, 256-58 Statute of Limitations in, 345 [455] vice-admiralty appeals, 183-84 see also Leeward Islands Newcastle, Duke of, Secretary of State, 330 [365], 349. 430. 557 [ 1 7 9 ] New England admiralty jurisdiction, 88 coffee house in London, 277 [32], 436 current lawful money of, 500-502 extension of English law to, 469 judicial practice evidence admitted on appeal, 310-11, 37374. 375 evidence included in record, n o , 310, 353, 355. 359. 365-66. 37°. 373-74 evidence reduced to writing, 353, 355, 365-66, 370, 373-74, 399 jury employed on appeals, 157, 373, 374, 376 Supreme Court of Judicature urged, 175 see also Connecticut; Maine; Massachusetts Bay; New England Council; New Eng-

749

land, Dominion of; N e w Hampshire; Rhode Island and Providence Plantations New Fnglaiwl Council boundary dispute with Mass., 44 land grants, 49, 451 New England, Dominion of act of 1686/7 for establishing courts, 79 [42], 82-83 appeals regulations, 82-83 Chancery appeals, 82-83 Chief Justice, see Dudley, Joseph courts Governor and Council, 79, 83 Superior Court of Pleas, 121 [290] Governor, see Andros, Sir Edmund intracolonial appeals regulations, 79, 82-83 New England record, see Record, judicial, New England practice Newfoundland charter, 467 [26] vice-admiralty appeals, 192 Vice-Admiralty Court, 517-18 New Hampshire act of 1679/80 for regulating intracolonial appeals, 81 [59] act of 1679/80 for regulating land tides, 1 1 5 ia54) act of 1693 on intestacy (disallowed), 537 [63], 568 [240] act of 1699 for regulating appeals (disallowance disregarded), 153 [ 1 1 3 ] , 175, 215 Í.4. 5 l . 217 act of 1701 on insolvency (disallowed), 15455. 175-76 act of 1701 for regulating civil trials (disallowed), 154-55, 176, 373 act of 1718 on intestacy, 537 [63] act of 1747 on intestacy, 577 act of 1764 on revival of lawsuits (disallowed), 640, 644 [610] act of 1765 (disallowed), 597 [370] act of 1768 enabling review of judgments (disallowed), 640, 644 [610] act of 1772 on money, 637 act of 1774 for Pattee divorce (disallowed), 586 [319] acts disallowed for omission of suspending clause, 605 acts for issuing bills of credit nullified, 529 [*4l agent, see Newman, Henry; Tomlinson, John appeals regulations colonial acts, 81 [59], 115 [254], 153 [ 1 1 3 ] , 175, 1 1 5 [4. 5]. " 7 governors' commissions, 82, 152 [ 1 1 3 ] instructions, 84, 152 [ 1 1 3 ] , 232 [87], 233 [89]. 234

750

GENERAL INDEX

N e w H a m p s h i r e , appeals regulations (Com.) President's commissions, 8 1 , 8 2 appeals to Lords C o m m i t t e e , 7 3 appellate jurisdiction, 1 3 8 Assembly, 1 1 5 [ 2 3 3 ] . 443. 447. 533 [ 4 8 ] . 637 judicial activity of, 8 0 , 8 3 , 6 4 0 , 6 4 4 bills of credit, 5 0 0 , 5 0 2 - 3 b o u n d a r y dispute w i t h Mass., 2 0 6 , 2 3 4 , 3 2 2 23. 3 ^ 7 . 441-49. 450-51. 457. 459. 462 [177. 1 7 8 ] b o u n d a r y dispute w i t h N.Y., 4 2 1 , 6 0 7 [ 4 3 4 ] controversy between proprietors of Bow and others, 2 3 4 , 4 4 9 controversy over Mason claims, 4 9 , 115-21, 131. J51-57. 3 5 5 [ 1 6 J . 4 4 7 [ ' 8 7 ) Council, 4 4 4 , 4 4 7 courts C o u r t of Appeal, 1 1 8 [ 2 7 0 ] C o u r t of Pleas, 1 1 7 [ 2 6 6 ] , 1 2 0 [ 2 8 $ , 2 8 6 , 287] Governor a n d Council, 7 9 , 8 0 , 8 4 , 1 5 2 f 1 1 3 ] . 1 5 6 . 224 {54], 227. 234, 444 [164], 638 [578] Inferior C o u r t of C o m m o n Pleas, i ; 6 , 5 0 2 Superior C o u r t of Judicature, 1 5 2 , 1 5 3 [113], 155, 1 5 7 , 224 [54], 227, 234, 335. 500, 503, 638 [578] e n f o r c e m e n t of O r d e r s in Council in, 3 3 5 Governor, see Allen, Samuel; Belcher, Jonat h a n ; Bellomont, L o r d ; Cranfield, Edw a r d ; Dudley, Joseph; Partridge, William; Usher, John governor's instructions, 7 9 , 8 0 , 8 4 , 1 5 2 [ 1 1 3 ] , 232 [87], 2 3 3 [89], 2 3 4 , 448-49 House of Representatives, 4 4 4 in D o m i n i o n of N e w E n g l a n d , 8 2 intestacy, customary distribution on, 5 6 8 [240] intracolonial appeals, practice, 3 7 3 , 5 0 3 intracolonial appeals regulations colonial act, 3 7 3 governor's commission, 1 5 2 [ 1 1 3 ] instructions, 7 9 , 8 0 , 1 5 2 [ 1 1 3 ] , 2 3 3 [ 8 9 ] judicial practice evidence included in record, 3 5 9 special verdicts, 1 5 4 , 1 5 5 - 5 6 , 1 5 7 , 3 5 9 60 veering t o w a r d orthodoxy, 3 7 0 legislative divorce in, 5 8 5 , 5 8 6 [ 3 1 9 ] President of t h e Council, see Cutt, John right of appeal denied, 6 0 , 1 4 7 [ 8 4 ] , 1 5 2 extension o f , 2 3 3 - 3 4 secretary, see C h a m b e r l a i n , Richard woods reservation, 3 6 0 see also N e w E n g l a n d ; Proprietary colonies

N e w Jersey act of 1 6 8 2 / 3 for regulating appeals, 8 5 act of 1 6 8 3 to prevent vexatious delays in law, 8 5 act of 1 6 9 3 for a court of appeals, 8 6 [ 8 3 ] act of 1 6 9 9 for provincial judges, 8 6 [ 8 3 ] act of 1 7 0 9 for regulating membership of Assembly, 5 9 8 - 9 9 act of 1 7 1 9 for settling N.Y. boundary, 4 5 4 , 456 act of 1 7 4 7 / 8 for p a r d o n i n g rioters, 6 3 3 act of 1 7 4 7 / 8 for settling N.Y. boundary (not approved), 4 5 4 - 5 6 act of 1 7 6 3 for settling N.Y. boundary (not approved), 4 5 9 act of 1 7 6 4 for setding N.Y. boundary, 4 5 9 act of 1 7 6 9 ( d i s a l l o w e d ) , 5 9 7 [ 3 7 0 ] act of 1 7 7 0 for settling N.Y. boundary, 4 6 1 act of 1 7 7 2 for Baxter divorce disallowed, 586 [ 3 1 9 ] act of 1 7 7 2 for setding N.Y. boundary, 461 acts disallowed for interfering with legal proceedings, 6 4 0 - 4 1 acts disallowed f o r omission of suspending clause, 6 0 5 , 6 0 7 agent, see G o r d o n , T h o m a s ; Partridge, Richard appeals limited by instructions, 2 7 0 reserved by D u k e of York, 5 3 to proprietors, 5 1 [ 3 3 2 ] appeals regulations colonial acts, 8 5 - 8 6 instructions, 2 1 9 [ 2 3 ] , 2 2 9 [ 7 4 ] , 2 3 3 [89]. 238 Assembly, 8 6 [ 8 3 ] , 3 6 8 judicial activity of, 6 4 0 - 4 1 m e m b e r s h i p of, 5 9 8 - 9 9 on Parliamentary sanction of instrucions, 600 [394] b o u n d a r y dispute w i t h New York, 4 2 1 , 4 5 3 62 Chancellor, see Morris, Lewis chancery appeals, 2 3 7 - 3 9 Chief Justice, see Morris, Robert Hunter Council, members of Conn.-Motegan coraran, 4 3 2 Council, members of Mass.-N.H. bouidary comm'n, 4 4 5 Courts C o u r t of Errors, 1 6 6 C o u r t of C o m m o n Right, 8 5 , 3 6 6 ( ( 6 ] Governor and Council, 1 6 6 , 2 3 8 , 3 6 b S u p r e m e Court, 1 6 6 , 3 6 8 criminal appeals regulations, 240 [128) Elizabeth Purchase controversy, 3 6 6 - 6 Ç

GENERAL INDEX Fcnwick's rebellion, 126-27 Governor, see Basse, Jeremiah; Belcher, Jonathan; Burnet, William; Carteret, Philip; Hunter, Robert; Lovelace, John, Lord; Morris, Lewis; Pownall, Thomas governor's instructions, 219 [23], 229 [74], 233 [89], 238, 240 [128], 270, 59899 grant of Duke oí York, 53, 454 intracolonial appeals regulations, 219 [23], 233 [89] opinion of Alexander, 166 judicial practice conformed to English, 353 general verdict usual, 659 N. England record not used, 3 6 ; jurisdiction of Andros disclaimed, 127 land riots, 239, 368, 633 legislative divorce in, 585, 586 [379] proprietors, 366-69, 454-58, 461 [270); see also Carteret, Sir George; Berkeley, Lord John reunited to crown, 367 [66] right of appeal denied, 86 [83], 166 see also Proprietary colonies; Royal colonies New London (Conn.) land grants, 424, 428 [60], 429 Newman, Henry, New Hampshire agent, 443 [ 1 5 1 . 152] New Netherland, see New York New Plymouth, 126, 165 gavelkind tenure in, 567 [239] laws, 567 [239] New York, 150 [96] act against malicious informations, 487 act of 1683 for regulating appeals, 84, 85 act of 1691 for quieting disorders, 298, 300, 301, 302 [204], 303 act of 1691 for regulating appeals, 84, 85 act of 1692, for regulating appeals, 85 act of 1703, for reversing Bayard and Hutchins sentences, 305, 306 act of 1717 for settling N.J. boundary, 454 [228] act of 1719 for settling Conn, boundary, 455 [238] act of 1754 for settling N.J. boundary (disallowed), 457-58 act of 1762 for sealing N.J. boundary, 45859 act of 1769 (disallowed), 597 [370] act of 1771 for settling N.J. boundary, 461 agent, 279 [52], 602 [399]; see also Champante, John; Charles, Robert appeals limited by instructions, 270 number of, opinion of Coldcn, 407 [250]

751

reserved in Duke of York's patent, 53 to Lords Committee, 73 appeals régulations colonial acts, 84-8; disregarded in Church's cases, 221-22 governors' commissions, 83 instructions, 219 [23], 229 [74], 233, 390-4«, 519 Assembly, 159, 300, 303, 305, 4 1 1 , 412, 455, 457 [241], 458 Attorney General, 305, 412; see also Broughton, Sampson Shelton; Graham, James; Kcmpe, John Tabor Bayard and Hutchins affair, 297-306 boundary disputes with Conn, 55, 419 [7], 455 [238], 456 [238] with Mass., 419 [7], 421-22 with N.H., 421, 607 [434] with N.J., 421, 453-62 with Quebec, 422 [ 1 9 ] chancery appeals, 84, 22t, 239-40 reforms proposed by W. Smith, Jr., 221, 239 [ 1 2 5 ] Chief Justice, see Atwood, William; Delancey, James; Horsmanden, Daniel; Mompesson, Roger; Smith, William coffee house in London, 277 [32] Collector of the Customs, see Kennedy, Archibald Council, 297, 298, 401, 458 [249], 645 declines original jurisdiction, 638 [578] in Conn.-Mohegan comm'ns., 428, 430, 432 in controversy over chancery, 645 in Mass.-NJH. boundary comm'n, 445 on interpretation of instructions of 1753, 402-5 courts Chancery, 221, 239, 645 Court of Appeals, 408 Court of Assizes, 84 [74], 126, 127, 130 [369] Court of Errors, 239 Governor and Council, 85, 92, 159, 19798, 220-21, 222, 239, 303, 392, 394, 395. 397. 4°6. 408, 409. 4«3. 5 ' 6 Oyer and Terminer and General Gaol Delivery, 84, 299 Supreme Court, 85, 159, 197, 220-21, 298, 299. 305. 390. 391 [ ' 8 5 ] , 392, 395. 396. 399. 404. 406. 407. 408, 4 1 0 , 4 1 1 , 412, 414, 516, 517 [205], 518-19, 521 [230] Vice-Admiralty, 92, 183 [283], 185, 186 [304], 188 (307], 196-98, 201, 266, 515-17,518-20

