Appeals from colonial courts to the king in council, with especial reference to Rhode Island

Papers from the Historical Seminary
of Brown University

Edited by J. FRANKLIN JAMESON, Ph. D., Professor of History

VII

APPEALS FROM COLONIAL COURTS TO
THE KING IN COUNCIL, WITH ESPECIAL
REFERENCE TO RHODE ISLAND

BY

HAROLD D. HAZELTINE, A. B.

REPRINTED FROM THE REPORTS OF THE
AMERICAN HISTORICAL ASSOCIATION

PROVIDENCE, R. I.
1896

XVIII.-APPEALS FROM COLONIAL COURTS TO THE KING IN
COUNCIL, WITH ESPECIAL REFERENCE TO RHODE ISLAND.

By HAROLD D. HAZELTINE.

American history presents no more important or absorbing
subject of consideration than the origin and development of
our colonial institutions. While the record of our social and
political achievements is fascinating and instructive, the re
sult of recent investigations has added a new interest to the
study of our institutional history; for we now appreciate more
fully than ever that the systems of society and government
developing in the colonies finally came to possess a broader
usefulness in the constitutional life of the United States.

We look to England for the origin of the essential features
in our system of justice, and the thought of the English privy
council as the predecessor of our highest federal tribunal
has, in general terms, been entertained and stated. Yet it is
believed that this interesting element in our constitutional
development has never been fully presented to the attention
of historical scholars. So far as the writer knows, no one has
ever made a thorough and systematic investigation of colonial
appeals to the King in council. The importance, however, of
the practice of appealing from colonial courts to that tribunal
as a court of last resort is obvious. This practice taught the
colonists to look more and more to a supreme tribunal for
the adjudication of their legal cases, and to accept as law the
judicial opinions of that body. It accustomed them to regard
the courts of the different colonies as but parts ot a judicial
system which found a unifying principle in a court of final
appeal. In short, this practice prepared them for the erection
of a new court, with functions similar to those of the council,
when the time came to organize a government for themselves.
During the development of this practice, moreover, the impor
tant doctrine of American jurisprudence which grants to the
judiciary the power of setting aside an act of the legislature

299

300 AMERICAN HISTORICAL ASSOCIATION.

as being- repugnant to the fundamental law of the land received
sanction from England in the privy council's decision of a cer
tain American case.1

The object of the present paper will be to present the result
of recent researches by the writer in regard to this neglected
phase of our constitutional history. While it has been impos
sible for him, up to the present time, to investigate the subject
in detail in more than one colony, it is hoped that the history
of appeals from the illustrative colony of Rhode Island, pre
faced by a brief survey of appeals from the British colonies in
general prior to the American Revolution, and supplemented
by an account of the procedure of the King in council in such
cases, will give some conception of the practice in its relations
to English and American institutions.

Judge Story has said2 that "the essential criterion of appel
late jurisdiction is that it revises and corrects the proceedings
in a cause already instituted, and does not create that cause.'7
The doctrine thus clearly stated by this eminent American
jurist is essentially the same as that held by the privy council
in regard to its own jurisdiction over the English colonial
courts. In the very first order in council regulating appeals
from a British colony3 it was decreed that "no appeal in any
cause or matter, great or small, be permitted or allowed before
the same matter be fully examined and ended by definitive
sentence or other judgment having the force or effect of a
sentence definitive." While the King in council exercised an
original jurisdiction within certain limits, and had powers
other than judicial, such as those exercised in the administra
tion of the political affairs of the colonies, the present inquiry
is concerned only with matters pertaining to this appellate
authority over the judiciary of foreign possessions of the
Crown; an appeal, as the term is here used, being a legal pro
ceeding by which a case was removed from a colonial court to
the King in council for final adjudication, after a certain defini
tive judgment or judgments had been passed upon it by one
or more of the colonial tribunals.

1 Winthrop v. Lechmere, Connecticut, 1727-28.

2 Commentaries on the Constitution of the United States, § 1761.

3 Order in council regulating appeals from Jersey, May 13, 1572. See
Macqueen's Appellate Jurisdiction of the House of Lords and Privy Coun
cil, p. 735.

APPEALS FROM COLONIAL COURTS HAZELTINE. 301

It is well to remember, in this connection, that in much of
the documentary material regarding the relations between the
colonies and the home Government the word "appeal" is not
always used in this legal sense. The word refers in some
instances to what is more properly designated as a complaint,
or a form of procedure by which colonists presented to the
attention of the Crown certain accusations against governors
or other colonial officials.1 It refers, in other instances, to
what is more correctly entitled a petition, or a proceeding
which was more comprehensive and customary than a simple
complaint. Even in certain official decrees of the King in
council the terms appear to be confused, regular judicial
appeals, legally granted by colonial courts, being referred to
as "petitions of appeal."2

While, however, complaints and petitions, sometimes desig
nated as appeals, were, as a usual thing, political and not judi
cial in their character, the English right of petition was oc
casionally used by the colonists in judicial proceedings.3 In
some cases of refusal on the part of colonial courts to grant
appeals to England, the parties aggrieved petitioned the King
in council to allow such appeals; and acting as the tribunal
with supreme authority over all colonial courts, the King and
council took these petitions into their consideration, and either
allowed or refused the appeal to their judgment. The right
of petition was so used in the famous American cases of Wiu-
throp v. Lechmere and Phillips v. Savage.4 On petition, also,
the appellee sometimes secured the dismissal of an appeal for
nonprosecution, with the payment of costs by the appellant.5
In still other cases petition secured relief from the obstruction
of justice in colonial courts.6

The right of appeal to the Crown in judicial proceedings
was an established principle of English constitutional law
during the period now under consideration, and was clearly
expounded by the privy council itself. In the order in council

1 Colonial Records of North Carolina, II, p. 161-163.

- Order in council, June 12, 1739, deciding Rhode Island case of Cogges-
hall v. Coggeshall.

3 Colonial Records of North Carolina, II, p. 161.

4See Chalmers's Opinions, II, p. 227, for reference to petition of Peter
Van Bell, of Nevis, in 1704.

5 Order in council, December 21, 1738, deciding Rhode Island case of
Martin v. Gibbs.

'5Macqueen, pp. 801, 805, 806.

302 AMERICAN HISTORICAL ASSOCIATION.

of March 9, 1698, the governor and company of Connecticut
were directed to take notice that it was u the inherent right of
His Majesty to receive and determine appeals from all His
Majesty's colonies in America; and that they govern them
selves accordingly." In the famous privy council case of
Christian v. Corren, appealed from the Isle of Man in 1716,
this doctrine was more fully stated, it being held, also, that
the right of appeal applied to both subject and sovereign. It
appears, from the official record of this case,1 that the Earl of
Derby, King of the Isle of Man, made a decree concerning
the lands in that island, and that the person against whom
this decree was issued appealed to the privy council. The
principal question at issue was whether an appeal should lie
before the King in council, there being no reservation, in the
grant made of the Isle of Man by the Crown, of the subject's
right of appeal to the Crown. It was urged by the counsel
for the appellant "that it appearing, in this case, that H. 4
had granted the Isle of Man to the Earl of Derby's ancestors,
to hold by homage and other services, though there was no
reservation of the subject's right of appeal to the Crown; yet
this liberty was plainly implied. For that such liberty of
appeal lay in all cases where there was a tenure of the Crown;
and it was the right of the subjects to appeal to the sovereign
to redress a wrong done to them in any court of justice; nay,
if there had been any express words in the grant to exclude
appeals, they had been void; because the subjects had an
inherent right, inseparable from them as subjects, to apply to
the Crown for justice. And on the other hand," the counsel
further argued, " the King, as the fountain of justice, had an
inherent right, inseparable from the Crown, to distribute justice
among his subjects; and if this were a right in the subjects,
no grant could deprive them of it; the consequence of which
would be, that in all such cases, viz, where there were words
exclusive of such right of appeal, the King would be construed
to be deceived and his grant void : also precedents were cited
in point." Lord Chief Justice Parker, who assisted at council
upon this occasion, held that the King in council had neces
sarily a jurisdiction in this case, in order to prevent a failure
of justice. Upon the weight of argument thus presented, the
council decided that an appeal lay before them, and gave a

Peere Williams' Reports, I, p. 329.

APPEALS FROM COLONIAL COURTS HAZELTINE. 303

judgment in favor of the appellant. Furthermore, the privy
council instructions by which the governor of a colony was
restrained from admitting appeals to the King in council, when
the matter or sum in controversy was below a certain pre
scribed value, were considered as restraints upon the governor
alone, and not as precluding His Majesty from entertaining
appeals in cases of any value, where he should deem it advis
able;1 and this royal prerogative, or right, was often thus
exercised by the King in council.2

The exercise of the right of appeal secured important advan
tages, both to the colonist and the Crown. To the colonist it
provided a means of relief from the arbitrary proceedings of
colonial courts, which were often disposed to allow political or
personal views and prejudices more weight than justice and
law in the formation of their judicial opinions. It was bene
ficial to the Crown for the reasons that otherwise the law
designed for the inferior dominion might be considerably
changed without the assent of the superior dominion, and that
judgments might be given in the courts of the inferior domin
ion to the disadvantage or lessening of the superiority of the
Crown, or to making the superiority of the King only and not
of the Crown.3

Believing that the right of appeal to the Crown as an essen
tial element of English jurisprudence has been fully substan
tiated by the facts thus far presented in this paper, we shall
proceed now to consider the conditions under which the privy
council came to assist the King in the adjudication of these
colonial cases. Two theories have been advanced in regard to
the origin of this appellate jurisdiction of the council.

The first theory is the one set forth by Governor Pownall,
in his treatise on the administration of the British colonies in
America. Governor Pownall asserts4 in this work that at the
time of settling the American colonies there was no precedent
of a judicatory besides those within the realm, except in the
cases of Guernsey and Jersey, which were remnants of the
duchy of Normandy, and not united to the realm. According
to the custom of Normandy, appeals lay to the Duke in council ;
and on this ground appeals lay from the judicatories of these

1 Burge's Colonial Law, I, Introd., p. Ivii.

2 Chalmers's Opinions, II, p. 177.

3 Story's Commentaries, I, § 175.

4 Pownall on the Colonies, second edition, p. 82.

304 AMERICAN HISTORICAL ASSOCIATION.

islands to the King of England, as Duke in council ; and on
this precedent also followed appeals from the courts of the
American colonies to the King in council. The theory thus
adduced by Governor Pownall is accepted by Burge,1 Millar,
and Clarke; Mr. Burge, in his Colonial Law, affirming that
the opinion presented by Governor Pownall " receives confirma
tion from the practice which prevailed of making the reference
of appeals from Guernsey and Jersey to a committee of the
privy council by a distinct and separate order from that by
which appeals from the plantations were referred."

Macqueen, in The Appellate Jurisdiction of the House of
Lords and Privy Council,2 states that Governor Pownall must
be in error in asserting that at the time of settling the Amer
ican colonies there was no precedent, except in the cases of
Guernsey and Jersey, of a tribunal in England invested with
jurisdiction over the foreign possessions of that country; for
of the two classes of parliamentary triers one was especially
assigned to take cognizance of petitions, not only from Guern
sey and Jersey, but from all of the other continental posses
sions of England — Gascony, Aquitaine, Guieune, et les autres
terres et pays de par la mer et des Isles. Furthermore, Gover
nor Pownall's assertion that Guernsey and Jersey continued
to be remnants of the duchy of Normandy is not substantiated
by proof or probability. From the history of those islands it
would rather appear that they have been attached and faithful
to England ever since the date of the Norman conquest. In
his opinion, also, PowiialFs belief that appeals were brought
from the Channel Islands to the King in council, by analogy
to the Norman practice of appealing to the Duke in council,
li seems alike unnecessary and unwarrantable. * * * From
the Continues de Normandie it appears that an appeal lay to
the court of Parliament. An appeal to the 'Duke in council7
might well have meant, and most probably did mean, the Par
liament; which, according to the feudal policy, was * * *
always the last resort of litigants."

Macqueen's theory, indeed, is that Parliament itself was
previously the " supreme and ultimate jurisdiction" of Jersey
and Guernsey; that the ancient practice of England was to
redress the grievances of the Channel Islands, not in the
privy council, but in the court of Parliament. To prove that

1 Colonial Law, I, Introd., p.xlvi.

2 Pages 682-686.

I

APPEALS FROM COLONIAL COURTS HAZELTINE. 305

Parliament dispensed justice to these islands, he cites a peti
tion "in Parliament©," which was sent over from the "poor
inhabitants of the isles/' in 18 Edward II (A. D. 1324-25),
addressed to the King and his council.1 The council here
referred to, Macqueen affirms, was the King's magnum con-
dUum, or Parliament, as the whole proceeding was parliamen
tary, and registered as such in the liolls of Parliament. It
appears from this petition, moreover, and the response made to
it, that "the ancient method of redressing errors complained
of by the inhabitants of the Channel Islands was by commis
sion, issued in Parliament, and addressed either to persons of
local authority, or to certain of the King's judges, sent thither
as justices itinerant; and when * * * the parties con
tinued still to be dissatisfied, the highest remedy of all was at
last afforded them, namely, a writ of error from chancery,
returnable before the King in the court of Parliament. It
may, indeed, be said that the response to the" above-mentioned
" petition does not show that the errors complained of were
necessarily to be corrected in the court of Parliament; the
terms of the order being merely ' to bring the errors before
the King,' without more. But the material thing is, that the
petition is addressed to the King and his council 4n parlia-
mento;' and that the order for redress issues from the Parlia
ment. It is probable, too (though that is a point less material
to the present argument), that the writ of error granted to the
islanders would have been made returnable before the King in
Parliament, in the usual way, no other court being mentioned
in the response."2 It appears that this system of revision by
parliamentary or royal commissioners, with an ultimate appeal
to the King in his magnum concilium, continued until it
became either impossible or at least very difficult for the
islanders to obtain redress for grievances by that procedure.
Finally came the intermissions of Parliament which gave rise
to the erection of the court of exchequer chamber for the de
termination of writs of error from the court of Queen's bench;
and it was these intermissions that occasioned the establish
ment of a tribunal, in place of the court of Parliament, for

1 For accounts of the King's various councils, see Crabb's History of
English Law, pp. 217, 218; and Bowyer's Commentaries on the Constitu
tional Law of England, pp. 123-129.

