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Full text of "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 said 2 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 colony 3 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. 

4 See 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. 

5 Macqueen, 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 asserts 4 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 council 7 
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. 
2 Ib., 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 tournois 1 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 Chamber 2 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. 
3 Ib., 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 afors d ) 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 Eng d 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, u to 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, affirms 1 
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 statements 3 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. 
2 Macqueen, 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 



I 0n 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 
act 4 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 case 7 
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. 

2 Durfee 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 enacted 2 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 enacted 3 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. 
3 Ib., p. 17. 

4 Ib., 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 plantations 3 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. 

2 Ib., Ill, p. 548. 

3 Ib., Ill, p. 543. 

4 Ib., 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 representation 2 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 assembly 1 
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 litigation 1 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. 

X MS. 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 



1 MS. 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 ment d 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 
ALEX K 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 orders 1 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 



l For 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 proofs 2 
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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