75»

GENERAL INDEX

N e w York ( C o n t i n u e d ) criminal appeals, Bayard and Hutch ins affair, 1 9 7 - 3 0 6 criminal appeals regulations, 84 [ 7 3 ] , 240 [118], 412 enforcement of Navigation Acts in, 1 8 5 [ 2 4 6 ] , 2 0 1 , 5 : 5 - 1 7 , 661 factions, 297, 3 0 1 Governor, see Bellomont, L o r d ; Burnet, William; Clarke, George; Clinton, George; Colden, Cadwallader; Cornbury, L o r d ; Delancey, James; Dongan, Thomas; Fletcher, Benjamin; Hardy, Sir Charles; Hunter, Robert; Lovelace, Francis; Monckton, Robert; Moore, Sir Henry; Nanfan, John; Nicolls, Col. Richard; Osborne, Sir Danvers; Slough (er, H e n r y ; T r y o n , William governor's instructions, 84 [ 7 3 ] , 2 1 9 [ 2 3 ] , 2 2 0 - 2 1 , 229 [ 7 4 ] , 2 3 3 , 239-40, 270, 3 0 3 , 3 9 0 - 4 1 2 , 458, 5 1 9 , 597 limited scope o f , 239, 265 intracolonial appeals number o f , opinion of Colden, 407 [ 2 5 0 ] practice, 391-98 intracolonial appeals regulations Board of Trade's directions, 159-60 colonial acts, 84-85 governors' commissions, 79 instructions of 1 7 0 2 , 2 1 9 [ 2 3 ] , 2 2 0 - 2 1 , 239 instructions of 1 7 5 3 , 2 3 3 , 239-40, 390412 instructions of 1 7 6 5 , 409, 4 1 0 reforms proposed by W . Smith Jr., 2 2 1 intracolonial vice-admiralty appeals, 196-99 judicial practice conformed to English, 3 5 3 general verdict usual, 659 recovery used to bar entails, 5 1 1 land titles, 1 3 0 , 3 9 3 , 394 lawyers' hostility to Colden, 393-94 Leisler's revolt, 297 public opinion on Parliamentary sanction of instructions, 600 [ 3 9 4 ] right of appeal denied, 1 5 8 - 5 9 right of appeal, opinion of Board of Trade, 159-60 royal commission of 1664, 55 Solicitor General, see Weaver, Thomas vice-admiralty appeals, 92-93, 1 8 5 , 186 [ 3 0 4 ] , 1 9 2 [ 3 3 3 ] , 265 vice-admiralty jurisdiction, conflicts with common law courts, 5 1 5 - 1 7 see also Proprietary colonics; Royal colonies Nicholas, Sir E d w a r d , Secretary of State, 38 [ 2 4 4 ] , 63 [ 4 1 2 ] , 64 [ 4 1 3 , 4 1 4 ]

Nicholson, Sir Francis, royal officer agent of Society for Propagation of Gospel, 222 [ 4 1 ] Governor of Maryland, 79, 87 Governor of South Carolina, 344 [ 4 5 3 ] hostility to chartered and proprietary colonies, 146 Nicoli, William, counsel, 294 [ 1 4 9 ] , 367 ( 6 6 ) Nicolls, Col. Richard, Governor of N e w Y o r k grants Elizabeth Purchase lands, 366 member of royal commission of 1 6 6 4 , 55-58, 124 Í 3 1 4 J Nicolls, William, 1 5 9 [ 1 6 3 ] Normandy, 6, 8, 88 North, Francis, Chief Justice of Common Pleas, 128 North Carolina act of j 7 4 1 for depriving Rice of office (disallowed), 582 act of 1 7 6 2 on intestacy (disallowed), 577 [297) act of 1 7 7 3 for regulating intracolonial appeals, 4 1 5 acts disallowed for omission of suspending clause, 605 acts disallowed for violating instructions, 606 agent, see Abercromby, James appeals limited by instructions, 270 appeals regulations, 2 3 2 [ 8 7 } , 2 3 3 [ 8 9 ] Assembly, 582 [ 3 0 2 ] boundary disputes with S.C., 4 1 9 [ 7 ] with Va., 4 1 9 [ 7 ] complaint of Little, 188 courts Chancery, 196 Court of Delegates, 196 Governor and Council, 188 Provincial Court, 205 [ 3 9 8 ] Superior Court, 4 1 5 Vice-Admiralty, 188, 190 [ 3 1 5 ] , 196, 2 0 5 [398J Governor, see Dobbs, Arthur; Hyde, E d ward governor's instructions, 2 3 2 [ 8 7 ] , 233 [ 8 9 ] , 270, 606 intracolonial appeals regulations, 2 3 3 [ 8 9 ] , 415 intracolonial vice-admiralty appeals, 1 9 6 right of appeal denied, 1 5 1 [ 106 J Surveyor General, see McCulloch, Henry vice-admiralty appeals, 1 8 8 , 265 see also Carolina; Royal colonies Northcy, Edward, Attorney General drafts Conn.-Mohegan comm'n., 428 [ 6 6 ] employed as counsel, 294 on Act for Preventing Frauds, 1 7 7 [ 2 5 2 ]

GENERAL INDEX on Allen's petition, 1 5 4 , on Bayard and Hutchins [226] on chancery appeals from on conciliar orders for 207 on disallowance of N . H .

156 affair, 3 0 1 - 2 , 305 Barbados, 237 rehearing below, act of 1693, 537

[63] on disallowance of N . H . acts of 1 7 0 1 , 1 5 5 on disallowance of Pa. act of 1700, 537 [ 6 3 ] on disallowance of R.I. admiralty act, 549 [121] on disallowance of South Carolina acts of 1 7 0 4 . 5 3 4 - 3 5 . 536 on enforcement of Orders in Council in Leeward Is., 3 4 1 on extension of common law to Barbados, 472

on extension of Habeas Corpus to Bermuda, 475 [ 2 9 ] on legal effect of confirmation of colonial act, 570 on legal effect of instructions, 207, 225 on Lillie's petition, 207, 225 on limiting effect of instructions upon colonial legislation, 2 5 1 - 5 2 on Mohegan commission, 425 on nonappellate judicial activity of Council, 204 on nullification of V a . act of 1 7 0 5 , 5 3 3 on reference of petitions for leave to appeal, 280, 3 4 5 on requirement of security for appeal, 229 on right of appeal f r o m Conn., 144 on right of appeal from Isle of Man, 1 7 2 on vice-admiralty appellate forum, 1 8 0 - 8 1 , 184 Northington, Earl of, Lord President, 437 [ 1 2 8 ] , 493. 624 on extension at Navigation Acts, 498-99 on nullification of Mass. act of 1 7 6 6 , 633 [ 5 6 3 ] . 634 [ 5 6 8 ] Norton, Sir Fletcher, Attorney General employed as counsel, 294, 623 [ 5 2 4 ] on status of Catholics in new accessions, 494 Norton, Sir Fletcher, Speaker of House of Commons, 324 [ 3 3 2 , 3 3 4 ] influence upon Mansfield, 327-28 N o v a Scotia appeals regulations instructions, 2 3 2 [ 8 7 ] , 2 3 3 [ 8 9 ] , 4 1 5 to be followed in Quebec, 2 3 5 , 4 1 5 Va. rules followed 1 7 1 9 - 1 7 4 9 , 2 3 2 [ 8 7 ] Council, in Mass.-N.H. boundary comm'n, 445 members of N . Y . - N . J . boundary commission, 459

753

courts Governor and Council, 2 3 2 [ 8 7 ] Vice-Admiralty, 193 governor's instructions, 2 3 2 [ 8 7 ] , 2 3 3 [ 8 9 ] intracolonial appeals regulations, 2 3 3 [ 8 9 ] scheme of government proposed by Shirley, 376 [ 1 1 9 ] Occorri, Samson, Mohegan sachem, 437 [ 1 2 8 ] Ogden, David, counsel on appeal from Pa. assembly, 647 [ 6 1 6 ] on desirability of special verdict, 368 [ 7 1 ] Ogle, Samuel, Chancellor of Maryland, 2 5 5 Oglethorpe, ]ames, proprietor of Georgia, 1 6 8 [2! I] Oliver, Massachusetts judge, 583 [ 3 0 4 ] Onslow, Arthur, Speaker of House of C o m mons, 564 [ 2 2 3 ] Orby, Sir Charles, 228 [ 7 1 ] , 476 Order in Council appeals regulation by, 1 3 - 1 4 , 1 5 [ 8 3 ] , 2 5 , 3 2 - 3 3 . 7 7 . 87, 97 [ 1 3 3 ] . 1 3 9 . 269, 287 authorizing appeals by customs officers, 1 3 9 confirmation of colonial acts by, 5 2 3 , 5 6 5 , 566 directing inquiry into Colonial judicial procedure, 3 4 5 directing disregard of N . Y . appeals regulations in Church cases, 2 2 2 directing legislative review of Channel Is. acts, 593, 594 directing reversal of Bayard and Hutchins sentences, 3 0 5 directing seizure of Spanish ships, 5 1 8 directing signature of "cases" by counsel, 290 directing special verdicts in N . H . , 1 5 4 , 1 5 5 , >56 directing supplement of record in criminal appeals, 306-8 directing suspension of execution pending appeals, 2 3 0 - 3 1 disallowing Conn, act of 1 7 0 5 , 549 [ 1 2 1 ] disallowing Jamaica act of 1 7 6 1 , $97 disallowing Mass. act of 1 7 6 6 , 6 3 3 disallowing Pa. act of 1 7 1 8 , 630, 6 3 : disallowing S.C. acts of 1 7 0 4 , 5 3 4 - 3 5 , 6 3 3 - 3 4 disallowing S.C. act of 1 7 1 7 , 5 3 5 - 3 6 , 6 3 3 - 3 4 disallowing Va. act of 1 7 5 8 , 6 1 4 , 6 1 6 , 6 1 7 , 620 disallowing V a . act of 1 7 5 8 , legal effect o f , 6 ' 5 [ 4 7 0 ] . 6 1 6 - 2 0 , 622, 623 dismissing appeal for nonprosecution, f o r m of, 576 establishing authority of Lords Committee, 66, 70, 7 1 establishing Committee of the Whole, 1 3 6 establishing right of appeal from R.I., 1 4 1 - 4 2

GENERAL INDEX

754 Order in Council ( C o n t i n u e d )

nullifying Channel Islands legislation, 594, 595 nullifying Conn, act of 1699, 5 5 1 , 5 5 a , 5 5 3 , 557. 564. 633. 634 nullifying Jamaica act of 1 7 5 9 , 592, 6 3 3 , 634 nullifying Pa. acts, 5 3 2 , 6 3 3 , 634 nullifying Va. acts of 1 6 7 6 , 6 3 3 precedential effect of, 464, 478, 480-82, 506, 568-69, 660-61 promulgating Jersey code of 1 7 7 1 , 595 regulating conciliar proceedings, 3 1 5 [ 2 8 2 ] , 325 [ 3 3 5 ] . 480 [ 5 0 ] regulating Guernsey appeals, 1 3 - 1 4 regulating Jersey appeals, 1 3 restricting Channel Islands appeals, 1 1 - 1 2 see also (Appeal to Privy Council, procedure, final Order in Council; Doleance, procedure, order to admit appeal Ordinary appeals regulations, instructions, 2 7 1 , 662 Governor as, 1 7 6 , 220, 240 "Ordinary course of law," meaning of, 4 Ormond, Duke of, 64 [ 4 1 7 ] Osborne, Sir Danvers, Governor of New York instructions, 220, 4 1 0 Ossory, Earl of, 64 [ 4 1 7 ] Otis, James, counsel, 1 6 5 , 3 3 3 Owen, Captain John, 1 8 7 [ 3 0 5 ] Oweneco, Mohegan Indian, 4 2 4 , 426, 439 [133] Oyer and Terminer, special courts, 93 Packer, Thomas, 500 Paget, Henry, 3 3 6 Palmer, Eliakim, Connecticut agent, 574 [ 2 8 5 ] on jurisdiction of Privy Council, 4 3 6 [ 1 2 0 ] Palmes, Edward, 1 4 0 , 1 4 2 [ 5 4 ] , 1 4 3 [ 5 6 ] , 1 4 7 [ 8 4 ) , 149, 1 5 0 [96] Paris, Ferdinand John, solicitor, 3 0 9 , 3 2 1 [ 3 1 2 ] , 3 2 2 [ 3 1 8 ] , 3 2 3 , 462 [ 2 7 8 ] , 574 [ 2 8 5 ] advises in Camm's appeal, 624 [ 5 2 5 ] New Jersey agent, 454, 4 5 5 , 457 [ * 3 9 . 240] on Elizabeth purchase controversy, 369 f82) on getting crown law officers' opinioD, 648 [626] on incompetence of Lechmere's counsel, 550