2 See further, Macqueen, p. 685, note (d).

H. Mis. 91 20

306 AMERICAN HISTORICAL ASSOCIATION.

the adjudication of appeals from tlie Channel Islands. This
snbstitutionary tribunal was the privy council.

Such are the two theories, arid in all justice to the weight
of evidence produced by Governor Pownall and Mr. Macqueen,
the theory advanced by the latter must be accepted as the true
interpretation of the origin of this most interesting court of
appeals. We are now prepared to trace the general history of
appeals to the King in his privy council. In this way we shall
see clearly that the rise of the practice here in the New World
was due in part, it is true, to local causes, but in a greater
degree to the general doctrine that such a practice was the
natural outgrowth of the rights and liberties of all British
subjects.

The privy council began the exercise of its functions as a
court of review with the island of Jersey.1 We are assured
in a letter received from the greffier of Jersey by Mr. Eeeve,
of the council office, that appeals were first granted to the
privy council from that island in the reign of Henry VIII,2
or between 1509 and 1547. In the official Eecords of the Coun
cil, however, the first indication of an appellate jurisdiction
is the order in council of May 13, 1572, which provides for
appeals from Jersey. It appears that Jersey laws in regard
to appeals were in much need of reformation, and on the peti
tion of Helier de Carteret, Lord of St. Owne, and one of the
jurats of justice, the privy council issued this order. The
terms of the order were —

That no appeal be admitted or allowed from any sentence or judgment
in any matter or cause not exceeding the value or sum of seven pounds
sterling of current English money; that no appeal in any cause or matter,
great or small, be permitted or allowed before the same matter be fully
examined and ended by definitive sentence, or other judgment having the
force or effect to a sentence definitive; that every appeal shall be pre
sented within three months next ensuing the sentence or judgment given
therein, except there be in the cause a lett or impediment to be proved
before their lordships, being the judges of appeals, and by their lordships
allowed; that no appeal be hereafter received without the coppie, as well
as the sentence or judgment, as also of the whole greffe of the cause, closed
together under the seal of the isle. And that there be no lett or hindrance
to the appellants in hearing thereof, it is ordered by the said lords that
the bailliff and jurats of the isle, from whom the appeal shall be made,
shall upon request made to them deliver or cause to be delivered to the
said parties appellants the said coppie within eight days after such request.

1 Macqueen, p. 735.
2Ib., p. 686.

APPEALS FROM COLONIAL COURTS HAZELTINE. 307

The only regulation in regard to time contained in this order
appears to be that the act of the court below, or official tran
script of the decree appealed from, must be deposited in the
privy council office within three months from the date of the
decree. According to this order, also, an appeal might be car
ried to the King in council in a matter of as small value as £7.

Undoubtedly suits of a very trivial nature were actually
appealed to the council under this latter regulation ; for by
an order of May 19, 1671, it was decreed "that no appeal for
movable goods or personal estate be henceforth allowed unless
it be of the value of three hundred livres tournois1 per annum;
nor for inheritance or other real estate, unless of the value of
five livres tournois per annum."

A further order in regard to appeals from Jersey was issued
by the King in council on August 28, 1580. This declares
"that it shall not be lawful to appeal in any cause criminal or
of correction, nor from the execution of any order taken in the
Court of Chief Pleas, nor in Cries of Haro."

While the writer has been unable to find any privy council
regulations in regard to appeals from Guernsey, it is probable
that such cases were subject to the same or similar rules as
those from Jersey; for these two islands were for a long time
the sole colonial possession of the Crown, and were classed
together as the Channel Isles.

Jersey and Guernsey having no' representative in Parlia
ment, their interests seemed of little concern to that body or
to the nation at large; and, as we have already remarked,
Parliament finally came to be exceedingly lax in the dispensa
tion of justice to these islands. Their inhabitants, therefore,
welcomed the change in England's judicial system by which
the adjudication of their appeals was transferred from the
court of Parliament to the privy council. But Parliament
itself was not so willing to grant to the privy council, as an
independent tribunal of justice, the jurisdiction of appeals
from the colonies. By an act of the Long Parliament the court
of requests and the Star Chamber2 were abolished, and it was
declared that neither His Majesty nor his privy council have,
or ought to have, any jurisdiction by English bill, petition,
articles, libel, or any other arbitrary way whatsoever upon the

'A livre touruois was equivalent to a modern franc, or 19 cents.
2 Both of these courts were composed of privy councilors. See Bow-
yer's Commentaries, p. 126.

308 AMERICAN HISTORICAL ASSOCIATION.

estates of tlie subject. Yet notwithstanding this action by
Parliament, the separate and independent jurisdiction that
the privy council soon actually possessed was gradually ex
tended to other foreign possessions of the Crown, until at last
the council's ancient allegiance to the court of Parliament was
obsolete and forgotten.1

The general appeal regulations of the King and council ap
plied to the American colonies, including Ehode Island, and
are thus of special interest and importance to us in the pres
ent inquiry.

The first of these general regulations appears to be an order
in council of 1683. The records state that 011 January 23 of
that year it was —

Ordered by his Majesty in Councill, that no appeals be for the future
admitted at this Board from any of his Majesties fforeign plantations,
unless there be sufficient security first given by the appellants, as well at
this Board as in the respective plantations, to prosecute their appeals eifec-
tually and to stand the award of his Majesty in councill thereupon.

The order specifies no definite sum as necessary for such
security, but the appellant in the case of Cooke v. Saintlo,
appealed from the island of Nevis in 168G, gave security in
England in the sum of £1,000.2

In 1689 colonial governors were directed by their instruc
tions not to allow any appeal to be made to the King in coun
cil unless the estate or other matter in question amount to
the value of £500.3 This regulation prevented an inspection
into the conduct of governors and courts in all cases of a less
value than £500, and thus gave them an ultimate jurisdiction
in practically all of the litigation of the day. It is estimated,
indeed, that inasmuch as most of the suits in the colonies at
that time were in regard to commerce, not one in fifty was of
the value of £500. In many cases, also, where the governors,
according to these instructions, ought to have allowed appeals
they frequently refused them, on the ground that the land,
estate, or negro slaves sued for were not of the required value,
although it was evident that they were worth much more. It
was this custom of refusing an appeal in cases where it should
have been granted according to the true intent of the instruc
tions that largely occasioned the practice, already referred to,
of petitioning the King in council for permission to appeal.

J Macqueen, p. 686.

2 Order in council, October 27, 1686.

3 Colonial Records of North Carolina, II, p. 161.

APPEALS FROM COLONIAL COURTS HAZELT1NE. 309

A practice iii the colony with whose history we are especially
concerned in this essay occasioned the passage of the next
important general regulation of appeals. It often happened
in cases of appeal to the King in council from the decisions
of the Khode Island assembly, as a court of error, that these
decisions were reversed, and that in the meantime execution
had been granted by the assembly, although no security was
given by the appellee to make restitution in case of reversal.1
The subject was brought to the attention of the privy council,
and action taken on July 5, 1720. On the 28th of the same
month instructions were sent to all of the colonies to suspend
execution in such cases until the iinal issue, unless adequate
security was given by the appellee.

The instructions of 1746 2 form, perhaps, the most important
of all the English regulations of appeals prior to 1776. Accord
ing to these instructions, in all the British colonies, except
those in which the courts were constituted by charters or
orders in council, the governors were directed to allow appeals
to His Majesty in council. The forty-seventh instruction pro
vides for the appeal to the governor and council from the
courts of law in the colonies, and directs that if either party
shall be dissatisfied with the judgment of that tribunal he
may then appeal to the King in council. This ultimate appeal,
however, was subject to the further provisions that —

the sum or value so appealed for unto us exceed five hundred pounds
sterling, and that such appeal be made within fourteen days after sen
tence, and good security given by the appellant that he will effectually
prosecute the same, and answer the condemnation, as also to pay such costs
and damages as shall be awarded by us, in case the sentence of the gov
ernor and council be affirmed: Provided nevertheless, where the matter in
question relates to the taking or demanding any duty payable to us, or to
any fee of office, or annual rent, or any such like matter or thing, where
the right in future may be bound; in all such cases you are to admit the
appeal to us in our privy council, though the immediate sum or value
appealed from be of less value. And it is our further will and pleasure
that in all cases where by your instructions you are to admit appeals to
us in our privy council, execution be suspended until the final deter
mination of such appeal, unless good and sufficient security be given to
the appellant to make ample restitution of all the appellant shall have
lost by means of such judgment or decree, in case upon the determina
tion of such appeal such judgment or decree should be reversed, and resti
tution awarded to the appellant.

1 Arnold's History of Rhode Island, II, p. 83.

2 February 4, 1746.

310 AMERICAN HISTORICAL ASSOCIATION.

It will be noticed that this legislation formulates anew the
instructions issued to governors in 1089 and the order in council
of July 28, 1726. While, however, the instructions of 1689
provide simply that an appeal is to be allowed where the estate
or other matter in question amounts to the value of £500, the
instructions of 1746 further stipulate that in all cases relating
to duties payable to the Crown, fees of office, annual rents, or
any such matter, an appeal shall be allowed, even though the
amount involved be less than £500. It will be observed,
further, that while the order in council of 1572, regulating
appeals from Jersey, requires that every such appeal shall be
presented within three months next ensuing the sentence or
judgment given in the island court, unless for good reason the
privy council grant an extension of time, the forty-seventh in
struction provides that appeals be made within fourteen days
after sentence. These instructions of 1746 applied to appeals
from the governor and council as a court of error, but under
their provisions, inasmuch as there was no other instruction,
the governor also admitted appeals from his decisions as
chancellor and ordinary.1

We must now pass on to the special consideration of appeals
from the British colonies in America.

Among these possessions of the Crown were the islands of
Barbados and Nevis. According to the governor's instruc
tions, appeals from all tribunals in Barbados, including the
court of exchequer, were first heard by the governor and council
as a court of chancery; and if any party to a suit was dissatis
fied with a decision of this court he then had the privilege of
appealing to the King in council.2 Appeals from the president
and council as a court of chancery in Nevis were also heard
by the King in council; but appeals from the president and
council as a court of admiralty, with authority derived from
the admiralty of England, were heard by that court and not
by the King in council.3

Of the instruments of government granted to the thirteen
colonies which subsequently formed the United States of
America, the first containing reference to appellate proceed
ings in England is the Carolina charter of 1663. This docu
ment stipulates that "the inhabitants of the said Province,

'Surge's Colonial Law, I, Introd., p. xlviii.
2 Chalmers's Opinions, II, p. 175, sec. 16.
3Ib., II, p. 227, sec. 12.

APPEALS FROM COLONIAL COURTS HAZELTINE. 311

nor any of them, shall at any time hereafter be compelled or
compellable, or be anyways 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." The Carolina charter of
1665 contains the same provision. It is certainly true that the
wording in these charters is so general that we may well ques
tion whether appeals to the King in council were included
within their provisions. Yet by 1663 the privy council had
an independent jurisdiction in colonial cases, and it is quite
as safe to assume that appeals to this tribunal were among
the causes to be heard in England as that reference was made
exclusively to appellate proceedings in other English courts.
In the New York patent of 1664, however, we discover direct
reference to appeals. The instrument states that Charles II
gives and grants unto James, Duke of York, "full and abso
lute power and authority to correct punish pardon governe
and rule * * * saving and reserving to us our heirs
and successors the receiving hearing and determining of the
appeal or appeals of all or any such person or persons, of in or
belonging to the territoryes or islands aforesaid in or touching
any judgment or sentence to Be there made or given." Prac
tically the same provision is found in the confirmatory patent
of 1674. While these Xew York instruments refer, in general
terms, to appeals "to us our heires and successors," there can
be no doubt that appellate proceedings before the King and
his privy council were intended by the framers.1

The New Hampshire commission of 1679 2 is apparently the
first colonial instrument of government containing definite and
explicit provisions in regard to appeals to the privy council.
The commission confers both executive and judicial powers
on the president and council, appointed by the Crown, and
further recites that —

notwithstanding it is Our will and pleasure, and so we do hereby expressly
declare, that it shall and may be lawfull from time to time to and for all
and every person and persons, who shall think himself or themselves
aggrieved by any sentence, judgm* or decree pronounced, given or made
(as aforsd) in, about or concerning the title of any land, or other reall

1 See Story's Commentaries, I, pp. 72, 74.

-This commission passed the great seal September 18, 1679, but did not
go into effect until the year following.

312 AMERICAN HISTORICAL ASSOCIATION.

estate, or in any personal! action, or suit above the value of 50' and not
under, to appeal from said Judging Sentence and Decree unto us, Our heirs
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 decree. And our further will and pleasure is, and so do we hereby
declare; That in all criminall cases, where the punishm* to be inllicted on
the offenders shall extend to loss of life or limb (the case of willfull mur
der excepted). the psn. convicted shall either be sent over into this Our
Kingdom of Engd with a true state of his case and conviction ; or execu
tion shall be respited until the case shall be here presented unto us, our
heirs and successors, in Our and their Privie Councell, and orders sent and
returned therein.

The charter granted to William Penu iii 1681 for the govern
ment of Pennsylvania contains practically the same appeal
provision that we found in the New York patents. It author
izes the proprietary to establish courts of justice, " Saving and
reserving to Us, Our heirs and Successors, the receiving, heare-
iug, and determining of the appeale and appeales of all or any
Person or Persons, of, in, or belonging to the Territories afore
said, or touching any Judgment to bee there made or given." As
the New Hampshire commission, written two years prior to this,
or in 1679, contains the definite statement that appeals from
that colony shall be "unto us, Our heirs and successors, and
our and their Privie Councell," appeals, not to the King alone,
but to the King in council, were unquestionably intended by
the Pennsylvania charter. The fact, moreover, that the cus
tomary expression, uto us, our heirs and successors," is found
in a colonial instrument issued subsequently to the date of the
carefully worded New Hampshire commission of 1679 is further
proof that the framers of the New York patents provided in
those instruments for appeals to the King in his privy council.

The commission issued to Sir Edmund Andros in 1686 for
the government of New England contains, among other in
structions, the following in regard to appeals:

And we do further by these presents will and require you, to permit
appeals to be made, in cases of error, from our Courts in our said territory
ind dominion of New England, unto our Governor and Council in civil
causes; provided the value appealed for, do exceed the sum of one hun
dred pounds sterling, and that security be first duly given by the appel
lant, to answer such charges as shall be awarded in case the first sentence
shall be affirmed. And whereas we judge it necessary, that all our sub
jects may have liberty to appeal to our Royal person, in cases that may
require the same, our will and pleasure is, that if either party shall not
rest satisfied with the judgment or sentence of our Governor and Coun-

APPEALS FROM COLONIAL COURTS HAZELTINE. 313

cil, they may then appeal unto us in our Privy Council, provided the
matter in difference exceed the real value and sum of three hundred
pounds sterling; and that such appeals be made within one fortnight
after sentence; and that security he likewise given by the appelant, to
answer such charges as shall he awarded in case the sentence of the
Governor and Council shall he confirmed, and provided also, that execu
tion be not suspended by reason of any such appeal unto us.

The Massachusetts charter of 1C91 contains similar provi
sions. It stipulates as follows:

And whereas Wee judge it necessary that all our Subjects should have
liberty to Appeale to us our heires and Successors in Cases that may
deserve the same Wee doe by these presents Ordaiue that incase either
party shall not rest satisfied with the Judgement or Sentence of any Judi-
catories or Courts within our said Province or Territory in any Personall
Accoii wherein the matter in difference doth exceed the value of three
hundred Pounds Sterling that then he or they may appeale to us Our
heirs and Successors in our or their Privy Council Provided such Appeale
be made within Fourteen dayes after the Sentence or Judgement given and
that before such Appeale be allowed Security be given by the party or
parties appealing in the value of the matter in Difference to pay or Answer
the Debt or Damages for the which Judgement or Sentence is given With
such Costs and Damages as shall be Awarded by us Our Heires or Successors
incase the Judgement or Sentence be affirmed. And Provided alsoe that no
Execution shall be stayd or suspended by reason of such Appeale unto
us our Heires and Successors in our or their Privy Councill soe as the party
Sueing or takeing out Execution doe in the like manner give Security to
the value of the matter in difference to make Restitucion in Case the said
Judgment or Sentence be reversed or aniiul'd upon the said Appeale.

Such are the actual appeal provisions in the organic laws of
the colonies. While direct reference to appeals is not to be
found in several of the instruments, the fact that all of the
charters, with one exception,1 contain a provision that the
inhabitants of the colonies and their children shall be deemed
British subjects, and entitled to all the liberties and immunities
thereof, makes it clear that the English government designed
that appeals should be allowed to the privy council from all of
the charter colonies; and it is exceeding probable that appeals
were also allowed from other colonies than those under char
ters, for all of the colonists enjoyed the rights and liberties of
British-born subjects, and, as we have already observed in an

1 Pennsylvania charter of 1681. Judge Story has drawn attention to the
fact that Chalmers, in Annals, I, pp. 639, 658, observes that the clause
was wholly unnecessary in this charter, as the allegiance to the Crown
was reserved; and the common law thence inferred, that all of the inhabit
ants were subjects, and, of course, were entitled to all the privileges of
Englishmen.

314 AMERICAN HISTORICAL ASSOCIATION.

earlier part of the present discussion, the right of appeal was
one of the most fundamental in English constitutional law.
But we have the authority of distinguished jurists on this
point. Blackstoue, in speaking of the charter colonies, affirms1
that they had courts of justice of their own, from whose deci
sion an appeal lay to the King in council; and Judge Story
asserts 2 that appeals lay to that tribunal, not only from the
highest courts of judicature in the charter governments, but
from those in all the colonies.

That the right of the King and council to exercise an appel
late jurisdiction over the colonial courts in America was not
yielded without a struggle on the part of colonial governments
is evident from historical events subsequent to 1680 5 and to
these events we must now briefly refer.

Pitkin, in his Political and Civil History of the United
States, is authority for the statements3 that the Crown did not
interfere in the judicial proceedings of the colonies, or claim a
controlling power over their judicial tribunals, until about
1680; that prior to this period the general assemblies, in most
of the colonies, were the tribunals of last resort, in all civil
causes; but that at that time the King and council claimed the
right of receiving and hearing appeals from the colonial courts,
in private suits. There is strong evidence, however, that the
King and council claimed the right of receiving and hearing
appeals from the colonies several years prior to 1680. The
New York patents of 1664 and 1674, and the New Hampshire
commission of 1679, all contain provisions with respect to
appeals, But while it is not true that the Crown did not claim
a controlling power over colonial courts in America until 1680,
it is probable, nevertheless, that until about that time there
had been no open denial of the right of appeal by a colonial
government, nor, except in patents, any positive declaration
by the privy council as to its right to hear appeals from the
colonies.

It appears that appeals from the general court of Virginia,
consisting of the governor and council, were heard before a
joint committee of both houses of the general assembly, the
members of this committee from the house of burgesses being

1 Commentaries, I, p. 108.

2 Ib., I, p. 108.

3 Vol. I, p. 123.

APPEALS FROM COLONIAL COURTS HAZELTINE. 315

in a majority.1 In a particular case that came before this
committee for adjudication, a question arose as to whether
those of its members from the council who had previously
given their opinion in the general court should again sit as
judges with appellate powers. The members from the house
of burgesses on this judicial committee insisted that the
council members ought not so to act. The committee members
from the council, however, asserted this right, and in their
claims were supported by the governor, Lord Culpepper. The
discussion over this question of judicial authority was carried
to such an extent that the governor presented the matter to
the attention of the King. Soon after this an order was issued
by the Crown that thereafter no appeal should be heard by
the general assembly, as such a practice was inconsistent with
the laws and practices of England, but that all appeals from
the decisions of the general court should be heard and deter
mined by the King in council, with the condition that all such
appeal cases should exceed in value £300, and that good
security should be given to pay the principal, with all costs
and damages.

Soon after this remarkable change in the jurisprudence of
Virginia appeals were demanded in some of the other colonies,
especially in New Hampshire and Connecticut. These appeals
were at first refused by the colonial authorities, but on com
plaint being made to the King in council peremptory orders
were issued to admit them. A concrete case will illustrate
the positions taken by the colonial government and by the
privy council. An appeal from the Connecticut courts being
demanded was refused, the colony justifying its refusal by
stating to the King that by the charter the colonists had the
sole power of constituting courts and of deciding ultimately in
all cases without any reservation of a right on the part of the
Crown to revise their decisions. Notwithstanding this firm
position of the colony, the King and council, on the petition of
John and Nicholas Hallam and Edward Palmes, issued the
following order,2 March 9, 1698:

His Majesty in councill approving of what is proposed by the Councill of
Trade in their said representation, is pleased to order that the governor
and company of the colony of Connecticut be required to take care that no

1 Massachusetts Historical Society Collections, first series, V, p. 139;
Pitkin's Political and Civil History of the United States, I, p. 124.
2Macqueen, p. 805.

316 AMERICAN HISTORICAL ASSOCIATION.

obstruction of the course of justice be practiced or allowed amongst them ;
but that the respective cases mentioned in the said representation, and any
other whatsoever that may hereafter happen upon differences between man
and man about private rights, be fairly heard and judged in the proper
methods of the courts established in that colony. And in case the petition
ers in the aforesaid causes, or any of them, or any other persons, shall think
themselves aggrieved by the sentence or sentences which may be there
given, they may thereupon be allowed to appeal to his Majesty in councill.
And that copies of all records and other proceedings in all such respective
cases be transmitted hither, in order to a final hearing and determination
thereof before his Majesty in councill. And that in all such cases, the
governor and company of the colony of Connecticutt do take notice that
it is the inherent right of his Majesty to receive and determine appeals
from all his Majesty's colonys in America; and thai they do govern them
selves accordingly.

Authoritative as was tliis order, the colony of Connecticut,
imagining that the King was taking away its charter rights,
still refused to admit appeals, and the governor even went so
far as to declare that before an appeal should be allowed "they
would dispute the point with His Majesty." ] A second com
plaint being made and further orders issued by the King in
council, an appeal was finally granted in June, 1701. We are
assured by one authority,2 however, that even as late as 1755
no appeals were allowed to the King in council from Connec
ticut; that some had been carried to England by way of com
plaint, but that in all of these there had been no relief except
in the case of John Winthrop.

Notwithstanding the explicit directions in the New Hamp
shire commission of 1679, that colony also resisted for a time
the right of the King and council to hear appeals from its
courts. Yet New Hampshire appeals were actually received
by the King in council, for in the privy council register we
read "that on the 22nd of April, 1685, William Yaughan, in
habitant and planter in New Hampshire, entered his appeale
against several verdicts and judgments, one fine, and one de
cree, given against him in New Hampshire aforesaid."

After the English Revolution, the charter colonies were not
allowed to continue long in the peaceful administration of
their affairs. Their disregard of the navigation acts and their
denial of the right of appeal to the King in council in judicial
proceedings were, perhaps, the chief causes for hostile senti
ment on the part of the British Government. It was a very

iPitkin's Political and Civil History of the United States, p. 125.
a Douglass's Summary, II, p. 174.

APPEALS FROM COLONIAL COURTS HAZELTINE. 317

general opinion in England, also, that the colonies under the
charter form of government were seeking to secure their inde
pendence. In 1701, therefore, a bill was introduced in Parlia
ment, the passage of which would unite all the charter colonies
directly to the Crown, including Massachusetts, New Hamp
shire, Rhode Island, Connecticut, Maryland, East and West
Jersey, Pennsylvania, Carolina, and the Bahama Islands.
About this time, the lords of trade, in a letter to the Earl of
Bellomont, say that—

This declining; to admit appeals to his Majesty in council is a matter
that you ought very carefully to watch against in all your governments.
It is an humour that prevails so much in the proprietor's and charter col
onies, and the independency they thirst after is now so notorious, that it
has been thought fit, these considerations, together with other objections
against these colonies, should be laid before the parliament ; and a bill
has thereupon been brought into the house of lords, for reuniting the
right of government in these colonies, to the crown.

The bill, however, was defeated, largely through the efforts
of colonial agents who were given a hearing before the House
of Lords.

The enemies of the charter and proprietary colonies were
not discouraged by the failure of this bill, and continued to
enter their complaints before the King and the board of trade.
Taking advantage of the just complaints of the inhabitants of
Carolina, in regard to the conduct of the proprietors of that
province, l they succeeded in bringing to the attention of Par
liament, in the beginning of the reign of George I, the subject
of annulling, not only the charter of Carolina but those of the
other colonial governments as well. Once more, however, these
efforts were unsuccessful.

This general history of colonial appeals would be incomplete
without a brief account of three concrete cases which, though
not originating in Khode Island, illustrate in a striking man
ner the vital importance which might sometimes attach to a
colonial appeal. In these three cases the validity of impor
tant colonial laws was brought directly into question, and the
record of these cases forms, therefore, a separate and most
interesting chapter in our legal history. Let us briefly con
sider, therefore, the leading facts in connection with Winthrop
v. Lechinere, Phillips v. Savage, and Clark v. Tousey.

'See Colonial Records of North Carolina, II, p. 121,

318 AMERICAN HISTORICAL ASSOCIATION.

The Connecticut case of Wintkrop v. Leckmere ' is, perhaps,
tke most famous of all tke American colonial cases, for in tkis
case tke validity of colonial law was not only brought into
question, but a certain statute was actually set aside by tke
King in council as being repugnant to the common law of
England.

In 1692 Massachusetts passed an act for tke settlement and
distribution of the estates of intestates. Fn 1699 the assembly
of Connecticut passed a similar act,2 according to the pro
visions of which the real estate of an intestate was divided
among his children, giving, however, a double portion to the
eldest son. General Wait Still Wintkrop, son of Governor
Jokn Wiuthrop, of Connecticut, died in 1717 intestate, leaving
two children, John Wintkrop, and Ann, wife of Thomas Lech-
niere, tke defendant in tkis case. General Winthrop's landed
estates in Connecticut were large, and the administration
of them was now committed to John Wintkrop. Wintkrop,
kowever, claimed all the real estate as his own, holding that
he was General Winthrop's sole heir under the common law
of England, and that the colonial statute of 1699, by which
he would be entitled to two-thirds and his sister to one-third
of tke estate, Avas invalid, as being contrary to tke higher law
of the home country.

Winthrop continuing to hold the entire estate, in 1724
Thomas Leckmere applied to the court of probate of Connecti
cut, claiming, in right of kis wife, a proportion of the real
estate left by General Winthrop, and asserting that he was
kept out of it by reason of the fact that the administrator had
not inventoried and administered the same. Winthrop replied
by showing an inventory of tke personal estate, claiming that
administrators had nothing to do witk lands, as tkey belonged
to tke keir at law — in this case himself — according to the law
of England.