[129] on issue involved in Philips v. Savage, 564 [229] on New England record, 3 6 5 on nullification of Va. act of 1 7 5 8 , 6 1 2 on provision for legislative review in Pa. charter, 635 [ 5 7 0 ]

on

settlement of intercolonial boundary disputes, 4 2 1 , 454, 455 [ 2 3 4 ] , 457 [ 2 3 9 ] , 462 [ 2 7 7 J on technique of securing approval of C o n n . act, 5 7 1 - 7 2 , 5 7 3 [ 2 7 8 ] surprised at judicial nullification, 551

[133] Paris, Treaty of ( 1 7 6 3 ) , 2 3 5 , 493-94, 496 Parke, James, Baron of the Exchequer, 2 0 7 [408] Parke, John, Governor of Leeward Islands, 204 [391 ]• 347 Parker, Mary, 582 Parker, Phineas, 582 [ 3 0 3 ] Parker, Thomas, Chief Baron of the Exchequer, 324 Parker, Thomas, Chief Justice of Kings Bench, 174. 3^3 Parliament Acts of, see Acts of Parliament appeals to attempted, 46-48 discussion of union of Scotland with E n g land, 467 emergence as quasi-entity, 1 0 interference in judicial proceedings, 637 investigation of colonial conduct, 5 6 1 legislative divorces by, 583, 584 Long, 3 , 5 recognition of prerogative in dominions overseas, 470 relief sought for nullification of Conn, act, 556-57 right to legislate for colonies, 486 writ of error practice, 386 [ 1 6 7 ] see also Council in Parliament; House of Commons; House of Lords Parmyter, Paroculus, naval officer, 1 9 6 Partridge, Captain, 497 Partridge, Richard, colonial agent, 3 1 1 , 437 [ 1 2 3 , 1 2 6 ) , 450 [ 2 0 6 ] , 563 [ 2 2 2 ] attempt to influence Willes, C . J., 3 2 7 , 4 5 2 53 on appeals in Mass. real actions, 3 6 5 [ 6 2 ] on Elizabeth purchase controversy, 3 6 7 [ 6 6 ] , 369 [ 8 1 ] on general and special verdicts, 365-66 on Parliamentary sanction of instructions, 600 [ 3 9 2 ] on Statute 24 Geo. II, c. 53 ( 1 7 5 1 ) , 603

Γ405]

Partridge, William, Lieut.-Governor of New Hampshire, 154 Paske, Dr. Thomas on prerogative of allowing appeals, 429 [ 7 0 ] Pattee, Eliphalet, 586 [ 3 1 9 ] Paul, George, King's Advocate on scope of prize jurisdiction, 5 1 9 [ 2 2 0 ]

GENERAL INDEX Paulct, Sir Hugh, Governor of Jersey, 12 [68], 23 [130] Pawtuxet (Rhode Island) boundary dispute, 122-26, 418, 419 Peace, see Madrid; Paris Peake, Anne, 639 [580] Pearse, Captain Vincent, 518-19 Peere Williams, William, counsel on right of appeal from Isle of Man, 172 reports, 483 Pemberton, Sir Francis, counsel on extension of English law to Jamaica, 47« Pembroke, Earl of, Lord President, 427 [59], 564 [223] Penn,John on setdement of boundary disputes, 462 [277] Penn, Richard on bill for enforcing instructions, 602 [401) Penn, Thomas, 363 Penn, Thomas, Proprietor of Pennsylvania on bill to prevent emission of bills of credit, 599 [391] on bill for enforcing instructions, 601 [398], 602 [399, 400, 401] on Hamilton's inquiry about instructions, 604 [408] on legal effect of instructions, 604 [407], 605 [409] on provision for legislative review in Pa. Charter, 635 [570] Penn, William, Proprietor of Pennsylvania, 148 [91], 180, 455 [2331 charter granted to, 76, 243 defends chartered interests, 148 [86] defense of Pa. act directing appeals, 249 [183] influence at court, 179 [263] on Act for Preventing Frauds, 177 [253] on effect of decree in Richardson v. Hamilton, 630 on liability of colonial courts to procedural error, 379 proposed reform in appeals regulations, 216 proposed reunion of proprietary colonies to crown, 148 [90] Pennsylvania act of 1698 for preventing frauds ite. (nullified), 531-32, 592» 633 act of 1700 on intestacy (disallowed), 537 [63], 568 [240] act of 1701 for establishing courts, 24849 act of 1705 on intestacy, 537 [63]

755

act of 1 7 1 0 / 1 1 for establishing courts (dual lowed), 226 [60], 249 act of 1 7 1 3 for regulating party wallt, fcc. (disallowed), 176 act of 1 7 1 3 / 4 on giving evidence (disallowed), 244 act of 1 7 1 ; for regulating appeals (disallowed), 181 [277], 249, 265 act of 1 7 1 5 for taxing liquor (disallowed), 597 [370] act of 1718 for advancement of justice, 589 act of 1718 for sale of house (disallowed and nullified), 629-31 act of 1722 for establishing courts, 228, 24950, 251 [198] act of 1727 for establishing courts (disallowed), 250, 251 act of 1767 for establishing courts, 250 act of 1769 for dissolving marriage, 585 [319] ' act of 1772 for dissolving marriage (disallowed), 585 [319] act of 1773 disallowed, 636 act for use of recovery to bar entails, 512 act permitting jurors to qualify by affirmation, 243-44, 529 [26] acts confirmed by failure to disallow, 636 agent, 6oi [399] appeals regulations: charter provisions, 53, 76, 148 [90], 228, 400 colonial act of 1701 (disallowed), 24849 colonial act of 1 7 1 0 / 1 1 (disallowed), 249 colonial act of 1 7 1 ; (disallowed), 181 [277], 249 colonial act of 1722, 228, 249-50 colonial act of 1727 (disallowed), 250, 251 colonial act of 1767, 250 colonial act of 1 1 Anne, nonexistent, 250 governor's commission, 83 instructions, 233 [89], 250 Assembly, 327, 529 [26], 604, 629, 646, 648 [620] Assembly, Speaker of, see Kinsey, John boundary dispute with Conn., 419 [7], 422, 462 boundary dispute with Md., 244, 250 [196], 261, 418, 419, 455 [233] Charter, grant of legislative power in, 529 [26], 585 [ 1 1 9 ] provision for appeals in, 53, 76, 148 [90], 228, 243, 400, 646 [616] Charter, provision for legislative review in, 635-36

756

GENERAL INDEX

Pennsylvania (Continued) coffee house in London, 377 [ 3 1 ] courts Common Pleas, 226 [60], 309 Court of Oyer and Terminer, 243 Supreme Court, 226 [60], 244, 250, 2 6 1 ; see also Allen, William Vice-Admiralty, 178, 532; see also Quary, Robert criminal appeals, 243-44 enforcement of Navigation Acts in, 178-80 extension of acts of Parliament to, 5 2 1 , 589 Governor, see Fletcher, Benjamin; Gookin, Charles; Gordon, Patrick; Hamilton, James; Keith, Sir William; Markham, William governors' instructions, 233 [89], 250, 604, 605 [422] governors' instructions, legal effect of, 230 [77] intracolonial appeals regulations, 226 [60], 233 («9) judicial practice: recovery used to bar entails, 5 1 2 legislative divorce in, 585 Lower Counties on the Delaware, see Delaware partible inheritance in, 567 [240] proprietor, 532; see also Penn, Thomas; Penn, William Quary's charges, 148, 180 right of appeal denied, 148 [ 9 1 ] special verdict believed necessary for appeal, 363 vice-admiralty appeals, 1 7 1 - 8 1 , 249, 265 see also proprietary colonies Penny Cook, Proprietors of, 234 [97], 449 Penrice, Sir Henry, judge of Court of Admiralty, 5>4 Pequot Indians, 422 Peres de Tavora, Alvaro, 95 Perryn, Richard, counsel, 294 Petition and appeal, see Appeal to Privy Council: procedure Petition for leave to appeal, 38, loo, 101-2, 103, 1 1 9 , 129, 152-53, 158, 160, 1 7 1 - 7 2 , 1 8 1 , 225, 226, 279, 280, 281, 302-3, 330, 408, 5 1 5 . 544-45. 572 [274]. 574. 575. 576 [ 2 9 1 ] ; see also Doleance Petitions in the nature of appeals, 66, 68 Petition of appeal, see Appeal to Privy Council: procedure Pettit, John, 493 [ 1 0 6 ] Philadelphia (Pennsylvania), regional viceadmiralty court, 1 9 1 ; see also Ingersoll, Jared Philips, Gillam, 562-64 Philips, John, Jr., 639 [579]

Phips, Sir William, Governor of Massachusetts, n o [223] Phips, Sir William, Governor of Massachusetts commission, 91 [97] Pierpont, Jacob, 643 Pine, Dr. Tertullian, royal commissioner, ordinances, 14, 17 [ 9 1 ] , 270 Pinfold, Dr. Charles, on prerogative of allowing appeals, 429 [70] Pinfold, Dr. Charles, Governor of Barbados, 1 9 1 , 293 [ 1 3 8 ] Pipon, Joshua, jurat of Jersey, 282 [ 7 1 ] Piracy, 73 [ 13 j. 146. I47t »94 Pitkin, William, Governor of Connecticut, 652 Place, Captain Seth, 201 Plantation coffee houses in London, 277 Plymouth colony, 449 Plymouth Company, 165 [ 1 9 3 ] Popham, John, Chief Justice of Queen's Bench, 12 [70] Popple, William, 144 [60] Popple, William, Governor of Bermuda questions validity of instructions, 258 (250], 233 Porter, John, 56, 57 Portland, Duke of, Governor of Jamaica, 478 Portmore, Lord, 323 Powle, Sir Henry, Master of the Rolls, 128 Pownall, Thomas, Governor of Massachusetts, 232 [88] declines government of Pa., 606 [ 4 3 1 ] on appellate system, 208 on Council's suitability as appellate court, 208 on legal effect of commissions and instructions, 526 on right of appeal, 163 Pownall, Thomas, Lieut.-Governor of New Jersey, 458 [249] Powys, Sir Thomas, on jurisdiction of King's Bench in Barbados, 471-72 Poyer, Rev. Thomas, 221-22 Poynings' Law, 469 [ 1 0 ] Pratt, Charles, Attorney General employed as counsel, 294, 456 [238] on extension of Navigation Act to Guadeloupe, 499 on commitment of Smith and Moore, 648 on interpretation of Virginia act, 505 on legislative power in Va., 613-14 on Mass. legislative divorces, 584 on nullification of colonial legislation, 628 on right of appeal in Mass., 165 procrastination of, 648 [620] Precedent, colonial use of, 464, 465 [ 2 ] Prerogative Court of Canterbury, 29 [ 1 8 3 ] , -95 [ 1 5 2 ]

GENERAL INDEX Prerogative, rojral, 84, 91, 124, 133 [ 1 0 ] , «69, 104, 312, 418, 466, 580, 590, 60s, 608 [444], 610, 614, 635, 636, 648, 652, 656 altered by Revolution of 1688, 91 [97] basis of legislative review, 524 effect of colonial legislation on, 84 [74], 2 5 ' . 484, J77, 622 effect of Northington's opinion on, 499 in dominions overseas, 88, 467-70, 529, 558 in dominions overseas, administrative practice, 470 in dominions overseas, opinion of Coke, 468-69, 656 in dominions overseas, opinion of Fane, 558 in dominions overseas, opinions of Holt and Jeffreys, 470 in dominions overseas, policy of crown, 47576 in dominions overseas, recognized by Parliament, 470 in setding boundary disputes, 422, 457, 46t limiting effect on colonial legislation, 582 nullification of Channel Islands legislation by, 596 of allowing appeals, 58 [ 3 8 1 ] , 84 [74], 1 4 1 , 142, 143, 144, 159, 172, 175, 252, 253, 400, 402, 429 of granting pardons, 632 of regulating money, 603 [404], 604 [405] Prerogative writs, 10 [56], 2 1 2 [443] President of the Council, Lord, 30, 289, 3 1 5 [281, 282], 323, 326 [338], 375 [109], 427 [59). 442, 575 [288]; see also Bedford, Duke of; Devonshire, Duke of; Dorset, Duke of; Granville, Earl of; Northington, Lord; Pembroke, Earl of; Wilmington, Earl of Fretorian appeals, 404 Prince Edward Island, 597 [370] Privy Council, 3, 134, 207, 296, 409, 594, 595, 639 (578]. 657 analogy to House of Lords, 65s ancillary bodies employed, 25, 37, 344-50; see also Board of Trade; Council for Trade and Plantations; legal advisers; royal commissions; etc. appeals policy, absence of, 365, 416 appeals policy, opinion of W. Smith Jr., 39394 appeals regulations, see Appeals regulations appeal to, see Appeal to Privy Council appellate procedure abuses of, 31-34, 38 in Channel Islands cases, 96-99, 282-84 legal practitioners, 272-73, 276 precedent for in Channel Islands cases, 5, 6 1 . 70. 77. 87. 1 7 1 . 2 1 5 reform opportunity lost, 351-52

757

simplicity of, 662 summary nature of, 272 treatises on, 272 under Elizabeth, 14-19 under first Stuarts, 34-37 weaknesses of, 276 appraisal of, 464-65, 653, 654-63 attendance, 1 2 - 1 3 , 2 5> 38 [244], 64 clerk, 24 [ 1 3 8 ] , 39 [252], 273, 292 [ 1 3 3 ] , 307 [229], 3 1 2 [269], 3 1 5 [282], 381 [ 1 4 4 ] , 410, 464, 498, 595 [366], 624 Committee for Foreign Plantations, 44 Committee for Grievances, 69-70 Committee for Guernsey Appeals, 64 Committee for Hearing Appeals from die Plantations, 72, 129 [ 3 6 1 , 363], 1 3 5 , 66364 committee for Jersey and Guernsey affairs, 65. 97. 98, 528 committee for Jersey appeals, 3 1 · 64 Committee for Trade, 64 committee system, 25, 30-31, 38, 39, 44, 63, 64. 97, 1 3 5 Committee to consider Irish Bills, 136-37 complaint jurisdiction, 16, 23-25, 36, 108, 1 1 2 , 128, 160, 168, 1 7 1 , 174, 202-6, 227 [67]. 448 composition of, 12, 25, 137, 401, 464, 66263 control of colonial justice, 41-45, 138, 65859, 660 Council Board, 99, 137, 146 [ 7 2 J , 1 5 3 Council Board, confused with Lordi Commissioners for Prize Appeals r 186, 188 [307], 200 Council Board, functions, 137-38 Council Board, hears Bayard appeal, 304 Councils for Trade and for Plantations, 65 Council Office in Whitehall, 273, 275, 283, 321 determinations, enforcement of, 13, 33-34, 100, 103-4, 120-21, 205 [396], 3 1 7 , 3 2 3 , 328-44 determinations, precedential value of, 464, 478, 480-82, 506, 568-69, 660-61 determinations, reports of, 481, 506, 660-61 emergence as quasi-enbty, 10 failure to achieve reforms, 663 failure to adhere to consistent policy, 66263 failure to revise instructions, 662 functions, nature of, 3 1 6 - 1 7 ignorance of colonial conditions, 657 impartiality doubted, 326-28 intervention in criminal cases, 241-43 intervention in Va., 44 Irish Bill Committee, 136-37

75»

GENERAL INDEX

Privy Council (Continued) judicial activity, 366, 464, 524 [ a ] . 651, 658 Judicial Committee, 3, 204 [408], 658, 664 jurisdiction, administrative, 13, 37, 464 jurisdiction, appellate, before definite judgment refused, 206-7 council's concept of, 3 5 1 , 657 domestic, 4, 173 inherent right of, 1 4 1 , 142, 144, 172, 333 limited by instructions, 270-71 pamphlet on, 209 opinion of colonials, 208-13 opinion of Pownall, 208 over Channel Is., 4-5, 1 1 , 12, 63 over Isle of Man, 4, 138, 171-74 over R J . , 248 [ 1 7 2 ] reforms urged by Abercromby, 168-70 scope of, 7 1 , 73, 1 2 1 vice-admiralty, 90-9;, 101 [ 1 6 4 ] , 109, 1 1 3 , 138, 145, 177-93 jurisdiction, instance, disclaimed, 187 jurisdiction, original, 95-96, 472 jurisdiction, original, in Channel Is., 206-7 jurisdiction over boundary disputes, 418-22 jurisdiction, nonappellate, refused, 202-8 jurisdiction, prize, disclaimed, 187 learned counsel, 16 [87], 18 not bound by colonial legislation, 248 on limitations on colonial legislation, 625 on prosecution of Bayard and Hutchins, 304-5 policy against judicial activity by colonial assemblies, 637, 640, 642, 643, 644-45 not bound by instructions, 225-26 not led astray by New England record, 37778 policy on extension of English law to colonies, 482-83, 548 [ 1 1 9 ] policy on procedural error below, 205, 37983 precatory letters, 36-37 Register, 15, 25, 34, 37, 96, 177, 186 [300], 202, 251, 261, 275, 2 8 1 , 309, 367 [66], 379 [ 1 3 0 ] . 417 (59]. 480, 593, 595 [366], 658 separation of powers negated by, 637 status of, opinion of Pratt, 613-14 see also Appeals regulations; Appeal to Privy Council; Chancery appeals; Committee of the Whole Council; Council for Trade and Plantations; Criminal appeals; Doleance; Legal advisers; Legislation, colonial; Lords Committee of Trade and Plantations; Petition for leave to appeal; President of the Council, Lord; Vice-admiralty appeals

Privy Council Memorandum on extension of English law to colonies, 482-83, 548 ["9] Privy Seal, Lord, 30, 31 [193, 195], 63 [ 4 1 2 ] , 64, 323; see also Trevor, Lord Prize Appeals, Lords Commissioners for, 135 [24], 186, 188 [307], 195, 196, 200, 201, 520 Prize jurisdiction, 187, 188 [307], 190 [ 3 1 5 ] , 200-201, 265, 518-20 Probate courts, jurisdiction of, 540 Procedure, see Appeal to Privy Council, procedure; Board of Trade, procedure; Chancery appeal, procedure; Committee of the Whole Council, procedure; Criminal appeal, procedure; Doleance, procedure; Lords Committee of Trade and Plantations, procedure; Privy Council, appellate procedure; and other topics Proclamation, royal for erecting governments in new accessions (1763)» 235, 494 guaranteeing rights of Jamaicans ( 1 6 6 1 ) , 478 nullifying Va. acts of 1676, 633 power to repeal confirmed colonial acts by: opinion of Northey, 570 Proprietary bodies, appeals to, 49-51, 74-75, 254-55 Proprietary colonies governors' instructions in, 2 5 1 , 600 imperialistic hostility to, 146-48 reluctance to transmit laws to England, 295 reunion to crown proposed, 146-49, 1 5 1 see also Bermuda; Maine; Maryland; New Hampshire; New Jersey; New York; Pennsylvania; Virginia; Carolina; South Carolina Proprietary instructions appeals regulation by, 214, 254-55 Protectorate, see Interregnum Providence (Rhode Island), boundary dispute, 122-26 Pugh, Hugh, 243-44 Quakers, 54, 243, 244, 529 [26], 549 [ 1 2 1 ] Quary, Robert Judge of Pennsylvania ViceAdmiralty Court, 179, 532 enforcement of Navigation Acts, 178-80 hostility to nonroyal colonial governments, 146, 148, 180 Quebec acquired by Great Britain, 235, 493 appeals regulations, 234 [94), 235-36, 4 1 5 Attorney General, 415

GENERAL INDEX Board of Council proposed to hear appeals, 295 [«54] boundary dispute with New York, 422 [19] Chief Justice, see Livius, Peter civil government, report of Yorke and DeGrey, 494 [ 1 1 5 ] courts, 235-36, 382, 415, 416 criminal appeals regulations, 23;, 236, 240 [«28] enforcement of Orders in Council in, 342 extension of English law to, 493-95 Governor, see Murray, James; Carleton, Sir Guy; Haldimand, Sir Frederick governor's instructions, 234 [94], 235, 236, 240 [128], 416, 495 intracolonial appeals practice, 416 intracolonial appeals regulations, 234 [94], 235, 236, 415-16 judges, see Jackson, Richard; Livius, Peter laws of, Maseres' draft bill for settling, 495 Ordinances, 235, 236, 416, 626 [537] precedential effect of Orders in Council in, 482 special verdicts believed necessary for appeal, 364 special verdict legislation urged, 364-65 status of Catholics in, 493-95 Quebec Act, see Acts of Parliament, Statute 14 Geo. Ill, c. 83 (1774) Queen's Bench, Court of, see King's Bench, Court of Queensberry, Duke of, 324, 375 [109], 651 Quincy, Edmund, 334 Quit-rents, 1 1 6 [261], 119 [282], 120 [286], «53. 255. 455 [234]. 456, 458 [249], 508, 510 [ 1 7 8 ] Raines, Sir Richard, Judge of Court of Admiralty on right of vice-admiralty appeal, 90-91, 130 [367] Ramsey, Anne, 272 [2] Randal, John, 374 [104] Randall, Jonathan, 339 Randolph, Edward, royal officer, 148 [89], 177 [253] appeals from Mass., 61, 73 [to, u ] , 100 [>53]. 107 employed as counsel, 107 [197]. ««8, 120 [286] enforcement of Navigation Acts, 59-62 hostility to nonroyal colonial government, 146-47 missions to Mass., 59-62 proceedings against Mass., 49 [309], 62, 329 [360], 525

759

Randolph, Is ham, Virginia agent, 223 [50] Randolph, John on extension of English law to colonics, 485 Randolph, Peyton, Attorney Genend of Virginia, 506 Randolph, William, 3 1 3 [ 1 7 5 ] Ratdiff, Philip, 43 Rattray, counsel on limitations upon S.C. legislative power 587-88 Rawlin, William, Attorney General of Barbados on legal effect of governors' instructions, 598 Raymond, Robert, Attorney and Solicitor General, 176 [247] on force of royal prerogative in colonies, 251 on legal effect of confirmation of colonial legislation, 570 [260] on legal effect of N.J. act contrary to instructions, 599 Raymond, Robert, Chief Justice oí King's Bench, 323, 464 [ 1 ] , 546 [109] Read, John, counscl, 451 Reception of English law, see Acts of Parliament, extension to colonies; Common law, extension to colonies Record, judicial certification of evidence outside of, 370-71 copy of denied to defeat right of appeal, 29293 curtailed to defeat right of appeal. 373-78 in chancery appeals, 378-79 in criminal causes, .297 in writ of error proceedings, 353, 654 New England practice, n o , 163, 310, 353. 355. 359. 365-66, 370, 377, 378, 659 New Hampshire practice, 365, 370 Rhode Island practice, 513 proposed application of Stamp Λ α to, 293 see also Appeals regulations, record below; Appeal to Privy Council, procedure Recovery, employed to bar entails, 5 1 1 - 1 2 Register, Council, See Privy Council, Register Regulations, see Appeals regulations Resolve, employed by Mass. General Court in exercise of appellate jurisdiction, 644 Restoration, 54, 63, 66, 88, 655 Revolution of 1688, 65, 89, 90 [93], 91, 135, 470, 526 Rhett, William, S.C. surveyor of the customs, 535 Rhode Island and Providence Plantations, 150 [96] act of 1666 for calling special courts, 52