After nearly two years of litigation in the courts of Con
necticut and Massachusetts, the superior court of Connecticut,

1 Connecticut Historical Society Collections, IV, p. 94, note; Massachu
setts Historical Society Collections, sixth series, V, p. 496, and VI;
Massachusetts Historical Society Proceedings, second series, VIII, pp.
125-137; Massachusetts Historical Society Proceedings, first series,
1860-1862, pp. 66, 67. Professor C. M. Andrews' article, "The Connecticut
Intestacy Law/' in the Yale Review, November, 1894.

2 The Connecticut charter gave the assembly the right to make laws,
provided they were not contrary to the laws of England.

APPEALS FROM COLONIAL COURTS HAZELTINE. 319

on March 22, 1725-26, caused the letters of administration
granted to Winthrop to be vacated, and appointed Thomas
Lechmere and Ann, his wife, administrators of the estate. At
the next session of the general assembly Wiuthrop presented
a petition, and declared that he would appeal to the King in
council, although by so doing he would ignore the highest court
in Connecticut, to which the case should have been carried,
according to colonial law. Winthrop's petition being dismissed
by the assembly, he entered a most vigorous protest; and the
assembly thereupon ordered the sheriff to bring him before the
bar of that body to answer for the contempt manifested in the
protest. Wmthrop, however, escaped in the night, before the
sheriff could arrest him, and according to previous threats pre
sented his case to the Kin-g in council by petition, claiming that
the Connecticut act was contrary to the laws of England. The
case was tried before the King in council, and a decree was
finally issued by that tribunal, on February 15, 1728, declaring
the Connecticut law entitled "An act for the settlement of
intestate estates '' null and void, as being repugnant to English
law, reversing the decisions of the Connecticut courts and
giving the whole of the real estate to John Winthrop.

Iteversing, as it did, the policy of distributing and settling
intestate estates which had prevailed in Connecticut from
the beginning of its history, and thus affecting every person in
the colony, the order caused great alarm. But not in Connec
ticut alone was there consternation at this sudden overturning
of established conditions. Other New England colonies had
intestate laws and practices similar to those of Connecticut,
and no one could tell how soon these would also be subverted
by the King and council. The issues presented by this case
were so important to all of the colonists that the government
of Connecticut at once made active and strenuous efforts to
secure a reversal of the privy council's decision. During the
pendency of negotiations for the effecting of this end, a Mas
sachusetts case, similar to Winthrop v. Lechmere, was carried
to the King in council for final adjudication. This was the
case of Phillips r. Savage.1

Henry Phillips, of Boston, killed Benjamin Woodbridge in
a duel on the Common July 3, 1728, and at once tied to France.
He died there about a year afterwards, intestate, leaving his

1 Massachusetts Historical Society Proceedings, first series, 1860-1862,
pp. 64-80, 164-171.

>**
320 AMERICAN HISTORICAL ASSOCIATION.

mother, two sisters (one the wife of Habijah Savage and the
other the wife of Arthur Savage), and the children of a
deceased sister, Mrs. Butler. Administration on his estate,
appraised at £3,950, was granted, July 17, 1730, to his brother,
Gillani Phillips. On April 6, 1733, the judge of probate for
Suffolk County issued a warrant to five freeholders, by Avhich
they were directed "to make a just and equal division, or par
tition, of the estate, in housing and lands, whereof Henry
Phillips, late of Boston, gentleman, deceased intestate, died
seized and possessed, between his mother, brother, sisters, or
their legal representatives, in five equal parts or shares." The
freeholders so appointed performed the service as thus directed,
and made report on May 11, 1733. On May 15 following the
judge of probate allowed and confirmed their action, in probate
court.

On October 18, 1733, Gillani Phillips appealed to the governor
and council from this decree of the judge of probate confirm
ing the action of the committee of freeholders, which he insisted
was wrong and erroneous, for he, Gillam Phillips, as the only
brother of the deceased, was his heir, by the common law of
England. On November 2, 1733, there was a hearing of the
case before the governor and council. This tribunal affirming
the decree of the judge of probate, Phillips, 011 November fol
lowing, presented a petition to the governor and council, pray
ing to be allowed an appeal from their decision to the King in
council. The petition was dismissed by the governor and
council, but by an order of the King in council, February 12,
1734, Phillips was permitted to appeal from the order of the
judge of probate of April G, 1733, issuing the warrant to the
committee of five freeholders to divide the real estate; from
the order of the judge of probate of May 15, 1733, allowing and
confirming the return of the committee; and from the order
of the governor and council of November 2, 1733, affirming
the decree of the judge of probate. The case was tried before
the privy council on January 13 and 1G, 1738. The orders or
decrees appealed from were affirmed and the appeal dismissed.

The question at issue in both of these cases was exactly the
same — the validity of the colonial statutes — and there can be
no doubt that the laws regarding intestate estates, both in Con
necticut and Massachusetts, were contrary to the common law
of England. It seems strange, therefore, that we should find
the privy council deciding so differently in the two cases. But

APPEALS FROM COLONIAL COURTS HAZELTINK. 321

the reason is here. The Massachusetts charter empowered the
colony to make and establish laws, provided they be not con
trary to the laws of England, requiring also that these colonial
laws be sent over to be approved or disallowed by the King in
council. The Massachusetts act of 1692, providing for the set
tling of intestate estates, being thus transmitted to the Crown,
was solemnly confirmed by an order in council; and in pursu
ance of the powers specified in this order, the governor, council
and assembly of the colony passed several explanatory acts in
1710, 1715, and 1719, which were not disallowed by the Crown.
Again, in 1695, the act of 1692 was specially confirmed by the
then lords justices in council. The Connecticut charter, how
ever, contained no provision in regard to sending over colonial
laws for the approval or disallowance of the Crown. When
the Connecticut appeal came before the King in council, there
fore, they were left free to decide, un trammeled by any previous
confirmation of the law in question. But when the Massachu
setts appeal was presented to His Majesty in council, they were
necessarily compelled to take into consideration their past
action in regard to the colonial statutes. This, it is believed, is
the explanation of an apparent inconsistency in the action of
the privy council with regard to these two cases.

The decision of the privy council in the case of Phillips r.
Savage greatly encouraged the people of Connecticut in their
efforts to secure the reestablishment of their intestate law.
The opportunity of presenting the law to the King in council
for a second judgment upon its validity finally came in a pri
vate appeal case, Clark r. Tousey.1

In 1742 Samuel Clark appealed to the King in council for
the recovery of certain lands in Connecticut which he de
manded as heir at law according to the English laws of descent,
but which had been settled upon Thomas Tousey, of Milford,
according to the ancient laws and customs of the colony.
Tousey stated to the general assembly that he was obliged to
go to England to defend this suit, and, realizing that it involved
the old question at issue between the colony and the home
Government, the assembly voted that the sum of £500 should
be loaned to Mr. Tousey to aid him in the suit. In October
following, the colonial agent, Eliakim Palmer, was instructed
to employ solicitors in Tousey's defense and to assist him

1 Connecticut Historical Society Collections, IV, p. 94, note.
H. Mis. 91 21

322 AMERICAN HISTORICAL ASSOCIATION.

further in anyway possible. These combined efforts to secure
a reversal of the privy council's decision in the case of Win-
throp v. Lechmere were finally successful. Clark's appeal was
dismissed by an order in council, July 18, 1745. At last the
validity of the act of .1699 was established.

It is now time to turn our attention to appeals from lihode
Island. Inasmuch as colonial courts were very closely asso
ciated with the history of the practice of appealing to England,
a few words must be said in regard to the Ehode Island judi
ciary. After even a cursory glance at the colony's judicial
system, we shall obtain a much clearer understanding of Eng
lish regulations, colonial legislation, and concrete cases.

The first settlers of Ehode Island established four separate
communities, Providence in 1636, Portsmouth in 1638, Newport
in 1639, and Warwick in 1642.1 Prior to 1647 each of these
communities, with the exception of Warwick, had its own form
of government and consequently its own judiciary. The War
wick settlers believed that they had no right to create a gov
ernment for themselves, and remained, therefore, without a
judiciary.

In 1647, however, there was introduced a new judicial sys
tem, through the union of the four towns under the first charter
and the enactment of a code. The chief officers of government
under the charter of 1647 were a president and four assistants,
who were chosen from among the freemen by their several
towns, one assistant from each town. To these officers was
also committed the duty of holding twice each year the general
court of trials, which was the supreme court in the colony for
the administration of justice. The general court had original
jurisdiction in all important cases and in all matters of judi
cial cognizance not referred to town or local courts, and, at
least after 1650, exercised an appellate or revisory jurisdiction
over these latter tribunals.2 This system, however, was not
satisfactory to the colonists, for " in 1651 it was enacted that

I0n the colonial judiciary, see Durfee's Gleanings from the Judicial His
tory of Rhode Island.

2 Town councils were from the first courts of probate. In 1663 the pro
bate jurisdiction was fully committed to them, with an appeal to the gov
ernor and council as supreme ordinary or judge of probate. By an act of
1718 (Public Laws of Rhode Island, digest of 1719, p. 95) appeals from the
judgments of town councils were heard by the governor and council, where
a " final judgment " was rendered.

APPEALS FROM COLONIAL COURTS HAZELTINE. 323

all causes, except prosecutions for certain crimes of the highest
grade, should be tried in the first place in the town courts, the
general court being thus converted into a court of appeal or
review. The system as thus modified remained in force, except
as it was interrupted by Coddington's usurpation, until 1663,
when the royal charter of Charles II was received."

The charter of 1663 did not create judicial tribunals, but
authorized the general assembly l to " erect such courts of jus
tice, for determining all acts within the colony, as they should
think fit." Accordingly, the general assembly at its first ses
sion under this new charter conferred magisterial functions
upon certain of the legislative officers, by providing that either
the governor or the deputy governor, with at least six assist
ants, should hold the general court of trials at Newport every
year in May and October.2 Durfee says that " the act consti
tuting the superior court," or the court we have just referred
to, " did not define its jurisdiction j but, as the charter con
tinued iu. force all statutes not repugnant to the laws of the
realm, it may have been understood that the old system sur
vived and that the court, as newly officered, was a continua
tion of the former court of the same name. This, however, is
not clear. * * * The old court became, as we have seen,
mainly a court of appeals, whereas the new court appears to
have exercised more original jurisdiction. * * * The reader,
therefore, who tries to form a clear conception of the system
will probably not succeed. He will not be able to determine
with certainty the jurisdiction of the several courts; nor their
relations to each other; nor by what procedure causes were
carried from the lower to the higher, and correction was trans
mitted from the higher to the lower tribunals." 3

The general assembly, at the May session, 1666, passed an
act4 for the calling of special courts, which is of peculiar

1 Composed of governor, deputy governor, ten assistants and a body of
deputies.

- The terms were subsequently changed to March and September, as it
was found that the sessions of the court interfered with the sessions of
the general assembly.

3 In regard to the jurisdiction and procedure of the superior court, or
more properly the general court of trials, see further the " Report of the
Earl of Bellmout on the irregularities of Rhode Island," Boston, Novem
ber 27, 1699, in Rhode Island Colonial Records, III, p. 385, and Governor
Cranston's letter to the Board of Trade, December 5, 1708, in Rhode Island
Colonial Records, IV, p. 56.

4 Public Laws of Rhode Island, Digest of 1719, p. 17.

324 AMERICAN HISTORICAL ASSOCIATION.

interest as being the first legislative enactment that we have
been able to find containing reference to privy council appeals
from courts of the colony. This act of 1666 recites that whereas
it often happens that merchants, sailors and other persons who
are not permanent inhabitants of Rhode Island, when they
come to the colony to trade and transact their business affairs,
either sue or are sued in personal actions 5 that whereas injus
tice is done to these persons by reason of their being detained,
often for a long time, until the usual courts of trial shall deter
mine such causes; and that whereas, also, this long period of
waiting is occasioned many times through malice of the other
parties, who desire to hinder them from proceeding on their
voyage; the governor and deputy governor are in such cases
to call special courts, which shall consist of the governor, and
in his absence of the deputy governor, and three or more
assistants of the colony. The decisions of such special courts
shall be final, "saving only to the party aggrieved the liberty
of appealing to His Majesty in council in England, as in other
cases is usually allowed."

During the period of Governor Andros's administration
of New England affairs, the judicial system of Ehode Island
was modified to meet the altered political conditions. As in
the case of the other colonies constituting the colony of New
England, appeals from the courts of Rhode Island lay, in
civil causes, to the governor and council, and from that tri
bunal to the King in council.1 On the resumption of the char
ter in 1690, the judicial system in vogue previous to 1686 was
reestablished.2

An important change in the judicial system occurred in 1729,
when the colony was divided into three counties, Newport,
Providence, and King's, and a criminal and a civil court estab
lished for each county. The criminal courts were designated
as courts of general sessions of the peace, and consisted of
the justices of the peace in each county, any five of them being
a quorum. These courts had " original jurisdiction, subject to
appeal to the higher court, of all crimes not capital, and appel
late jurisdiction of all such petty offenses as were triable by
justices of the peace." The civil courts were denominated
courts of common pleas, and were each held by "four judi-

1 See Governor Andros's commission of 1686.

2 Act of May, 1690. See Rhode Island Colonial Records, III, p. 268.

APPEALS FROM COLONIAL COURTS HAZELTINE. 325

cious and skillful persons," chosen by the general assembly
from the counties in which they were to act. The jurisdiction
of the courts extended, subject to appeal to the higher court,
to " all civil actions arising or happening within such county
triable at common law, of whatever nature, kind, or quality
soever." The higher court in the colony now became known as
" the superior court of judicature, court of assize, a ad general
gaol delivery," and its jurisdiction in civil, and for the most
part in criminal, matters became purely appellate, although
with as full powers in this respect as the court of common
pleas, King's bench, or exchequer in England.1 The act of
1729,2 establishing the system just described, provides that—

The Judgment and Determination of said Superior Court shall be a
final Issue and Determination of all causes there Tryed, excepting only,
and saving an Appeal to the General Assembly in all Personal Actions, and.
from thence to the King in Council, where the Matter in controversy will
admit thereof, and an Appeal directly to the King in Council in all Causes
not Cognizable before said Assembly, that by Law will admit the same.