τ6ο

GENERAL INDEX

Rhode Island and Providence {Continued) act of 1680 for regulating intracolonial appeals, 246 [ 1 6 3 ] act of 1703 regulating admiralty jurisdiction (disallowed), 549 [121] act of 1709 for regulating appeals, 246 act of 1 7 1 4 - 1 5 for registration of deeds, 51214 act of 1719 for regulating appeals, 246 act of 1729 for regulating appeals, 246 act of 1730 regulating intracolonial appeals, 642 act of 1741 for establishing equity court, 248 act of 1743/4 for abolishing equity court, 248 act of 1746 for regulating appeals, 246 act of 1749/50 for adopting acts of Parliament, 486 act of i 7 ; o for regulating appeals, 246 act of 1766 for regulating appeals, 247 act of 1769 for regulating appeals, 247-48 act of 1771 for regulating appeals, 248 acts for issuing bills of credit (nullified), 519 [24] acts for judicial determination of compliance with appealable amount, 224 [53], 246 [164], 247 agent, 601 [399]; see also Marchant, Henry; Partridge, Richard appeals ordered to be allowed, 141-42 practice, precis of evidence annexed to record, 513 proportion of reversals, 659 record transmitted complained of, 292 [131] appeals regulations, 224 [ 5 1 ] , 642 [593]. 659 conformity to appealable amounts judicially determined, 224 [ 5 3 ] , 246 [164], 247 colonial acts, 246-48 appellate jurisdiction of Privy Council abrogated, 248 [ 1 7 2 ] Assembly, 124, 161 [180], 199, 200, 224 [ 5 1 ] , 246, 247, 335, 336, 338, 339, 341, 374 [104] judicial activity of, 641-42, 649-50 bills of credit, 337-38, 340-41, 649 boundary dispute with Conn., 419 [7] boundary dispute with Mass., 52, 3 1 1 - 1 2 , 318, 326-27, 449-53. 462 (278] charges of Board of Trade, 150 Charter appeals reservation absent, 48 [303], 52,

76 [29], 140, 142 [52], 148 [90] description of boundaries in, 449 not considered on extension of English law, 485 provision for boundary-dispute settlement, 52-53, 121, 449 [204] provision for legislative review absent, 549 [121] Council, in Mass.-N.H. boundary comm'n, 445 courts Commissioners, 125 control of by Privy Council, 6 ; 8 Equity Court, 162, 248, 486 [79], 520, 642 General Court of Trials, 122-23, 141, 246 [163]. 355. 642 Governor and Council, 199-200, 246, 485 Inferior Court of Common Pleas, 162 [180], 226 [59], 337, 373, 374 [104], 486, 513, 520, 649 Superior Court of Judicature, 162 [180], 224 [53]. 246, 247, 248, 335, 336, 337-41. 373, 374 [104], 485 (79], 486, 513, 520, 560, 642, 649-50 Vice Admiralty, 187, 199-200; see also Menzies, John custom as to partition of joint-tenancies, 560-61 enforcement of Orders in Council in, 335-41 extension of acts of Parliament to, 341 [329]. 474. 485-86 Governor, see Cranston, Samuel; Hopkins, Stephen; Jenckes, Joseph; Wanton, John Governor and Assistants in Conn.-Mohegan comm'n, 430 Governor and Company in General Assembly, 650 governor's assent not necessary to legislation, 601 governors' instructions absent, 230 [76], 601 intracolonial appeals, practice, 161, 373, 513 intracolonial appeals regulations, 246, 642 intracolonial vice-admiralty appeals, 199. 200 judicial practice, evidence reduced to writing, 373-74 legislative review by Privy Council, absence of, 248 "orthodox" minister controversy, 323, 327, 328, 481 Pawtuxet-Providence boundary dispute, 122-26, 418, 419

GENERAL INDEX

761

prolific source of appeal·, ι 6 ι , 165, 246, »70. 335. 659 public credit, crown control of, 602-3 public opinion on bill sanctioning instructions, 600 [394] right of appeal denied, 147 [84], 150-51, 161, 162 opinion of Board of Trade, 141 royal commission of 1664, 56, 123 vice-admiralty appeals, 186-87 see also Chartered colonies; New England Rice, Nicholas, 582 Richards, John, Mohegan guardian, 430 [76] Richardson, Zacharia, 629, 630 Richier, Isaac, Governor of Bermuda, 1 0 ; [185], 108 [209], 1 1 2 [ 2 3 1 ] , 129 [361] Rights of English subjects, 42, 47 [302], 57, 75. 83. u 6 , 126, 144 [62], 163 [185], 165, 172, 209, 2 1 1 , 238, 243 [144], 374 [104], 393. 4°». 404. 405. 4 1 1 . 478 [39]. 482, 483 [68], 484, 485, 522 [ 2 3 1 ] , 530, 543 (94], 548 [ " 9 l . 554 [156]. 566, 574 [284], 580, 600 [394]. 609 [445], 646, 648 Robin, Rowland, jurat of Jersey, 282 [ 7 1 ] Robinson, Matthew, 374 [104] Robinson, Robert, counsel

Rutledge, John, Attorney Ceserai of South Carolina on intracolonial appeals, 343-46, 387-89, 390 Ryder, Dudley, Attorney and Solicitor General employed as counsel, 294, 384, 448, 564 f " 5 l . 575 [*88] on colonial use of writ of error, 384-85 on Elizabeth purchase controversy, 369 on legal effect of governors' instruction« is Pa., 604 on Mass. act of pardon and indemnity, 633 [563] on New Jersey act for pardoning rioters, 633 on precedential effect of Orders in Council, 481 on revision of governors' instructions, 384 on scope of vice-admiralty jurisdiction, 5 1 7 on setdement of Mass.-NJi. boundary, 44; on use of special verdict, 369-70 revision of draft act on vice-admiralty appeals, 189 Ryder, Dudley, Chief Justice of King's Bench, 324 Ryswick, Treaty of, 277 [34]

on appeals from general verdicts, 355 [16] on efficacy of Conn. It Mass. intestacy acts, 539 Robinson, Sir Thomas, 3 7 ; [109] Robinson, William, Commissary of Virginia on grounds for dismissal of Camm's appeal, 6ai [525] on state of tobacco crop, 610 [455] Rogers, James, general sergeant of R.I., 124 Rogers, John, 149 [93] Rogers, Samuel, 149 [94] Rolfe, John, proctor in admiralty, 194 [347] Roman Catholics, legal status of, 493-95 Rome, appeals to, 47 [301] Rose, Thomas, 149 [94] Rouse, William, 639 [579] Royal African Company, 127, 128, 382 Royal colonies, 77, 78-88, 138 colonial legislation regulating appeals, 25161 legal status of, 417 opposition to conciliar appellate jurisdiction, 151-160 see also names of particular colonies Royal commissions, see Commissions^ royal Royal Courts, see Channel Islands, Courts Rumford (New Hampshire), 234 Rushout, Sir John, 375 [109] Russell, James, Massachusetts judge, 583 [304] Russell, Colonel James, Governor of Nevis, 69

Sabeere, Ann, 560 Sabeere, Daniel, 560 Sabeere, John, 560-61 Sadler, John, Master of Requests, 39 [252], 40 [254] St. Albans, Earl of, Governor of Jersey, 64 [413] St. Christopher, 203 [381], 204 acquired by England, 277 [34] act of 1 7 1 1 for regulating appeals, 257 act of 1724 for regulating appeals, 257-58 act of 1724 requiring special verdicts, 362 admiralty jurisdiction, 88 appeals regulations colonial acts, 257-58 instructions, 233 [90], 257, 258 courts Court of Errors, 233 [90] Governor and Council, 257 King's Bench and Common Pleas, 226 Γ59]. 233 [90] Ordinary, 314 [280] extension of English law to, 469 governor's instructions, 233 [90], 258 intracolonial appeals regulations, 257-58 Statute of Limitations extended to, 277 [34] see also Leeward Islands St. Eustatius, 190 [319) St. Lucia, 167, 168, 420 [ 1 1 ] St. Vincent, 167-68, 234 [94], 420 [ 1 1 ]

GENERAL INDEX Salisbury, Earl of, 467 [ 6 ] S a l t o n s t a l l , R e v . G u r d o n , G o v e r n o r of C o n necticut, 1 4 0 [ 4 7 ] , 4 2 4 S a n d y s , Sir E d w i n , 4 6 7 [ 6 ] Sandys, Samuel, Lord, 324, 326 [ 3 3 8 ] , 375

[109] Sarlc, 1 7 1 ; see alto C h a n n e l Islands Saunders, Thomas, 536 Savage, Faith, 564 Sawyer, Robert, Attorney General o n r i g h t of a p p e a l f r o m Mass., 5, 49 [ 3 0 9 ] , 6 0 - 6 1 , 87 on r i g h t of a p p e a l f r o m T a n g i e r , 1 2 9 [ 3 6 2 ] Scire f a c i a s , w r i t o f e m p l o y e d to r e v i v e j u d g m e n t s , 3 3 6 S c o t l a n d , 8, 64, 1 7 3 , 4 6 7 , 492, 493 [ 1 0 6 ] Scots status in E n g l a n d , 4 6 7 Scott, A l e x , 3 9 0 [ 1 8 2 ] Scott, M i c h a e l , 4 9 3 Scottow, Joshua, 57 [369] S c r o p e , H e n r y le, C h i e f Justice of K i n g ' s Bcnch, 10 Secretaries of S t a t e , 7 2 - 7 3 , 3 1 5 [ 2 8 2 ] ; see also Addison, Joseph; Calvert, George; Coke, J o h n ; D a r t m o u t h , L o r d ; H e d g e s , Sir C h a r l e s ; H i l l s b o r o u g h , E a r l o f ; Morice, Sir W i l l i a m ; N e w c a s t l e , D u k e o f ; N i c h o l a s , Sir E d w a r d ; Shclburnc, L o r d ; Suffolk, Earl o f ; T o w n s h e n d , V i s c o u n t ; T r u m b u l l , Sir W i l l i a m ; V e r n o n , J a m e s ; W i n d e b a n k , Sir Francis Security, see A p p e a l s r e g u l a t i o n s ; A p p e a l to Privy C o u n c i l , p r o c e d u r e Seddon, Samuel o n v i c e - a d m i r a l t y a p p e l l a t e f o r u m , 189-90 S e n e g a l a n d G a m b i a , 268-69 Sentinel, publicist, 407 S e p a r a t i o n of p o w e r s , 6 3 7 S e t t l e m e n t , A c t o f , see Acts of P a r l i a m e n t , S t a t u t e 1 2 & 1 3 W m . I l l , c. 2 ( 1 7 0 0 ) S e v e n Y e a r s ' W a r , 2 3 5 , 4 3 6 [ 1 2 3 ] , 496 Sewall, Samuel, Massachusetts probate judge, 539 [ 6 9 ] , 540 Sewall, Stephen, Massachusetts judge, 583 [304] Sewell, T h o m a s , counsel, 294 S c w e l l , Sir T h o m a s , M a s t e r of the Rolls, 4 3 7 [ 1 2 9 ] , 442 S h a r p e , H o r a t i o , G o v e r n o r of M a r y l a n d , 1 7 8 [260] proprietary i n s t r u c t i o n s , 2 5 4 S h a r p e , J o h n , solicitor, 4 6 2 [ 2 7 8 ] , 5 5 7 [ 1 8 1 ] , 574 [ 1 8 5 ] , 576 [ 2 8 9 ] o n e x t e n s i o n o f E n g l i s h l a w to colonies, 574 [ 2 8 4 ] o n i n a d m i s s i b i l i t y o n a p p e a l of evidence not in record, 5 7 5 [ 2 8 7 ]

on legal effect of g o v e r n o r s ' instructions, 606 [431] o n r e f o r m of instructions o n a p p e a l s , 3 3 2 [88] o n s u p p l e m e n t of record b e l o w , 3 7 2 [ 9 1 ) o n validity of C o n n , c u s t o m of intestate distribution, 5 7 4 [ 2 8 6 ] S h a r p e , Joseph, 5 1 8 [ 2 1 3 ] S h a r p e , J o s h u a , solicitor on desirability of special verdict, 364 [ 5 9 ] S h a r p e , W i l l i a m , T r e a s u r y Solicitor, 3 1 2 , 3 1 5 [28!] on s i g n a t u r e of petitions of a p p e a l by c o u n sel, 4 3 6 [ 1 2 1 ] S h a w , Sir J o h n , L o n d o n Collector of C u s t o m s , 1 4 5 [ 6 7 ] , 308 [ 2 4 5 ] S h e l b u r n e , L o r d , Secretary of S t a t e o n nullification of colonial acts, 6 3 2 [ ; 6 o a ] , 633 Shelley's Case, R u l e in, 3 2 5 , 4 6 4 , 4 8 2 Shipman, William, 202 [386] Shirley, W i l l i a m , counsel, 4 3 1 [ 8 6 ] , 4 5 1 Shirley, W i l l i a m , G o v e r n o r of M a s s a c h u s e t t s , 3 3 3 - 3 4 , 520 in w o o d - c u t t i n g controversy, 3 3 2 on p o w e r to g r a n t new trials, 644 o n right of a p p e a l in real actions, 1 6 3 , 3 7 6 scheme of g o v e r n m e n t for N o v a Scotia, 3 7 6 [169] S h o w e r , Sir B a r t h o l o m e w , c o u n s e l o n extension of acts of P a r l i a m e n t to J a maica, 470-71 o n extension of c o m m o n l a w to B a r b a d o s , 472, 473 [ 2 0 ] S h r e w s b u r y , D u k e of, 1 3 3 [ 9 ] S l a v e factors d i s a b l e d f r o m sitting in J a m a i c a council, 2 2 8 [ 7 1 ] , 348, 476 Slaves t r e a t m e n t of as real property in 504-6