Judge Durfee is of the opinion that "the system as thus
revised was complete, clearly denned, and doubtless well
suited to the need of the colony," except in the two particu
lars, that the superior court continued to be held by the gov
ernor, or deputy governor, and the assistants, and that it con
tinued to be held exclusively at Newport.

The disadvantages incident to these particulars finally occa
sioned a radical change in the judicial system through the
passage of the act of February, 1747.3 In place of the gov
ernor, or deputy governor, and ten assistants, there were to
be five judges, a chief and four associates, any three being
a quorum. They were to be chosen annually by the general
assembly, and commissioned by the governor, to hold the
court. Provision was also made for two sessions a year in
every county throughout the colony. The act concludes by
stating that this court "is hereby empowered to make up
judgment in all such continued actions as aforesaid, and award
execution thereon, excepting where there shall be an appeal to
His Majesty in council, agreeable to law."

Our sketch of the Ehode Island judiciary would be incom
plete without some account of the exercise of judicial functions

1 Douglass's Summary.

2 Public Laws of Rhode Island, Digest of 1730, p. 192.

3 Public Laws of Rhode Island, Digest of 1752, p. 27.

326 AMERICAN HISTORICAL ASSOCIATION.

by the general assembly; for from the very first the assembly
appears to have regarded itself a judicial tribunal as well as
a legislative body, and during practically all of the colonial
period exercised an appellate jurisdiction over colonial courts,
granting or refusing also appeals to the King in council.

Neither the charter of 1047 nor that of 16G3 conferred upon
the assembly the large judicial powers which it assumed ; the
charter of 1663, as already noted, merely directing that the
assembly was "to erect such courts of justice for determining
all acts within the colony, as they should think fit." In 1647,
under the first charter, the assembly passed an act ' declaring
that "in case any man sues for justice against an officer or
other, and he can not be heard, or is heard and can not be righted
by any law extant among us, then shall the party grieved peti
tion to the General or lawmaking Assembly, and shall be
relieved." That the assembly, under the charter of 1603, did
not assume these powers without some apprehension is evi
dent from the action of that body itself; for in 1678 it refused
to interfere with a decision of the general court of trials in the
case of Forster v. Sanford, affirming that " this Assembly con
ceive that it doth not properly belong to them or anywise
within their recognizance to judge or to reverse any sentence
or judgment passed by the General Court of Tryalls, accord
ing to law, except capitall or criminal! cases, or mulct, or
fines."2 Yet, notwithstanding this plain declaration as to its
lack of judicial power, the assembly two years later, or in
1680, greatly extended its own appellate jurisdiction by grant
ing the right of appeal to any party in any " actional case7'
who should be aggrieved by a decision of the general court.
In 1699 the Earl of Bellomont was instructed by the lords of
trade and plantations to inquire concerning the conduct of
Rhode Island in certain matters. In his report Bellomont
declares that "the General Assembly assume a judicial power
of hearing, trying and determining civil cases, removing them
out of the ordinary courts of justice, and way of trial accord
ing to the course of the common law, alter and reverse ver
dicts and judgments — the charter committing no judicial
power or authority unto them." Eegardless of this report, as
well as of the sentiment of the authorities in England, which was

1 Proceedings of the First General Assembly and the Code of Laws of
1647, p. 61.

2 Rhode Island Colonial Records, III, p. 19.

APPEALS FROM COLONIAL COURTS HAZELTINE. 327

antagonistic to the policy pursued by the legislative branch of
the Khode Island government, the assembly enacted, in 1705,
that " the General Assembly, at all times convened in general
assembly, shall be a court of chancery, as formerly it hath
been, until such time as a more proper court may be conven
iently erected and settled." The privy council declaring in
1710 the decision of the assembly in the appeal case of Bren-
ton v. Eemington null and void for want of jurisdiction, the
assembly itself finally came to the conclusion that it had no
charter power to constitute itself a court of review, affirming
that it could not " find any precedent that the legislators or
parliament of England, after they had passed an act or law,
took upon themselves the executive power or authority of con
stituting themselves a court of chancery or any other court of
judicature." In February, 1712, therefore, the assembly erected
a court of chancery to hear appeals, though, strangely enough,
still continuing to exercise its former appellate jurisdiction by
means of petition. In 1741, however, it established a court of
equity to hear and determine all appeals in personal actions
from the judgments of the superior court. The act ] consti
tuting this court declares that " the judgment and determi
nation of said court shall be final, saving an appeal to His
Majesty in council in those cases wherein the law hath already
provided." But the act of February, 1743,2 abolished this
court, and provided for an action of review 3 in the superior
court, declaring, furthermore, "that execution shall not be
stayed or suspended by reason of any such action of review;
and that any judgment given in any action of review shall no
ways hinder the party aggrieved thereat to appeal to His
Majesty in council in all cases where the law of the colony
permits and allows the same." But it is probable that after the
passage of this act of 1743, and even after the establishment
of the new superior court in 1747, the general assembly exer
cised appellate powers; for in the case of Pearce v. Eice, 1752,

1 Act of May, 1741. See Rhode Island Colonial Records, V, p. 22.

2 Rhode Island Colonial Records, V, p. 76; Public Laws of Rhode Island,
Digest of 1745, p, 282.

3 An act of 1732 provided for review in real actions relating to titles of
land, and stipulated that " Judgment on Review shall in no ways hinder
the Party Aggrieved with such Judgment to appeal to His Majesty in
Council in Great Britain in all Cases where the Law of the Colony permits
and allows the same." (See Public Laws of Rhode Island, Digest of 1730,
p. 247.)

328 AMERICAN HISTORICAL ASSOCIATION.

the assembly allowed an appeal to England from the superior
court, and directed that tribunal accordingly.

In hearing and determining appeals the two houses of the
assembly resolved themselves into a grand committee (joint
session),1 each case being tried on all the issues, the assembly
itself acting as. triers both of law and fact.2 At the conclu
sion of the trial the vote of this grand committee decided
whether the decision of the court below should be affirmed,
reversed, or " chancerized " by mitigating the damages. If
either party was dissatisfied with the decision of the assembly
and wished a further trial in England, he at once, usually
through his attorney, moved for an appeal to the King in
council. The assembly thereupon decided whether such an
appeal should be allowed or refused. When appeals were
allowed, the assembly usually stipulated that the law in such
cases must be complied with. In some appeal cases tried
before the assembly the damages were chancerized to a sum
below that required for an appeal to England; and on request
for such appeal from decisions of the general assembly the
appellants were usually refused. In one case of which we have
record damages were chancerized by the assembly, from £500
to £15, and an appeal to England was then refused because
the sum involved was less than £300.3

As already indicated the assembly not only allowed appeals
from its own decisions, but from those of other colonial courts.
In February, 1712, a petition was presented to the assembly by
Captain Samuel Greene, attorney to John Knight, requesting
that an appeal to England might be granted the said Knight
from a decision of the court of trials in his suit with John
Babcock concerning lauds in the Narragansett country; and
the assembly thereupon "enacted" that Greene should be
allowed so to appeal, if he complied with the law in such
cases.4 In 1752 it granted an appeal from the superior court
in a case to which we have just referred. In June of that year
it was —

Voted and Resolved, That the Superior Court of Judicature of this Col
ony, be, and they are hereby directed to permit John Pearce and Thomas
Pearce to appeal to His Majesty in Council, from a Judgment obtained

1 Rhode Island Colonial Records, IV, p. 157 ; V, p. 80.

2Durfee's Gleanings from the Judicial History of Rhode Island, p. 37.

3 Rhode Island Colonial Records, IV, pp. 268,269.

<Ib., IV, p. 138.

APPEALS FROM COLONIAL COURTS HAZELTINE. 329

against them by John Rice, agreeable to the Orders of his said Majesty in
Council, now before this Assembly: Any Law of the Colony to the con
trary hereof, notwithstanding. And it is farther Voted and Resolved, That
the Superior Court meet in the County of Kent on Tuesday the sixteenth
Day of this Instant June, for the Purpose aforesaid: And that the said
John Rice be notified thereof, and served with a Copy of this Act, together
with a Copy of said Order of His Majesty in Council.1

The assembly also exercised an authority over colonial courts
in the matter of carrying into effect the decisions of the King
in council in cases appealed from the colony. In 1767 George
Koine, in behalf of William Stead, of London, presenting to
the assembly two decrees of the King in council deciding in
favor of the said Stead in his suit against Isaac and Naphtali
Hart and Isaac Elizer, prayed that the assembly, to whom the
decrees were directed, would instruct the superior court to
order them put in execution at a special meeting of the said
court, to be held the following Tuesday. This the assembly
refused to do, on the ground that such proceedings in the
superior court would be out of the regular term of that tribu
nal. Later in the same session of the assembly, however, it
was voted and resolved that "in conformity to the rule and
practice of this colony in such cases, that the superior court
be, and hereby is, directed at the next term to take the subject-
matter of the said decrees into their consideration, and order
them immediately into execution, upon their being presented
to said court." 2

Ehode Island legislation regulating appeals begins with the
act of 1706,3 which provides that —

On all appeals by any person in said Collony to England, to her Majesty
in Councill, bond for the prosecuting all said appeals shall be given to
the Governor and Councill, to prosecute said appeals according to the
time given and agreed on by the Governor and Councill, for all persons
that shall have appeal allowed them; and the appelee shall be cited to
appear in England before her Majesty and Councill to answer.

Although in 1689 governors were instructed not to allow
an appeal to the Crown unless the matter in controversy
amounted to £500, many cases of "very small moment," in
which persons of little means were compelled to lose their
rights through inability to defend them, were appealed to the

1 Rhode Island Acts, Resolves, and Reports, May, 1750-March, 1755, p. 24.

2 Rhode Island Acts, Resolves, and Reports, May, 1765— October, 1770,
p. 44.

3 Rhode Island Colonial Records, III, p. 562.

330 AMERICAN HISTORICAL ASSOCIATION.

King iii council from the colony.1 At the October session of
the assembly in 1718, therefore, the recorder was directed to
draw up an act regulating appeals; and at an adjourned ses
sion in June, 1719, it was enacted2 that no person or persons
be allowed to appeal to England, unless the matter or thing in
controversy amount to three hundred pounds, current money
of the colony, to be valued by the court where the appeal shall
be prayed.

The two acts just cited formed the colonial legislation in
regard to privy council appeals until 1746. In this year the
act of 1711) was repealed, as it was found that under its pro
visions appeals were still carried to England in matters of
too small value; and it was enacted3 that for the future any
person or persons aggrieved by a decision of the superior
court should have the liberty of appealing to the King in
council where the matter or thing or controversy was of the
value of £150 (sterling), and in no other case whatsoever, the
superior court where the appeal was prayed being empowered
to ascertain the value of said appeal. In 1747, or one year
after the passage of this act, Parliament resolved to reimburse
the colonies for their outlay in the expedition that resulted
in the capture of Louisbourg. Rhode Island received at that
time £7,800 sterling, with which the committee in charge of
the matter redeemed £88.725 of the colonial bills of credit.4
We thus see that £1 sterling was equal to about eleven pounds
in current money of the colony. About the time of the passage
of this act, therefore, £150 sterling were equal to about
£1,650 in current money of the colony; and by changing the
sum for which an appeal should be allowed from three hundred
pounds current money of the colony, under the act of 1719,
to £150 sterling, the assembly increased the legal require
ment about five and one-half times.

Four years after the enactment of the statute of 1746, or at
the October session of the assembly in 1750, a supplementary
act was passed, according to the terms of which —

1 Preamble of act of 1719.

2 Public Laws of Rhode Island, Digest of 1730, p. 106.

3 Public Laws of Rhode Island, Digest of 1752, p. 30. Appeals to
England caused the printing of this Digest of 1752. (See Rhode Island
Colonial Records, V, p. 355).

4 See Rhode Island Historical Tracts, No. 8, pp. 63-67. This tract, by
Judge Potter and Mr. S. S. Rider, gives an account of Rhode Island
paper money from 1710 to 1786.

APPEALS FROM COLONIAL COURTS HAZELTINE. 331

No defendant in any suit of law in this colony, the foundation whereof,
being a bond conditioned for the payment of money only, shall have leave
to appeal from the judgment of such court, where such action shall be
tried, to His Majesty in council; but that the last judgment of the supe
rior court of judicature, in this colony, as trials now stand, regulated by
the laws of this colony, shall in all such cases be final. And furthermore,
that in all appeals to His Majesty in council, from this colony, if the appel
lant doth not obtain a reversal of the judgment appealed from, or fails in
prosecuting such appeal, the appellee, in such case, may, by action of the
case, recover all just and reasonable costs and damages.

Perhaps the most comprehensive and important Rhode Island
legislation in regard to appeals is contained in the act of 1764.1
It appears that even after the passage of the act of 1746 cases
of small value were appealed to England, and in order to pre
vent such appeals in the future the assembly passed this act
of 1764. It recites that no person shall be allowed to appeal
from the decision of the superior court to His Majesty in council
unless the matter or thing in question be of the value of £200,
lawful money, to be valued by the court where the appeal shall
be prayed; and that whoever shall thus appeal to the King in
council shall give bond to the superior court or to the clerk
thereof, before the rising of the same, with a good surety or
sureties, to be approved by the said court, in the sum of £250,
lawful money, for the effective prosecution of the appeal, or,
in default thereof, to pay to the appellee all costs and damages
which he, the aforesaid appellee, shall sustain by reason of
such appeal not being prosecuted with effect. The act further
recites that, whereas by former laws of the colony regulating-
appeals to the King in council bond was not required of the
appellee to secure to the appellant his costs upon a reversal of
the colonial decision, the appellant might, notwithstanding
such reversal and His Majesty's order in council, be defeated
of his rights, in that the appellee may, before the final deter
mination of the cause, be rendered insolvent or be removed
out of the colony, so that neither his body nor estate can be
found. To remedy this evil it is required that the appellee,
before he shall be permitted to receive a copy of the case from
the clerk of the superior court, shall give bond in the said
clerk's office in the sum of £250, lawful money, with a good
surety or sureties, to pay unto the appellant all such costs and
charges as he shall sustain if the decision of the colonial court
be reversed by the King in council. The statute concludes by

Public Laws of Rhode Island, Digest of 1767, p. 10.