Virginia,

Slingesby, Secretary of C o u n c i l for F o r e i g n Plantation, 69 [ 4 4 9 ] Sloughter, Henry, Governor of N e w York c o m m i s s i o n , 79, 83 Smart, Captain, 1 8 7 [305] S m i t h , J o h n , r e m o n s t r a n t , 45 [ 2 9 1 ] S m i t h , J o h n , special m a r s h a l , 1 2 6 [ 3 4 0 ] S m i t h , Richard, 3 8 4 S m i t h , W a v e l , Secretary of L e e w a r d

Islands,

176, 233 [90]. 346 [466] S m i t h , W i l l i a m , Chief Justice of N e w Y o r k , 1 5 9 [ 1 6 4 ) , 160 [ 1 6 9 ] , 3 0 3 , 304 admiralty judge, 183 [ 2 8 3 ] o n appeal f r o m Pa. a s s e m b l y , 647 [ 6 1 6 ] o n interpretation of g o v e r n o r s ' instructions of 1 7 5 3 . 3 9 6 - 9 7

GENERAL INDEX Smith, William, Ir., counsel counsel for Cunningham, 391 formulation of Horsmanden's opinion, 395

[ao 5 ]

interpretation of instructions of 1753, 394 on appeal from Pa. assembly, 646, [616] on appeals policy of Privy Council, 39394 on application of Osborne's instructions, 220-21 on Colden, 393 [196] on legal effect of governors' instructions, 616 [480], 624 [527] on score of vice-admiralty jurisdiction, 517 (ao5) on settlement of N.Y.-N.J. boundary, 461 [270] praised by N.Y. assembly, 4 1 1 proposed reforms in N.Y. intracolonial appeals regulations, 22t, 239 [ 1 2 ; ] Smith, Rev. William, 327, 646-49 Society for the Propagation of the Gospel in Foreign Parts, 122, 430 [77] Sodor and Man, Bishop of, 227 [67], 375 [109] Solicitors argument before Committee of the Whole Council, 293, 3 1 7 [286] fees, 321-22 necessity of employing, 294 [144] services render«!, 321-22, 576 [289] Solicitor General appeals not regularly referred to, 349 influence with Privy Council, 295 [ 1 5 0 ] legal adviser to Board of Trade, 349 legal adviser to Committee of the Whole Council, 349 legal adviser to committees for Jersey and Guernsey appeals, 64 [413, 414] legal adviser to Privy Council, 18 [99), 29 referee in Channel Islands matters, 29, 30 [185], 31 [195] see also Bacon, Sir Francis; Crown law officers; DeGrey, William; Dodderidge, lohn; Dunning, lohn; Finch, Heneage; Harcourt, Simon; Ha wies, lohn; Lechmere, Nicholas; Lloyd, Richard; Murray, William; Raymond, Robert; Ryder, Dudley; Strange, lohn; Talbot, Charles; Thomson, William; Wearg, Clement; Willes, Edward; Yorke, Charles; Yorks, Philip Somers, Lord, Lord Keeper, 134 [ 1 5 ] Somerset, Duke of, 427 [59] South Carolina act of 1692 for adoption of Habeas Corpus (disallowed), 475 [29]

763

act of 1704 for establishment of religion (disallowed), 534*35. 613 [466] act of 1704 for preservation of government (disallowed), 534-35» 6 1 3 [466]» 033*34 act of 1 7 1 2 giving acts of Parliament effect in colony, 246 [ 1 5 8 ] , 475 [29], 484-85, 589 act of 1 7 1 7 for taxing imports (disallowed), 535-36, 613 [ 4 1 3 ] . 633-34 act of 1720 regulating appeals, 255-56 act of 1721 for establishing court of chancery, 256 act of 1746 for altering Chancery establishment, 256 [ 2 3 5 ] act of 1754 for regulating executors and administrators, 586, 591 act of 1769 (disallowed), 597 [370] acts disallowed for omission of. suspending clause, 605 acts disallowed for violating instructions, 606 agent, 602 [399]; see also Garth, Charles; Lloyd, ; Yonge, Francis Attorney and Advocate General, 386; tee also Abercromby, James; Rudedge, John appeal, method of uncertain, 1 5 1 , 188 [309] appeals, limited by instructions, 270 appeals regulations colonial acts, 255-56 criticized, 219-20 instructions, 232 [ 8 7 ] ; 233 [89]; 256; 386-90 Assembly, 256, 577. 587-88, 589. 59» [348] boundary dispute with N.C., 419 [ 7 ] chancery appeals regulations, 256 charters, see Carolina, Charter Chief Justice, see Michie, James; Whitaker, Benjamin Council, 577 courts Chancery, 256 Common Pleas, 386-88, 586 Governor and Council, 245-46, 356, 38689 Ordinary, 220, 240, 586 Vice-Admiralty, 189, 520, 536; set also Morton, Joseph ecclesiastical establishment, 534 extension of English law to, 484-85, 588-89 General Court, 592 [348] Governor, see Boone, Thomas; Glen, James; Lyttleton, William Henry; Nicholson, Sir Francis governor's instructions, 232 [87], 233 (89], 245, 256, 270, 386-90, 577, 606 instructions to agents Yonge and Lloyd, 188 [309]

7*4

GENERAL INDEX

South Carolina (Continued) intracolonial appeals regulations acts of Parliament applied, 145-46, 388 colonial acts, 335-56 instructions, 233 [89], 245, 386-90 Jamaica precedent sent, 387, 390 opinion of Rutledge, 245-46, 387-89. 390 legislative divorce in, 585 [314a] legislative power in, 577, 587-88 Proprietors and Assembly, 534, 535 vice-admiralty appeals, 189 see also Carolina; Proprietary colonies; Royal colonies South Sea Company, 222, 241 Spain, war with, 520 Spain, King of, 309, 518 Spanish law, 295 Speaker of the House, tee House of Commons, speaker Special verdicts, tee Verdicts Spotswood, Alexander, Lieut-Governor of Virginia on legal effect of treaties, 531 [34] Spry, William, Judge of Halifax Vice-Admiralty Court commission, 191 Stamford, Earl of, Chancellor of Duchy of Lancaster, 323, 367 (66], 427 [59] S u m p Act, see Acts of Parliament, Statute 5 Geo. III. c. 1 2 (1765) Standly, Nathaniel, 76 Stanley, Caleb on right of appeal in Conn., 143 [57] Stapleton, Lieut.-Colonel, royal commissioner in Nevis, 69 [457] Star Chamber jurisdiction over Channel Islands, 11, 14, 33 Statute against Fraudulent Conveyances, see Acts of Parliament, Statute 27 Eliz., c. 4 (1585) Statute De Donis, see Acts of Parliament, Statute 13 Edw. I, St. ι , c. ι (1285) Statute of Charitable Uses, see Acts of Parliament, Statute 43 Eliz·. c. 4 ( 1 6 0 1 ) Statute of Frauds, see Acts of Parliament, Statute 29 Car. II, c. 3 ( 1 6 7 7 ) Statute of Jeofails, 384 Statute of Laborers, see Acts of Parliament, Statute 5 Eliz., c. 4 (1562) Statute of Limitations, see Acts of Parliament, Statute 21 Jac. I, c. 16 ( 1 6 2 3 ) Statute of Uses, see Acts of Parliament, Statute 27 Hen. VIII, c. 10 (»536) Statute of Usury, see Acts of Parliament, 12 Car. II, c. 13 (1660)

Statute of Westminster II, see Acts of Parliament, Statute 1 3 Edw. I, St. 1 ( 1 2 8 5 ) Statute of Wills, see Acts of Parliament, Statute 32 Hen. VIII, c. 1 (1540) Statutes, colonial, see acts of particular colonies Statutes, English, see Acts of Parliament Steele, Samuel, 76 Steward, Lord, see Devonshire, Duke of Stewart, Lieut.-Colonel Robert, 413-14 Stirling, Earl of, see Alexander, William Strange, John, Solicitor General employed as counsel, 294, 3 3 1 , 448, 564 [226], 571 [272] Stuarts, 3, 2 ; , 28, 72, 214 Suffolk, Earl of, Secretary of Sute directions to governor of Isle of Man on appeals, 269, 291 Sunderland, Earl of, 323 Supreme Court of the United Sutes, 643 Surveyor General of the Customs, see Dunbar, David; Keith, Sir William Sutton, Edward, 337 [ i n ] Sydenham, Lord, 40 [260] Tabb, Humphrey Toy, 507 Tabb, John, 507 Tabb, Martha, 507 Talbot, Charles, Solicitor General employed as counsel, 294, 545 on extension of bankruptcy acts to colonics, 492 on legal effect of treaties, 531 [ 3 5 ] on legislative powers under Conn, charter, 558 on operation in colonies of English fines and recoveries, 574 [284], 589 on repeal of confirmed colonial acts, 571 Talcott, Joseph, Governor of Connecticut, 16061, 430 [82], 545 [ 1 0 5 ] , 550 [130, 1 3 1 ] , 552, 555 [ 1 6 4 ] , 557 [178, 179]. 573-74 Tanficld, Laurence, Chief Baron of the Exchequer, 467 [6] Tangier, 129 Taylor, Daniel, 142 [54] Taylor, Nicholas, 292 [ 1 3 3 ] Test Act, tee Acts of Parliament, Sutute 25 Car. II, c. 2 ( 1 6 7 3 ) Thayer, David, 5 1 3 Thomas, George, Governor of Leeward Islands, 190, 292 [ 1 3 3 ] Thomas, George, Governor of Leeward Islands instructions, 232 [88] Thomas, Lazarus, 243-44 Thomas, Samuel, 200 Thomas, William, Jamaica judge, 639 [580] Thompson, James, 390 [182]

GENERAL INDEX Thomson, William, Solicitor General on disallowance of S.C. act of 1 7 1 7 , 535-36 Thurlow, Edward, Attorney General on legislative power of Jersey States, 595 [366] Thurston, Daniel, 200 Time limitations for taking appeals, see Appeals regulations Tobacco chief commodity of Virginia, 607 Tobago, 207 [408] Toleration Act, tee Acts of Parliament, Statute i W m . & M., St. ι , c. 18 (1688) Tollman, Peter, 52 [334] Tomlinson, John, New Hampshire agent, 447 Torrington, Lord, 546 [109] Touies, Earl of, 30 [187, 190] Towers, John, 124 Townshend, Charles, Viscount, Secretary of State, 323 Trade and Plantations, Lords Commissioners for, tee Board of Trade Trade and Plantations, Lords Committe for, see Lords Committee of Trade and Plantations Trade to America, Act for Encouragement of, see Acts of Parliament, Statute 6 Ann. c. 37 (1707) Trading companies charters of, 41, 41 reference of petition of appeal to, 102 Traile, George, 390 [ 1 8 2 ] Treasurer, Lord, 30 [ 1 9 1 ] , 3 1 [>93l. 38 [244]. 515 Treasury, 133 [7] Treasury, Lords Commissioners of advisers to Privy Council, 73, 137 appellate jurisdiction, 93 consulted on crown financing of appeals, 349 Treasury Solicitor, see Sharpe, William Treaty effect on colonial legislation, 531 see Aix-la-Chapelle; Madrid; Paris; Ryswick; Utrecht Treby, George, Attorney General, 102 [165] Trelawny, Robert, 50, 51 Trent, William, Pennsylvania judge, 243 [146] Trevor, Sir John, Secretary of State, 65 [417] Trevor, Lord, Lord Privy Seal, 546 [109] Trevor, Thomas, Attorney General on vice-admiralty appellate forum, 145-46. «78 Trevor, Thomas, Chief Justice of Common Pleas, 323, 427 [59] Trott, Nicholas, 129 [361)