332 AMERICAN HISTORICAL ASSOCIATION.

stating that no defendant, in any suit whose foundation is a a
bond conditioned for the payment of money only," shall have
the liberty of appealing from the colonial court to the King in
council, but that the last judgment of the superior court shall
be final; and by providing that an appeal shall not stay or sus
pend execution in favor of the party obtaining a final decision
in the colony, provided such party, at the time of taking out
his execution, give bond into the office of the court, with two
good sureties, to refund whatever shall be lawfully levied and
taken in consequence of such execution.

It will be observed that this act designates £200, lawful
money, as the sum below which no appeal is to be allowed. In
1704 gold and silver coins were the only lawful money in Ehode
Island,1 and the colonial standard of value was practically the
same as that of the home country, a pound of English money
having a slightly greater purchasing power than the colonial
pound. By increasing the sum below which no appeal was to
be allowed from £150 sterling, under the statute of 174G, to
£200, lawful money, under this act of 1764, the assembly in
reality raised the legal requirement something less than £50
sterling.

A statute of 1768 2 further regulates appeals by providing
that whenever an appeal is prayed for and granted from the
decision of the superior court, it shall be lawful for the judges
of the said court, when the appellant is absent at the time the
appeal is allowed, to accept bond of any other person, appear
ing in behalf of such appellant, whom the said judges shall
regard of sufficient estate in the colony, with such other sure
ties as the court shall deem sufficient, in the same manner as
if the party appealing was present himself in court to give
bond. The act of 1769 3 stipulates that whenever an appeal
to the King in council is allowed, and bond given by the appel
lant for prosecuting the same according to law, there shall be
no review of the cause in the colony; and furthermore, that
if such writ of review shall be taken out, the court to which
the same is brought shall "ex-officio" bar it and award the
defendant his costs. According to the law of 1771 4 no appeals
from the superior court were to be allowed unless the matter

1 See Rhode Island Historical Tracts, No. 8, pp. 97-100.

2 Public Laws of Rhode Island, Digest of 1772, p. 8.
3Ib., p. 17.

4Ib., p. 38.

APPEALS FROM COLONIAL COURTS HALELTINE. 333

in controversy amount to £300, lawful money, to be valued
by the court where the appeal was prayed.

In June, 1775, the "Act for regulating appeals to His
Majesty in council, in Great Britain, "was repealed;1 and in
May, 1776, it was enacted that the courts of law of Rhode
Island be no longer entitled or considered as the King's courts.2
With these two acts ends the legislation of the Rhode Island
assembly in regard to appeals to England, the acts them
selves abrogating the appellate jurisdiction of the King in
council over the courts of the colony.

On the accession of James II to the throne of England in
1685, the inhabitants of Rhode Island immediately trans
mitted an address to the King, in which they acknowledged
themselves his loyal subjects, professed obedience to his power,
and begged protection to their chartered rights. Even this
evident humility, however, could not save the colony from the
plan of reform for Xew England ; and in the same year as the
transmission of this address Edward Randolph exhibited seven
articles of high misdemeanor against the governor and com
pany of Rhode Island to the lords of the privy council's com
mittee on plantation affairs. These charges were referred in
July, 1685, to the attorney-general, with orders to issue a quo
warranto against the Rhode Island patent. But the colony
refused to stand suit with the King and gave up its charter,
Sir Edmund Andros being appointed soon after to govern its
affairs.

In the first of these seven articles of high misdemeanor
Randolph charged that the governor and company of Rhode
Island denied appeals to His Majesty; and in Sir Edmund
Audros's account of his administration and imprisonment
to the council's committee on trade and plantations3 it was
asserted that the colonies of New England, and among them
Rhode Island, neither admitted English laws to be pleaded
nor allowed appeals to the King in council.4 On March 26,
1705, the privy council itself preferred several charges against
Rhode Island, the eighth article being that the colony denied

1 Rhode Island Colonial Records, VII, p. 355.

-Rhode Island Acts, Resolves, and Reports, May, 1776 — April, 1777, p. 22.

3 This committee was variously known as the committee 011 plantation
affairs, the committee on trade and plantations, and the committee on
hearing appeals from the plantations.

4 Rhode Island Colonial Records, III, p. 284.

334 AMERICAN HISTORICAL ASSOCIATION.

appeals. Governor Cranston, in a letter to the board of trade,
May 27, 1699, asserted that Edward Randolph, who was in the
employ of the royal customs commissioners, publicly declared
that he would be the means of depriving the colony of its priv
ileges ; "and we know," the governor concluded, "he picked
up several false reports against us."1 In reply to the privy
council's charges, the colonial officials declared, August 28,
1705, that they had not refused to allow appeals, when duly
applied for and the value of the matter in controversy re
quired the same.2 It was further averred that, for want of
instructions in the case, they had granted an appeal for the
value of £20, which, "with, humble submission," they con
ceived to be "frivolous and vexatious."

Notwithstanding these denials by the colonial government,
Governor Dudley wrote the board of trade on November 2,
1705, with charges against Ehode Island, the seventh article
being that the colony had refused to allow appeals to Her
Majesty in council, and gave great vexation to those who de
manded the same.3 Lord Cornbury also wrote the board of
trade on November 26, 1705, in regard to the charges against
Rhode Island, and asserted that they had denied appeals.4
In support of his charge, Governor Dudley brought forward
two affidavits, now in the public record office in London, one
affirming that at a court of trials held at Newport, in Septem
ber, 1704, the request of John Baffin and others for an appeal to
England " in the cases of Mr. Elisha Hutchinson and others,
his partners, against John Tones and Aron Jaques " was
refused, on the ground that the plaintiffs should have a rehear
ing in another court before the appeal be granted, the gov
ernor, however, entering his dissent from this opinion of the
court. In the other affidavit James Menzies, on October 12,
1705, being called and examined in the presence of Governor
Dudley, testified and declared that " the government and
courts of the colony of Rhode Island have frequently refused
appeals to the Queen's Majesty and the late King William in
councill as in the case of Brinley rers. Dyer and Brenton vers.
W alley."5 In proof of Cornbury's charge, he himself cited

1 Rhode Island Colonial Records, III, p. 375.

2Ib., Ill, p. 548.

3Ib., Ill, p. 543.

4Ib., Ill, p. 545.

5 MS. copies in private hands.

APPEALS FROM COLONIAL COURTS HAZELTINE. 335

the case of Major Palmes — who was even then, November 20,
1705, going to England to make his complaint — and referred
to the oath of James Fitch and Samuel Mason. From an
examination of all the sources at hand nothing further can be
found in regard to the particular cases mentioned in these let
ters and documents, with the possible exception of a reference
in a report on the irregularities of Ehode Island l which the
Earl of Bellomont submitted to the home government on
November 27, 1699. In this document Bellomont asserts that
" they are willfully negligent and refuse to comply with or
obey the King's commandments sent unto them; particularly,
they are complained of by Mr. Briuley and Nathaniel Water
man, for not observing the King's orders, relating to some
trials, had within the courts within that colony, wherein they
were concerned." It is impossible to say whether reference is
here made to the case of Brinley v. Dyer which was mentioned
in one of the affidavits just cited. Even if it does not so refer,
however, the earl's statement is of interest in connection with
the matter under consideration. But it should be further
remarked that in this report there is no direct assertion in
regard to the denial of appeals by the colonial courts, the
only possible reference to such denial being contained in the
earl's remarks, just quoted, with regard to the complaints of
Brinley and Waterman.

As a result of the charges preferred against the New Eng
land colonies the board of trade, in a representation2 to Queen
Anne in regard to Massachusetts, Ehode Island, and Connecti
cut, January 10, 1706, asserted that u divers of them have
denied appeals to Your Majesty in council, by which not only
the inhabitants of these colonies, but others Your Majesty's
subjects are deprived of that benefit enjoyed in the planta
tions under Your Majesty's immediate government, and the
parties aggrieved are left without remedy against the arbi
trary and illegal proceedings of their courts." While this
representation, in referring to Connecticut, states that " they
have refused to allow of appeals to Your Majesty in council,
and give great discouragements and vexation to those that
demand the same," specific references to Massachusetts and
Ehode Island contain no claim in regard to denial of appeals.

1 Rhode Island Colonial Records, III, p. 385.
*Ib., IV, p. 12.

336 AMERICAN HISTORICAL ASSOCIATION.

While it is impossible to discuss this interesting question
further at the present time, it must be admitted that from the
evidence thus far obtained there can be no doubt that Rhode
Island did actually evade appeals in some cases; but that
the courts of the colony went to the length of plain refusal,
as stated in certain of the charges, is at least questionable.
Undoubtedly the court of trials held at Newport in Septem
ber, 1704, evaded an appeal in the case of Hutchinson et al. v.
Fones and Jaques by deciding that the parties should have
a rehearing in the colonial court, for at that time there was
no law of the colony in regard to a positive rehearing, cases
being retried before the same judges, who would very rarely
indeed reverse a former decision made by themselves. With
out doubt, too. the power assumed by the assembly of chancer-
izing, or mitigating, the damages assessed by other colonial
courts, enabled that body to evade in some cases the necessity
of allowing an appeal from its own decision. If the assembly
anticipated that an appeal might be demanded from its deci
sion, it could chancerize the damages to a point below the
sum required for an appeal to the King in council;1 then, if
the appeal were actually demanded, the assembly could very
gracefully decline to grant it on the ground of illegality. But
Avhether or not the courts of Rhode Island did really deny
appeals in cases where legally they should have granted them,
the following considerations will be of interest as showing,
among other things, that no record has been found of an
appeal granted by a Rhode Island court prior to or during the
period Avheu the charge of denial was preferred against the
colony.

Indeed, although a letter written by Roger Williams to the
town of Providence in 1654 refers to certain citizens who were
" zealously talking of undoeing themselves by a tryall in Eng
land," and although the wording of the act of 1666 indicates
that appeals to the King in council were frequently allowed
even at that early day, the writer has been unable to find in
the records of Rhode Island courts an appeal case prior to
1706.2 Between that date and 1776 we find in Rhode Island

1 The instructions of 1689 specified that the sum in controversy must
amount to £500.

2 The case of William Harris, 1677-1679, appears not to have been pre
cisely a case of judicial appeal.

APPEALS FROM COLONIAL COURTS HAZELTINE. 337

official record of 7 appeals granted by the general assembly1
and 10 granted, by the superior court for Providence County.
Beside these we have authentic record of at least 3 other cases
appealed from the superior court of the colony.2 An official
examination of the privy, council register, however, recently
made for the writer by Thomas Preston, esq., librarian to the
privy council, and extending from 1675 to 177G, discloses 59
Rhode Island appeal cases decided by the King in council,
the first there recorded being of the year 1735. Of these 6
are among the 20 of which we find record in Rhode Island.
Under date of December 8, 1894, Mr. Preston writes that, al
though there were a few petitions prior to 1700 as to disputed
boundaries of estates, there is no regular or judicial appeal
entered earlier than 1735. It is natural to conclude, therefore,
that the cases appealed prior to 1735 and some subsequently
to that date were either not prosecuted or not finally adjudi
cated by the King in council.3

It may not be without some interest at this point to note
what decisions were made by the King in council in the 59
Ehode Island cases adjudicated by that tribunal between 1735
and 1770. Twenty-two of these appeals were dismissed for
non-prosecution, one of them being afterwards reaffirmed. In
15 the decisions of the colonial courts were reversed, and in two
of these the council sent directions to the lower tribunal. In
11 the decisions of the colonial courts were affirmed. Six pre
vious deci sions were varied, one of them chiefly as to the rate
of interest 011 bills of credit for £28,179, the damages in an
other being reduced, a peremptory order issued in a third,
and two of the remaining three being remitted. In one both

1 Two of these were appeals, not from decisions of the assembly, but
from other courts; one from the general court of trials and the other
from the superior court. See remarks on the procedure of the general
assembly in a previous part of this paper.

2 Cases in regard to the 'church lands at South Kingstown.

3 It should be remembered, however, that Mr. Preston states merely
what there is on record at the privy council office, i. e., what is the earliest
thing there, not what was absolutely the first. Several of the appeals
granted by Rhode Island courts prior to 1735 may have been adjudicated
by the King in council, although not recorded in the privy council register.
One such case, Torrey v. Mumford, 1734, will be refered to later. Some of
the cases appealed subsequently to 1735, and of which we can find no
record in the register, may possibly also have been decided by the Kiiig
in council.

H. Mis. 91 22

338 AMERICAN HISTORICAL ASSOCIATION.

the appeal and the cross appeal were dismissed ; one was refer
red back to the colonial court with special directions; the
verdict in one was set aside and a new trial in the colony
directed; one was simply dismissed; and in the remaining one
a peremptory order was issued to the colonial judges to carry
out the council's decision in a previous suit by the same parties.

Before reviewing individual cases it will be instructive to
make a few introductory comments upon the action of Rhode
Island courts in the matter of observing legal requirements in
regard to allowing appeals.

Prior to the passage of the act of 1719 the general assembly
granted at least one appeal where the matter in dispute was
not of the legal value. The instructions of 1689 specified that
the sum involved must equal £500; but the assembly in 1715
granted an appeal in the case of Chapman and Norton v.
Rouse,1 where, in an action for trespass, the amount of dam
ages claimed was only £100, current money of JSTew England.