765

Trott, Nicholas, Judge of S.C. Vice-Admiralty Court failure to use powers, 536 Trumbull, Jonathan, Governor of Connecticut, 462 [277] Trumbull, Sir William, Secretary of State, 367 [66] Tryon, William, Governor of New York on vice-admiralty appellate forum, 192 [333] Tucker, John, 292 [ 1 3 2 ] Tudor, John, 334 Tudors, 3 Tyler, Lancelot, 240-41 Uncas, Mohegan Sachem, 422, 423-24, 427, 438-39. 440, 4 4 ' Uncas, Ben, Mohegan Sachem, 429, 430-31, 433. 434 Uncas, John, Mohegan Sachem, 431 [86] Updike, Daniel, counsel, 451 Uses, Statute of, see Acts of Parliament, Statute 27 Hen. VIII, c. 10 (1536) Usher, John, Lieut.-Governor of New Hampshire, 153 [ 1 1 6 ] , 154 [ 1 2 7 ] , 155, 156, 157 [ " 5 5 ) . '58 [160, 1 6 1 ] , 321 [ 3 1 2 ] , 329 [360], 355 f ' 6 J . 360, 533 [48] Usury, Statute of, see Acts of Parliament, Statute 12 Car. II, c. 13 (1660) Utrecht, Treaty of, 268, 277 [34] Vanbelle, Peter, 183 Van Cortland, Philip, 432 Van Dam, Rip, 298, 299 [ 1 7 9 ] Van Rensselaer, John, 412, 413 Vassall, William, 333-34, 374-75 Vaughan, John, Chief Justice of Common Pleas on extension of English law into new accessions, 469-70 Vaughan, John, Lord, Governor of Jamaica, 73 [13]. 128 Vaughan, William, 108 [ 2 1 1 ] , 1 1 2 [ 2 3 3 ] , 1 1 4 [ 1 1 9 ] , 1 1 8 [279], 153 [ 1 1 4 ] , 154 [126] Verdicts, 1 1 3 - 1 4 , 3 ' 3 - M . 357*58, 359, 374. 378, 4 i 3 ' i 4 general appeal from allowed, 354, 358 appeal from allowed on N. England record, 355 appeal from believed impossible, 354, 355. 357. 358, 370 appeal from not allowed in N.Y., 394-98 appeal from not allowed when evidence not reduced to writing, 356 supplemented in Jamaica, 353, 362

766

GENERAL INDEX

Verdict, general (Continued) usual in N.J. and N.Y., 659 nature of, 352 opinion in colonies, 354-55, 357, 358, 359" 65 opinion of Allen, 364 [ 5 7 ] opinion of Chew, 363-64 opinion of Maser es, 364 [59] opinion of Montague, 360 opinion of Murray, 365 opinion of Ogden, 368 [ 7 1 ] opinion of Partridge, 365-66 opinion of Sbarpe, 364 [59] opinion of Wilmot, 363 review of at common law, 352-53 special absence of supplied by representations of court, 3 7 1 - 7 2 believed necessary for appeal, 363, 364 content improper, 242 directed on new trial, 1 5 3 , 154, 158, 357" 58. 359 disadvantages of, 362 [55} employed in Va., 4 1 5 , 620 employed to show conformity to appealable amount, 224 judge's power to direct, 370 legislation on urged in Quebec, 364-65 preferred for conciliar review, 153, 154, 158, 353-54. 6 1 7 [487] proposed in Elizabeth purchase controversy, 368, 369-70 refused by juries, 155-56, 1 5 7 , 359-60 refused to be directed in Va., 617 required by colonial act, 229 [ 7 5 ] , 36062 urged in N.H. woods-reservation suits, 360 Vernon, James, Secretary of State, 323, 326, 427 [59] Vice-admiralty appeals, 73, 88-95, [164], 109, 1 1 3 , 138, 177-93. 200-2, 349 [502], 3 5 1 . 659 appellate forum inquiry of Blakiston, 177-78 opinion of Blackstone, 191 opinion of Board of Trade, 183, 348, 662 opinion of Cooke, 180-81 opinion of Hedges, 178, 179-80, 185 opinion of Hedges and Ward, 91-92 opinion of Kempe, 192 [ 3 3 3 ] opinion of Lloyd, 185 opinion of Northey, 180-81, 184 opinion of Seddon, 189-90 opinion of Trevor, 145-46, 178 opinion of Tryon, 192 [ 3 3 3 ] opinion of West, 185-86

problem unseen, 271 intracolonial, 1 9 1 , 193-200 jurisdiction of Halifax Court, 191 provision in vice-admiralty commission, 90 reforms proposed by Abercromby, 168-69 regional vice-admiralty courts, 192 regulations civil rules applied, 265-66 colonial legislation, 265 comment by Andrews, 266 draft bill of Lords Commissioners, 18889 draft bill of Marriott, 192, 267 governors' instructions inapplicable, 265, 662 non-existent, 266-67 opinion of Dummer, 186, 266, 267 right of denied in Jamaica, 62 opinion of Exton, 90 opinion of Raines, 90-91, 130 [367] see also under names of particular colonies Vice-admiralty commissions, 90, 91, 177-78, 179. 180, 182 [283], 183, 184, 185, 186 [300], 188, 190 [ 3 1 5 ] , 1 9 1 , 192 Vice-admiralty courts, 514 colonial hostility to, 146, 178, 514 established for all America at Halifax, 191 established for regions at Boston, Charleston, Halifax, and Philadelphia, 191 see also under names of particular colonies Vice-admiralty jurisdiction, 89 basis of, 88, 90, 182-83, 184-85, 188 colonial hostility to, 514 conflicts with common law jurisdiction, 12728, 1 8 1 , 185, 205 [398], 514-20 extension to colonies of acts of Parliament on, 514-20 opinion of Jones, 127-28 purpose of, 514 scope of opinion of Alexander, 5 1 7 [205] opinion of Forrester, 517 opinion of Ryder, 5 1 7 opinion of W. Smith Jr., 5 1 7 [205] see also Prize jurisdiction Vice-admiralty patents, see Vice-admiralty commissions Vice-Chamberlain, 30 [ 1 9 1 ] , 31 [193, 195], 63 Í 4 1 2 ] , 64, 65 [ 4 1 7 . 4 1 8 ] Victualling the Navy, Commissioners for, 206 [399]. 357 Virginia, 467 act of 1 6 6 1 / 2 on induction of ministers, 37 act of 1 6 6 1 / 2 for regulating ministers' salaries, 607

GENERAL INDEX acts of 1676 following revolt (nullified), 633. 634 act of 1696 for regulating in tricoloma! appeals, 260 act of 1696 for regulating ministers' salaries, 607 act of 1705 on intestacy, 296 [158], 506-8 act of 1705 for establishing General Court, 259 [256], 260 act of 1705 for preventing escheats, 507 act of 1705 for requiring residence of officers (disallowed), 532-33 act of 1705 for treatment of slaves as real property, 504-6 act of 1710 for explaining act of 1705, 259 [256] act of 1710 for regulating intracolonial appeals, 260 act of 1727 for explaining act of 1705, 504, 505, 506 act of 1727 on reception of ministers, 371 act of 1727/8 for establishing county courts tec., 260 [263] act of 1727/8 for regulating intracolonial appeals, 260, 261 act of 1734 for barring of entails, 512 act of 1738 for regulating ministers' salaries, 608 [441] act of 1744 for relief of creditors, 491 act of 1748 for penalizing non-payment of parish creditors, 618, 622 act of 1748 for regulating intracolonial appeals (disallowed), 260-61, 415 act of 1748 for regulating ministers' salaries, 607-8, 609, 610 [451, 454], 615, 617, 618, 623 act of 1748 for regulating practice of attorneys, 261 act of 1749 for barring of entails, 512 act of 1752 for erecting lighthouse (disallowed), 617 [485, 489] act of 1753 for regulating appeals, 261, 415 act of 1753 for regulating ministers' salaries, 608 [441] act of 1754 for regulating ministers' salaries, 608 [44t] act of 1755 for regulating ministers' salaries (disallowed), 608-10, 612, 614, 621, 624 [527] act of 1757 regulating practice of attorneys, 261 act of 1758 for regulating ministers' salaries (disallowed), 610-15, 617-26 act of 1761 for regulating practice of attorneys, 261 act of indemnity after Bacon's Rebellion, 632 [560a]

767

acts disallowed for omission of suspending clause, 605 acts disallowed for violating instructions, 606-7 admiralty jurisdiction, 88 agent, 619 [501]; tee alto Abercromby, James; Randolph, Isham appeals on general verdict believed impossible, 358 on merits in common law actions, 415 record supplemented by court's representations, 370-71 record transmitted complained of, 292 [132] to Lords Committee, 73 appeals regulations colonial acts, 259 [256] followed in Nova Scotia, 232 [87] instructions, 83, 219 [23], 233, 371, 619 not unusual, 259 Assembly, 313-14, 622 appeals to prohibited, 80, 83, 215 [3] Attorney General, tee Jones, Gabriel; Randolph, Peyton attorneys and barristers-at-law, 261 Bacon's Rebellion, 80 [48], 632 [560a], 634 boundary dispute with N.C., 419 [7] chancery appeals, 282 [68], 292 [ 1 3 2 ] clergy, in Parsons' Cause, 608, 609, 610, 611, 613, 614, 615 [470], 616-17, 618 [490], 619-20, 624, 625, 657 Committee of Correspondence, 619 [501] complaint of Bland, 96 commissary, tee Dawson, Rev. Thomas; Robinson, William conciliar intervention in, 44-4; Council, 223, 313-14, 348, 468, 609 courts Chancery, 490 conciliar control of, 658 county, 260-61, 512, 617, 620-21 General Court, 233 [92], 259-61, 271, 312 [269], 314, 342, 356, 357, 371-72. 382, 415, 465 [a], 505, 506, 507, 512, 615, 618, 619, 623, 625 General Court records destroyed, 261, 618 [493] Governor and Council, 43, 45 [288], 78, 79, 80, 83, 96, 103, 259-61, 271, 279 [52], 348 [495] oyer and terminer, 348 royal commissioners, 43 Vice-Admiralty, 188 ecclesiastical establishment, 327, 328, 371, 597. 605, 607-26, 657 enforcement of Orders in Council in, 342

768

GENERAL INDEX

Virginia ( C o n t i n u e d ) extension of English law to, 4 7 3 - 7 4 , 490-92, 493 Fairfax grant, 455 [ 2 3 3 ] Governor, see Argall, Capt. S a m u e l ; Culpeper, T h o m a s ; Fauquier, Francis; Gooch, William; Loudoun, Earl o f ; Spotswood, Alexander governor's commission, 6 1 1 governor's instructions, 78, 79, 80, 2 1 9 [ 2 3 ] , 233 [89, 9 2 ] , 2 5 9 - 6 1 , 3 7 1 , 606, 609, 6 1 4 15, 617 House of Burgesses, 6 1 1 [ 4 5 7 ] , 6 1 5 , 6 1 6 intracolonial appeals regulations appeals to assembly, 80 colonial acts, 2 6 0 - 6 1 , 4 1 ; instructions, 78, 79, 80, 2 1 9 [ 2 3 ] , 233 [89, 9 2 ] , 259-60, 2 6 1 instructions to regulate by colonial act, 79, 259-60 sui generis, 259 judges, see Blair, John; Dawson, William; Nelson, T h o m a s ; Nelson, William judicial practice, special verdicts employed, 415 judicial system, early conciliar control of, 41 legal status of, 470, 548 [ 1 1 9 ] legislative power in, 6 1 3 , 6 1 8 - 1 9 , 6 2 2 - 2 3 Parsons' Cause, 328, 597, 605, 607-26, 657 precedential effect of conciliar determinations in, 506 problem of entails in, 5 1 1 - 1 2 proposed restoration of company, 44 slaves, treated as real property, 504-6 tobacco chief commodity of, 607 Twopenny Acts, see Virginia, acts of 1 7 5 5 it 1 7 5 8 for regulating ministers' salaries vice-admiralty appeals, 188 see also Proprietary colonies; Royal colonies Virginia Company, 42, 43, 467 [ 6 ] Waddel, Robert, 3 9 1 , 3 9 2 [ 1 9 1 ] , 393, 394 [204], 4 1 0 - 1 1 Wade, Richard, 639 [ 5 8 1 ] Wadleigh, Thomas, 106 ( 1 9 7 ] , 1 1 8 [ 2 7 3 ] , 119 Wadsworth, James, 429, 430 [ 7 6 ] Wake, John, 196-97 Waldron, Richard, 1 1 7 , 1 1 8 [ 2 7 9 ] , 1 5 2 , 1 5 5 , 156, 157 f i 5 4 l Wales, 10, 47 [ 3 0 7 ] , 7 5 [ 2 4 ] , 88, 245, 4 2 0 - 2 1 , 469» 473 Walker, Fowler, counsel, 438 [ 1 3 1 ] Walker, Timothy, 234 [95] Walker, Dr. Walter, 63 [ 4 1 2 ) Walker, William, bankrupt, 336 Walker, William, extortioner, 205 [396, 3 9 7 ]