The colonial acts of 1719, 1746, 1764, and 1771 specified that
no appeal should be allowed where the matter in controversy
was below a certain prescribed value, and granted to the court
where the appeal was prayed the power of determining whether
the mattter involved amounted to the legal requirement. That
the power thus conferred upon colonial courts was put into
actual practice may be proved by concrete examples. The
general assembly, in the exercise of its functions as a court of
justice, refused several appeals on the ground that the matter
in dispute was not of the value required by law. Among such
cases were Brentou v. Mott and Freebody v. Whipple, in 1720,
and Brenton v. Stanton, in 1728.2 Between 1747 and 1776 the
superior court for Providence County refused eight appeals
for the same reason.3

According to the act of 1706 the appellant was required to
furnish bond for the prosecution of his appeal according to the
time agreed upon by the governor and council; and according
to the statute of 1764 both the appellant and the appellee were
required to give bond in the sum of £250, lawful money, with
a good surety or sureties, the appellant giving this bond to the
superior court, or to its clerk, before adjournment, the appellee
filing his bond in the clerk's office before he should receive a

1 Rhode Island Colonial Records, IV, p. 199.

2 For these cases see Rhode Island Colonial Records, IV, pp. 268, 269, 412.

3 MS. records of superior court.

APPEALS FROM COLONIAL COURTS HAZELTINE. 339

copy of the case. Let us examine court records to see whether
these provisions were complied with.

Under the act of 1706 bond was furnished by the appellants
in four of the cases appealed from the decisions of the general
assembly: Albrow v. Noyes, in 1706; Chapman and Norton v.
House, in 1715; Ford v. Hodgson, in 1717, and Crawford v.
Smith, in 1719. No sum is specified in the record of these
cases except that of Ford v. Hodgson, where the appellant
gave bond in the sum of £300. In this case tiie appellee was
also required to give bond in the sum of £1,000, with security,
although there was no colonial law or English regulation at
that time requiring bond of the appellee. It was customary
in these general assembly cases to file bond in the recorder's
office within ten days after the appeal had been granted.

The records state that bond was furnished by the appellants
or required of them by the court in nine of the ten appeals
granted by the superior court for Providence County between
1747 and 1776. In two of these nine cases, Galton r. Collins,
appealed in 1747, and Sessions r. Brayton, appealed in 1767,
both the appellant and the appellee gave bond; in Sessions v.
Braytou each party to the suit giving the bond within forty
days from the rising of the court in the sum of £200, sterling
money of Great Britain. In the case of Isaacs b. Merritt,
appealed in 1756, bond was furnished for the appellant by Isaac
Hart and John Cole in the sum of £100 sterling. The appel
lant in the case of Tyler v. Russell, appealed in 1758, was
ordered by the court to give bond for £100 sterling, with surety.
The appellants in Arnold et al. v. Greene, appealed in 1765,
were required to give bond in the sum of £150 sterling, within
thirty days after the rising of the court. It will be noticed that
in certain cases appealed subsequently to the passage of the
act of 1764 bond was not given in the exact sum, £250, lawful
money, specified by that statute; and that bonds were not
always required to be filed before the rising of the court, as
provided by the act just cited.

The records both of the assembly and the superior court are
not always exact in statement. We read, for example, that in
certain cases the parties complied with the law, although the
amount of the bond, the time of filing, and similar particulars
are not recorded. While we find instances, therefore, where
the law was not complied with to the letter, it is probable that
Rhode Island courts observed in the main the provisions of
legislative enactments.

340 AMERICAN HISTORICAL ASSOCIATION.

The processes of appeal may be further illustrated by trac
ing the history of certain cases. The litigation1 in regard
to the church lands at South Kingstown, during which the
attempt was made hi four cases t6 appeal to England, is of so
much interest and importance that it demands a place in the
history of Ehode Island appeals.

In 1657 the chief sachems of the Xarragansett country sold
Petaquamscut Hill for £16 to John Porter, Samuel Wilbore,
Thomas Murnford, and Samuel Willson, of Khode Island, and
John Hull, of Massachusetts ; and in the year following the
sachem of Kienticut sold some lands north of this tract to the
same purchasers. Brenton and Arnold were afterwards asso
ciated with these five men and jointly they became known as
" the seven purchasers."

On June 4, 1668, five of these purchasers passed an order
"that a tract of 300 acres of the best laud, and in a conven
ient place, be laid out, and forever set apart as an encourage
ment, the income or improvement thereof wholly for an ortho
dox person, that shall be obtained to preach God's word to the
inhabitants." It appears probable that no deed or more formal
conveyance was ever made. In 1679, however, a confirmatory
order was passed; and in 1692 the tract was surveyed, platted,
and the words " to the ministry" entered upon the draft. It
will thus be noticed that the proprietors did not define the term
" orthodox : " and it would seem that the phraseology of the gift
was purposely left undefined, for at a meeting of the seven
purchasers in 1692 it was thought best to assign it for the use
of the Presbyterians, but Jahleel Brenton, esq., argued that
it would damage their reputation in England, if they gave so
much to the Presbyterians and nothing to the Episcopal
Church; "and therefore," he said, "if you will be ruled by nie?
we will not express it to the Presbyterians, but will set it down
1o the ministry and let them dispute who has the best title to
it." Upon the interpretation of this word "orthodox" hinged
the whole subsequent controversy.

No one claiming these ministerial lands, Henry Gardner, in
1702, entered upon 20 acres of them and James Buudy upon

1 Douglass's Summary; Updike's Episcopal Church in Rhode Island, pp.
68-82; Rhode Island Historical Society Collections, III, pp. 123-130; Johns
Hopkins University Studies, Series IV, p. 124 ; College Tom, by Caroline
Hazard, pp. 82-85; Catalogue of the Prince Library. I regret that the
moving of the Boston Public Library made it impossible to examine the
Prince MSS. themselves.

APPEALS FROM COLONIAL COURTS HAZELTINE. 341

the remaining 280. In 1719 George, son of Thomas Mumford,
bought these 280 acres of Bundy.

Shortly after this transfer several inhabitants of the Narra-
gansett country petitioned the Bishop of London and the Soci
ety for the Propagation of the Gospel in Foreign Parts for a
missionary. Dr. McSparran was appointed as such in 1721,
and Mr. Gardner thereupon delivered to him the 20 acres of
which he had held possession since 1702. In 1723 Mr. McSpar
ran, upon a writ of ejectment, secured possession of the 280
acres held by Mumford, on the ground of the confirmation of
1079 and the survey of 1693, the original grant of 1668 being-
secreted. In two trials in colonial courts, however, McSparran
was defeated. He appealed to the King in council, but the
Society for the Propagation of the Gospel refused to lend its
assistance and the matter rested, Mumford keeping possession
of the property.

In 1732 a Congregational or Presbyterian church was formed
in Kingstown under Rev. Joseph Torrey as the " first incum
bent of ordination." Mr. Torrey at once laid claim to the whole
tract of 300 acres. He brought action against Gardner in the
colonial courts for the 20 acres, but was defeated. On Septem
ber 2, 1735, Torrey prayed the superior court for an appeal, in
this case to the King in council, but the court declined to grant
it. In 1732 he brought an action of ejectment against Mum-
ford for the 280 acres, but both the inferior and superior courts
decided in favor of Mumford. Upon Torrey's appeal to the
King in council these verdicts were disallowed and possession
of the 280 acres given in 1734 to the appellant. Upon advice
from England, Torrey, in 1735, conveyed this tract to six trus
tees, who in turn leased it to Eobert Hazard.

Dr. McSparran, the Episcopal or Church of England minis
ter, now brought an action against Hazard, as Torrey's tenant,
for the tract of 280 acres. In 1737 the original order of the
proprietors in regard to the church lauds, which had been
secreted, came to light, and Mr. McSparran, in behalf of him
self and successors in St. Paul's Church, by the advice of his
lawyers brought a new writ of ejectment against Hazard, as
tenant of the 280 acres. He was defeated in the colonial
courts, but was finally granted an appeal to England. Upon
a full trial before the King in council, that tribunal, on May
7, 1752, decided adversely to the claims of McSparran. The
decision of the superior court was sustained and the lands
confirmed to Dr. Torrey.

342 AMERICAN HISTORICAL ASSOCIATION.

Considerations other than pecuniary undoubtedly had much
weight in the progress of this controversy. The Society for
the Propagation of the Gospel had established many Episcopal
missionaries in the colonies, especially in those of the North;
and in this activity the Congregational ministry perceived an
intention on the part of the English Government not only to
spread the Episcopal faith, but to establish bishops among
them. It was these considerations which aroused the jealousy
of the other denominations; and before the close of the liti
gation nearly all of the Episcopal and non-Episcopal clergy
became involved in the controversy. Pamphlets were pub
lished on both sides which were not lacking in partisan ardor
or in bitterness, and even other colonies outside of Rhode
Island became deeply interested in the struggle. In a letter l
written to Dr. Torrey on July 14, 1739, Dr. Benjamin Colman,
of Boston, says that the general court of Massachusetts went
to the length of ordering " a Collection through all the Con
gregations in the Province and that the Moneys that shal be
collected be put into our Hands by the Subscribers for your
Service, in the further Support of your Defense against the
Suite which Dr. McSparran has so unjustly commenced ag*
you." The amount thus collected by Dr. Colniau amounted to
£747 8s. Other collections were received from Connecticut.
The controversy finally became not only acrimonious, but
destructive of any real progress in the spread of Christian
beliefs.

The decision by the King in council, however, was a triumph
of principle over the sectarian partialities of the members of
that tribunal. According to the law of England no one was
considered orthodox who was not attached to the Established
Church; but the King in council held that the term "ortho
dox," as used in this New England document, applied legally
to all who were sound in the doctrines of their own particular
church, irrespective ol denomination. It being determined by
the colonial jury that the grantors of the church lands belonged
to the Congregational or Presbyterian faith, the King in coun
cil decided that the intention of the donors, by the term "ortho
dox," was that the estate should be appropriated for the
support of the ministry of that denomination; and they so
decided, notwithstanding the fact that a clergyman of the
Church of England was the adverse party to the suit.

XMS. in private hands.

APPEALS FROM COLONIAL COURTS HALELTINE. 343

While there is no particular importance attaching to the
matters involved in Isaacs v. Merritt, this case will further
illustrate the practice of appealing quite as well as any other.
There is, nevertheless, some little interest in this appeal, for
the reason that it is one of the few cases of which we find
official record both in Rhode Island and in England. It is also
the only one of such cases among the documents of which we
find an appeal bond. The salient facts l in this case are here
given.

John Merritt, of Providence, brought action against Jacob
Isaacs, of Newport, in the superior court of common pleas for
Providence County, at the December term, 1755, for large dam
ages. At this trial Merritt complained that the defendant had
broken his u promise and assumption " made to the plaintiff.
He alleged that on April 14, 1743, Abraham Isaacs, of New
York, by his promissory note of that date, duly signed, became
indebted to him in the sum of £285, lawful money of New
York, together with the lawful interest thereon till the same
should be paid. Being so indebted, Abraham Isaacs died
intestate, and Hannah Isaacs, widow of the said Abraham,
became the administratrix of the estate. Hannah Isaacs dying
before she had fully administered the estate of her husband,
the administration of the residue was lawfully granted to the
defendant, Jacob Isaacs. But after the death of Abraham
and during the life of Hannah, he (Merritt)j at the October
term of the supreme court of New York in 1744, recovered
judgment on the said note against Hannah for the same, with
damages and costs amounting in all to £338 lid., to be paid
out of such goods and chattels as were possessed by the said
Abraham during his lifetime, when the same should thereafter
come to hand. After Hannah's death, Merritt was about to
sue the new administrator, Jacob Isaacs, on the aforesaid
judgment; but he (Merritt) agreed to forbear for a season the
prosecution of the suit, Isaacs paying him £100, part of the
sum for which judgment was given, and solemnly promising
to pay the remainder of the said sum, together with interest, in
a short time. Merritt therefore suspended prosecution on the
said judgment till October 1, 1754, when Isaacs had not yet
paid the remainder of the said sum, though often requested to.
For these reasons he asserted that Isaacs had broken his

1MS. records of superior court; MS. privy council register.

344 AMERICAN HISTORICAL ASSOCIATION.

promise, and claimed, as laid in the writ of September 18, 1755,
damages therefor to the amount of £6,000, current money of
New England.

Isaacs, on the other hand, alleged that he had never prom
ised to pay the aforesaid judgments in the manner and form
described by Merritt; that according to law such judgments
were to be paid by administrators out of the goods, chattels,
and credits of the intestate; that at the time of the purchase
of the plaintiff's writ, or since, there had not come into his
(Isaacs's) hands any other assets of the said intestate's estate
wherewith to satisfy the plaintiff's demands; and that this
was the reason why the remaining part of the said judgments
was still unpaid.

After due trial of this case, the inferior court of common
pleas decided that Merritt should recover from Isaacs £236
13s. Id., current money of New York, with costs of suit, amount
ing to £74 6s., Rhode Island currency. Isaacs appealed to the
superior court for Providence County, and at the March term,
1756, the decision of the inferior court was affirmed, with costs.
Isaacs then moved for an appeal to the King in council, Avhich
was granted. He complied with the law regulating appeals
to England, and furnished bond in the sum of £100 sterling.
Isaac Hart, of Newport, and John Cole, of Providence, were
the appellant's bondsmen; and the document was signed,
sealed, and delivered to the court in the presence of Samuel
Chase and Alexander Black.1

1 The bond is as follows:

liond to appeal to King in Council. — Isaac Hart and John Cole to John Merritt,
March Term, 1756.

Know all Men by these Presents That we Isaac Hart of Newport and
John Cole of Providence in the Colony of Rhode Island Merchants are
held and Bound to John Merritt of Providence aforesaid mentd in the Sum
of one Hundred pounds Sterling Money of Great Britain to be paid to the
said John Merritt or to his Executors Administrators or Assigns To. the
which payment well and truly to be made We bind ourselves our Heirs
Executors Administrators and Assigns and last of Us by himself for the
whole and in the whole and our and last of our Heirs Executors and
Administrators firmly by these presents Sealed with our Seals Dated the
Twenty Second day of March in the 29th Year of His Majestyes Reign
A D 1756

Whereas the above Mentioned John Merritt has now obtained a Judg
ment of our Superior Court of Judicature against Jacob Isaacs of Newport
in the County of Newport & Colony aforesaid Merchant As by the Record

APPEALS FROM COLONIAL COURTS HAZELTINE. 345

The case was finally brought before the King in council tor
adjudication. On February 17, 1758, or nearly two years after
the granting of the appeal by the superior court, the privy
council reversed the decision of that tribunal, and thus ren
dered a judgment in favor of the appellant.

We have now reviewed as fully as possible within the limits
of this paper the processes of appeal in the various colonial
courts. Occasional references have necessarily been made to
the King and privy council, but the account as thus far given
must be supplemented by at least a few words in regard to
the privy council as an English institution and by a brief his
torical consideration of the procedure of the King in council
as the supreme court of the colonies.

Although appeals were first adjudicated by the King and
his privy council in the latter part of the sixteenth century,
the council itself had an existence at least four centuries prior
to that period. In the early days it was called the Concilium
Regis Privatum, the Concilium Continuum, and the Concilium
Secretum Regis. At a later period it was known simply as
the council board and the privy council. The King sat with
these privy councilors at his own pleasure, and their chief
duty was to advise the Crown to the best of their " cunning
and discretion." The number of privy councilors was also
regulated according to the King's will. In ancient times, and
even as late as the reign of Edward III, there were seldom
more than fifteen.1 Among them were the treasurer, the chan-

of said Court appears and Jacob Isaacs being agrieved therewith Appeals
to His Majesty in Council in Great Britain from the Said Judgment of the
aforesaid Court of Judicature now sitting in providence aforesaid.

The Condition of the above written obligation is Such that if the above
mentioned Jacob Isaacks Shall & Do within Twelve Months and a Day
from the date hereof well & truely prosecute his Said Appeal with effect
or in Default thereof well and truely pay & Satisfy the Said John Merritfc
His Heirs Executors Administrators & Assigns all such Costs and Dam
ages as they or any of them Shall have & Sustain in Defending against
the aforesaid Appeal then this present obligation to be void & of no Effect
or Else to be and Remain in full force and virtue

I. HART [SEAL]

JOHN COLE [SEAL]

Signed Sealed & Delivered in the presence of—
SAM CHACE
ALEXK BLACK

1 Crabb's History of English Law, p. 217.

346 AMERICAN HISTORICAL ASSOCIATION.

cellor, and such other persons learned in the law and judicial
matters as the King saw fit to appoint. After Edward's time,
however, the number so increased that it was found impossible
to transact the King's affairs with secrecy and dispatch, and
Charles II, in 1G79, limited it to thirty. Of these, fifteen were
to be the principal officers of state and were to be councilors
by virtue of their official position; the remaining fifteen were
made up of ten lords and five commoners. After Charles's
time the number of councilors was again much increased, and
finally became indefinite. The president of the council Avas
the third great officer of state. The duty of president was
something more than that of a privy councilor, for he reported
to the King whatever occurred at the council table in his
absence.

On February 20, 1627, the privy council, sitting at White-
hall? passed certain orders1 to be observed in meetings of the
council as a tribunal of justice. As far as we can ascertain
these orders formed the first official provision in regard to
the method of transacting the judicial affairs of the council.
Although the records do not so specify, there can be no doubt
that colonial appeals were adjudicated according to these reg
ulations. The orders are as follows :

I. Ill the term times, the councillors, of ordinary course, are to sit on
Wednesdays.

II. When any causes are handled, and partys heard speak on both sides,
the Lords are, "by questions or otherwise, to inform themselves of the
truth of the matter of fact, but not to discover any opinions till all be
fully heard.

III. When any cause is fully heard, the partys are then to retire, and
the Lords to debate alone, and if any variety of opinions continue, Avhich
cannot be reconciled, then the Lords are to vote it severally, if it be
demanded; and the Lord President, or one of the principal secretarys, if
the Lord President be absent, is to take the votes.

IV. In voting of any cause, the lowest councillor is to begin and speak
first, and so it is to be carried by most voices ; because every councillor
hath, equal vote there : and when the business is carried by the most
voices, no publication is afterwards to be made, by any man, how the
particular voices and opinions went.

V. Upon the petitions of suitors, the clerk of the council who then
waits, shall set a note, when the petitions were exhibited, that the Lords
may thereby see how the suitors stand in seniority, and, according to that
and other necessity of occasion, they may be despached, wherein respect

lFor these orders and other official provisions in regard to privy council
procedure, noted in the following pages, see Macqueen's Appellate Juris
diction of the House of Lords and Privy Council.

APPEALS FROM COLONIAL COURTS HAZELTINE. 347

is to be had to the poorest petitioners, that they be not wearied out with
over long attendance.

VI. At every council, before the Lords rise from the board, the Lord
President, or one of the principal secretarys. in his absence, is to signify
to the Lords what business of the day do remain, and to take their reso
lution with which to begin the next sitting, if greater occasions intervene
not.

VII. \Vheu any order is agreed upon, the clerk of the council attending,
shall take notice thereof in writing, and punctually read, openly, how he
hath conceived the sense of the board, that if anything be mistaken, it
may then be reformed ; and afterwards when the clerk shall have drawn the
said order at large, in any cause of importance, before he enter the same
into the council books, or deliver it to any person, whom it may concern,
he is to show the draught to the President, or, in his absence, to one of
the secretarys of state, to be allowed and signed under one of their
hands, before the entry and delivery thereof.

OIL July 22, 1664, it was ''ordered that the clerks of the
council do take care for the future, that all petitioners who
shall exhibit any petition to the board, do first sign the same."
While this order refers to " petitions," regular judicial appeals
were included within its provisions. It has already been
observed that the council and other courts of the time did not
always make a careful distinction between a petition and an
appeal, and that an appeal was often presented to the consid
eration of the council by means of petition.

In 1667 the council passed two orders in regard to its pro
cedure in judicial affairs. On January 31 of that year stand
ing committees of council were established and provisions made
for their regulation. Additions to this order soon became nec
essary, and on February 12 a second decree was passed. This
order recites that —

His Majesty, having among other the important parts of his affairs,
taken into his princely consideration the way and method of managing
matters at his Council-board and reflecting that his Councils would have
more reputation if they were put into a more settled and established
course, hath thought tit to appoint certain standing committees of the
Council for several businesses: together with regular days and places for
their assembling, in such sort as followeth : — A committee for the business
of trade, under whose consideration is to come whatsoever concerns his
Majesty's foreign plantations, as also what relates to his kingdoms of
Scotland or Ireland, in such matters only relating to either of those king
doms a properly belong to the cognizance of the Council-board, the isles
of Jersey and Guernsey which is to consist of the Lords Privy Seal, Duke
of Bucks, Duke of Ormond, Earl of Ossory, Earl of Bridgwater, Earl of
Anglesey, Earl of Lauderdaill, Lord Arlington, Lord Holies, Lord Ashley,
Mr. Comptroller, Mr. Vice Chamberlain, Mr. Secretary Morice, Sir William
Coventry j the usual day of meeting to be every Thursday in the Council-

348 AMERICAN HISTORICAL ASSOCIATION.

chamber, and oftener, as lie that presides shall direct; and hereof three or
more of them to be a quorum. And it is further ordered that this com
mittee calling unto them his Majesty's Attorney-General or else his
Majesty's Advocate do henceforward hear all causes that byway of appeal
come from the isles of Jersey and Guernsey. The orders whereupon being
in due form prepared by the Clerk of the Council are, before they are
signed, to be read at the Council-board, and there approved of, so that
they may receive the approbation and authority of the whole Council,
which before used to pass distinctly from the Committee only by a deriva
tive power from the Board.

The system as thus outlined continued until January 27,
1687, when it was ordered that not only a certain number, but
all of the lords of the privy council be appointed a standing
committee on trade and foreign plantations. But it appears
that this return to the early method of adjudicating appeals
did not result successfully. A further change, therefore, be
came necessary, and on December 10, 1696, an order was passed
which recites that—

His Majesty having this day taken into his Royall consideration the
matter of hearing appeals from the Plantations, is pleased to direct and
order in councill that all appeales from any of the Plantations be heard
as formerly by a committee, who are to report the matters so heard by
them, with their opinion thereupon, to his Majestic in couucill. And in
order thereunto his Majestie did declare his further pleasure, that all the
Lords of the councill, or any three or more of them, be appointed a com
mittee for that purpose.

It will be noticed that under the provisions of this order all
of the lords of the council might still act as a committee on
hearing appeals from the colonial courts. But whatever the
number of privy councillors serving on this committee, whether
the whole council or only three members, it had only a com
mittee's powers and was required to make its report to the
council itself.

A brief reference must now be made to the manner of pre
senting colonial appeal cases before this committee.1

According to an order of October 31, 1689, it was declared
that thereafter " there be not admitted above two council to
be heard on a side in any cause at this board, and but one
allowed on each side for reading such evidences and proofs2
as there shall be occasion to make use of."

'A committee with simi]ar functions is now (1895) known as the Judi
cial Committee of the Privy Council.

2 Copies of records and other proceedings were brought from the colonies
when appeal cases were adjudicated by the King in council.

APPEALS FROM COLONIAL COURTS — HAZELTINE. 349

It appears that prior to 1727 the meetings of the committee
were frequently put off' because of the failure of counsel to be
present and argue their cases. Delays were thereby caused
which resulted in the obstruction of justice and the detriment
of the suitors. To stop this practice the lords of the commit
tee, on January 18, 1727, ordered that—

When a day shall be appointed to hear any appeals or complaints either
from the plantations or from the Isles of Jersey and Guernsey, or for any
other cause or causes depending before this committee, such pretence of
want of counsel shall not be allowed of us as a reason to defer the hearing
thereof. Whereof all persons concerned in soliciting causes before this
committee are to take notice and govern themselves accordingly.

On March 10, 1730, the King in council passed an order
which recites that —

Whereas a practice hath of late been introduced by parties who have
causes depending before the council, to print and deliver a state of their
case to every privy councillor at the time of hearing of the said causes,
which printed cases have not been signed by any counsel learned at law.
And whereas the same hath been represented to his Majesty at this board
as a very irregular and improper way of proceeding: His Majesty this
day took the same into his royal consideration, and being desirous to pre
vent the like practices for the future, is hereby pleased, with the advice
of his Privy Council, to order that no person whatsoever do presume to
deliver any printed case or cases to any Lords of the council, or any com
mittee thereof, unless such case or cases shall be signed by one or more of
the counsel, Avho shall attend at the hearing of the cause.

Furthermore, when causes were argued upon printed points,
or heads of argument, which were handed up to the members
of the committee as j udges, the rule was to pass a copy to the
counsel of the adverse party. It was usually customary for
the counsel to note on the margin of this copy his own stric
tures upon the argument of his opponent, and to use the copy,
with these marginal notes, as a minute by which to reply to
the line of argument therein contained. Sir John Strange
and Sir Dudley Eider used these printed points in arguing the
case of Phillips v. Savage in 1738.1

On April 21, 1746, it was ordered by the lords of the com
mittee of council for plantation affairs that "when appeals
or other causes are put upon the list of business for hear
ing before this committee, that the party or parties at whose
request such appeal or cause is set down, shall be in readiness
to be heard whenever their Lordships shall appoint a day."
An additional order was passed by the lords of the committee

1 Massachusetts Historical Society Proceedings, 1860-1862, p. 167.

350 AMERICAN HISTORICAL ASSOCIATION.

011 July 9, 1751. It stipulates that when "the said appeals or
causes shall have been so put upon the list of business for
hearing, the same be heard in the course they are so set down,
without any further notice, order, or direction of the commit
tee for that purpose."

It is plain that the method of procedure was a careful one.
Every appeal [ was referred to the privy council's committee on
plantation affairs, and before the lords of this committee the
case was carefully and fully tried. But the lords of the com
mittee did not always rely upon their own judgment alone.
They frequently referred cases to the lords commissioners
for trade and plantations; and these commissioners, in turn,
often sought the advice of the attorney and solicitor general.2
Reports were then returned from board to board until the
committee 011 plantation affairs made its report to the Xing
and the entire council. The council's advice upon the report
was -then obtained, and the King, acting upon this advice,
issued the final decree in the form of an order in council, either
affirming, reversing,3 or otherwise revising the decision of the
colonial court. In conclusion it need only be said that dur
ing the period with which we have been concerned in the
present inquiry, the King in council was a tribunal well
adapted for the adjudication of colonial appeal cases. Not
only its personnel, but its very procedure insured justice to
both appellant and appellee. Certainly no other English insti
tution of the time could have exercised more adequately or
satisfactorily than did this "honorable and reverend assembly
of the King and his privy council" the functions of a tribunal
with appellate jurisdiction over the courts of Rhode Island and
the other American colonies. It was a noble predecessor of a
still nobler tribunal, the Supreme Court of the United States.

1 Either in chancery or in common law.

2 Douglass's Summary, I.

3 After the report of the committee, affirming or reversing the judgment
appealed from, had been confirmed by the King in council, a rehearing was
not granted. In Perm v. Lord Baltimore, on a petition by the plaintiffs for
a rehearing, the committee reported that there was no instance of rehearing
on an appeal, which would be mischievous, unless on some very particular
circumstances, such as the discovery of new evidence or fraud ; and the
petition was therefore rejected. (See Burge's Colonial Law, I, Introd., p.
Ixxvii.)

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