Walley, Abiel, 539 [69], 540, 5 4 1 Walmesley, Thomas, Justice of Common Picas, 467 [4] Walpole, Horace, 324, 634 [568] Walpole, Robert, Clerk of the Privy Council, 3 8 1 [ 1 4 4 ] , 498, 624 Walpole, Sir Robert, 546 [ 1 0 9 ] Walters, Robert, New York Vice-Admiralty Judge, 196 Wandall, Audrey, 1 5 9 [ 1 6 4 ] Wandall, Thomas, 1 5 9 [ 1 6 2 ] Wanton, John, Governor of Rhode Island, 453 [«3] Ward, Edward, Judge of Court of Admiralty on vice-admiralty appellate forum, 9 1 - 9 2 Warner, John, Jamaica Vice-Admiralty Court Judge, 194 Warner, Thomas, Attorney General of Antigua, 488 Warrington, Rev. Thomas, 620, 624-25 Warton, John, 193 Warwick (Rhode Island) boundary dispute, 1 2 2 - 2 6 Warwick, Earl of, 47 Watkins, Thomas, 487-89 Watson, Sir Francis, acting Governor of Jamaica, 94 Watson, Joseph, 168 [ 2 1 3 ] Wawequa, Mohegan Indian, 423 Way, John, solicitor, 322 [ 3 2 1 ] Weare, Nathaniel, 11 8 [ 2 7 9 ] , 1 1 9 , 120 [286] Wearg, Clement, Solicitor General on extension of acts of Parliament to Jamaica, 483 [68] on extension of common law to colonies, 548 [119] on Isle of Man appeals, 227 [67] on settlement of boundary disputes, 420 [8] Weaver, Thomas, collector of port of N e w York, 196-97 Weaver, Thomas, Solicitor General of N e w York, 299-300, 304 Wedderburn, Alexander, Attorney General employed as counsel, 294, 438 [ 1 3 1 ] , 623 [524] on nullification of Va. act of 1758, 6 1 3 Wells, Samuel, counsel, 4 5 1 Wells, William, 292 [ 1 3 3 ] Wenham, Thomas, 298, 299 [ 1 7 8 ] Wentworth, Benning, Governor of New Hampshire, 3 2 1 [ 3 1 2 ] , 607 [434], 626 [ 5 3 5 ] . 637 Wentworth, George, 638 [ 5 7 8 ] West, Richard, counsel to Board of Trade on Barbados act requiring special verdicts, 361-62

GENERAL INDEX on extension of English law to colonies, 483 [68], 514-15, 548 [ 1 1 9 ] on Pa. act for u l e of house, 629 on vice-admiralty appellate forum, 185-86 West Florida act disallowed, 597 [370] appeals regulations, 234 [94], 235 Chief Justice, tee Clifton, William courts, 200, 342, 4 1 ; enforcement of Orders in Council in, 342 Governor, see Johnstone, George governor's instructions, 234 [94]· 235, 4 ' 5 intracolonial appeals regulations, 234 [94], 415 intracolonial vice-admiralty appeals, 200 West India, 66 West Indies appeals regulations, 662 chancery appeals, 237 vice-admiralty appeals, 192 see also Antigua; Bahamas; Barbados; Bermuda; Jamaica; Leeward Islands; Nevis; St. Christopher; Dominica; Montserrat; St. Lucia; St Vincent West Jersey, see New Jersey Westminster II, Statute of, see Acts of Parliament, Statute 13 Edw. I, St. 1 (1285) Westmoreland, Earl of, 323 Whately, Thomas on nullification of Mass. act of 1766, 632 [560a] plan for colonial Stamp Act, 293 [138] Wheelright, John, 45, 157 [154 ] Whigs, 134 Whipple, Joseph, 336-37 Whitaker, Benjamin, Chief Justice of South Carolina, 577*78, 605 White, Rev. Alexander, 617-18, 620 Whitelocke, Bulstrode, Treasury Commissioner, 39 [252], 40 [254] Whittlesey, Elisha, 643 Whittlesey, Stephen, Mohegan guardian, 430 [76] Whitworth, Francis, Secretary of Barbados, 230 [75] "Whole process," meaning of, 291 Wiekes, John, Rhode Island Judge, 561 Widdrington, Sir Thomas, Treasury Commissioner, 39 [252], 40 [254] Wilbraham, Randle, counsel on colonial bills of credit, 604 [405] on power of Pa. assembly, 647 [617] Wilkinson, Benjamin, 513 Wilks, Francis, Connecticut agent, 310, 3 1 1 , 430 [80, 81, 82], 431 [85], 433 [95]. 577 [ 1 8 1 ] , 559. 560, 573 death, 574 [285]

769

Massachusetts agent, 331, 444 [164], 445 [165], 450 [206], 557 [ 1 8 1 ] , 570 [258] on extension of English law to colonies, 560 on Mass. law of intestacy, 563 Willard, Josiah, Judge of Mass. Court of Probates, 569 [253] Willes, Edward, counsel, 294, 623 [524] Willes, Edward, Solicitor General on legislative power in Mass., 633 [563] Willes, John, Attorney General employed as counsel, 294, 549 [126] on preceden tal effect of Orders in Council, 481 on settlement of boundary disputes, 420 [8] on settlement of Mass.-N.H. boundary, 445 Willes, John, Chief Justice of Common Pleas, 323-24, 325 [335], 375 [109], 377, 575 [288] on extension of acts of Parliament to Antigua, 489, 657 on overruling of demurrers, 380 Partridge's attempt to influence, 327, 452-53 William ΠΙ, King of England, 132, 133, 323, 427 [59] Williams, John, 325 Williams, Peere, tee Peere Williams, William Williams, Roger, 122, 124 Williamson, Sir Joseph, 95 [128], 367 [66] Willoughby, Lord, Governor of Barbados, 6668, 89 [92] Wilmington, Earl of, Lord President, 564 [223], 630 Wills, Statute of, tee Acts of Parliament, Statute 32 Hen. Vm, c. 1 (1540) Wilmot, Eardley, see Wilmot, John Eardley Wilmot, Henry, counsel on necessity of special verdict for appeal, 363 Wilmot, John Eardley, Chief Justice of Common Pleas, 324, 635 on extension of anti-Catholic laws to Grenada, 494-95 on nullification of Mass. a y of pardon and indemnity, 633 [563] on power of RJ. assembly to grant new trials, 650-51 Wimbledon, Lord, 30 [186, 187] Winchester, Bishop of, 24 Windebank, Sir Francis, Secretary of State, 31 [193. 195] Winslow, Edward, Massachusetts agent, 47 Winter, John, 50-51 Winthrop, Fitz-John, 140 [47], 142 [54], 145 Γ65], 149 [93] Winthrop, John, Governor of Connecticut, 52 [333], 142, 424 Winthrop, John, Governor of Massachusetts, 48 Winthrop, John, intestate, 149 [93]

770

GENERAL INDEX

Winthrop, John, litigant, 160-61, 3 5 5 [ 1 6 ] , 538-51, 552, 554 [ 1 5 3 ] , 555-59. 569 [ 2 5 1 ] , 572 [273] Winthrop, Wait, 538, 539, 549 Wiseman, Dr. Robert, King's Advocate, 63 [408] Witham, Sir John, Lieut.-Governor of Barbados, 1 1 2 [ 2 3 1 ] , 1 3 1 [ 3 7 1 ] , 471 Wood, Anthony, 476 [ 3 2 ] Wood, John, Governor of Isle of Man, 269, 291 Woodbridge, Dudley, Barbados Vice-admiralty Court Judge, 187 [304] Woodbridge, William, 496 Woodman, John, 1 1 7 [266] Woods reservations, 188, 328-29, 360, 663 Wright, Sir James, Governor of Georgia on reform of appeals regulations, 224-25 Writ of appeal allowed by Colden, 392 Writ of error colonial practice in Mass., 375-77 in N.Y., 391, 393» 395, 396-98 opinion of Board of Trade, 409 opinion of Colden, 400-401, 407 [248] opinion of N.Y. council, 402-5 opinion of Ryder and Murray, 384-85 distinguished from appeal, 109-11, 2 7 2 [ 1 ] , 393, 395, 397-98, 400, 401, 402-5, 405-6 English practice award of costs, 3 1 8 award of damages, 320-21 followed in Committee, 276 in criminal causes, h i , 2 1 5 nature of review, 3 5 3 , 654 not followed in colonial criminal appeals, 111-12, 297, 306 form in South Carolina, 388 [ 1 7 3 ] history of, according to Colden, 400-401 not allowable in Jamaica criminal cause, 241 not allowed from colonial courts, 2 7 2 [ 1 ] Writ of inhibition employed by Colden, 392 Writ of review employed in Conn., 573 employed in Mass., 3 7 3 , 3 7 5 employed in N.H., 503 employed in R.I., 5 1 3 Wrote, Samuel, 43 [ 2 7 3 ] Wythe, George, counsel on interpretation of Va. act on slaves, 506 Yale, David, 45 [ 2 9 1 ] Yeamans, John, Antigua agent, 274 [ 7 ] Yeates, Jasper, Pennsylvania judge, 243 [ 1 4 6 ] Yonge, Francis, South Carolina agent, 188 [3°9l

York, Archbishop of, 327, 545 [ 1 0 9 ] York, Duke of, see James, Duke of York York County (Massachusetts) wood cutting controversy, 329 Yorke, Charles, Attorney and Solicitor General employed as counsel, 294, 438 [ 1 3 1 ] , 623 [524] on civil government of Quebec, 494 [ 1 1 5 ] on controversy of proprietors of Bow, 234 [96] on effect of decree in Richardson v. Hamilton, 630 on extension of act of Parliament to Va., 493 on extension of Navigation Acts to Dominica, 498 on extension of Navigation Acts to Guadeloupe, 499 on grounds of dismissal of Camm's appeal, 624 on interpretation of governors' instructions of 1753, 409-10, 4 1 1 , 414 on interpretation of Virginia act on slaves, 505 on legality of commitment of Smith and Moore, 648 [620] on Mass. legislative divorces, 584 on nullification of colonial legislation, 628, 629 on precedental effect of Orders in Council in Jersey, 481 Yorke, Philip, Attorney and Solicitor General employed as counsel, 294, 545 on appeal as means of delimiting vice-admiralty jurisdicdon, 5 1 5 on conciliar interposition before final judgment below, 207 on extension of acts of Parliament to Jamaica, 483 [68] on extension of common law to colonies, 548 [ 1 1 9 ] on Isle of Man appeals, 227 [ 6 7 ] on legal effect of treaties, 531 [ 3 5 ] on legislative powers under Conn, charter, 558 on nonappellate judicial activity of council, 204, 419 on operation in colonies of English fines and recoveries, 574 [284], 589 on repeal of confirmed colonial acts, 571 on royal prerogative in colonies, 2 5 1 on settlement of boundary disputes, 419-20 see also Hardwicke, Earl of Zachery, Daniel, 193 Zouch, Dr. Richard, Judge of High Court of Admiralty, 63 [ 4 1 2 ] Zouch, Lord, 29 [ 1 8 3 ]

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