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COLONIAL APPEALS TO THE PRIVY COUNCIL. II

In the preceding portion of this paper,¹ the rules governing appeals from the North American colonies to the king in council were stated, as set forth in orders in council, colonial charters and acts of colonial legislatures. Denials of the right of appeal were then examined. The following pages deal with obstruction of appeals by hostile legislation, by evasion and by disregard of decisions; procedure on appeal; and cases carried to the Privy Council in which the validity of colonial enactments was subjected to judicial determination.

In general, colonial statutes were not inimical to the principles of the appellate system, and they apparently never went to the extremity of denying the right of appeal. The nearest approach to an attempt at legislative obstruction is to be found in acts passed by the General Court of Massachusetts. The charter of 1691 provided that “personal actions” were appealable to the king in council and did not mention any other kinds. The fair presumption seemed to be that other classes of actions were not subject to appeal. Willingly assuming this interpretation, the General Court in November, 1692, passed an act for establishing judicatories, which repeated the charter phraseology of personal actions” and added the words: “(and no others).” This act was thereupon disallowed by the Privy Council, on the ground that it perverted the meaning of the charter. Acts of 1693 and 1697, containing a similar wording, met a like fate and finally the law of 1699 omitted all reference to appeals.² Apparently no further attempts were made by the General Court to give statutory force to their interpretation of the charter. However, agitation still continued, and the Massachusetts courts repeatedly denied appeals to the king in council, presumably on the ground that they were other than personal actions. As late as 1743, the

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General Court presented a petition to the Privy Council, praying that judgments given in courts of the province upon any real or mixed actions might be final and that no appeals be allowed to the king in council therefrom; but nothing came of the petition.¹

Cases of evasion were not infrequent. According to a representation sent to the Board of Trade in 1715 by the king’s orders, it was averred that “in many cases where . . . Governors ought to allow appeals, they frequently refuse them, pretending that the Land, Estate or Negro Slaves sued for are not of the value of £500, tho’ they are worth much more.” In such cases, the representation continued, appeals could be made to the king in council by petition, but this subjected the petitioners to two or three long Voyages, with great hazard, expense and loss of time, before they can obtain Justice.” ² This statement was made in reference to the insular as well as to the continental colonies, but it was probably as true of the one set as of the other. Mr. H. D. Hazeltine finds, after studying the situation in Rhode Island, that

without doubt, the power assumed by the Assembly of chancerizing 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 decision. If the Assembly anticipated that an appeal might be demanded from its decision, it could chancerize the damages to a point below the sum required for an appeal to the King in Council.³

But without an exhaustive study of abundant source material, it would be difficult to say how widespread this practice was.

Of neglect to give effect to the decisions of the King in Council, the published records of the Privy Council show very few examples. A conspicuous instance was the appeal of Leighton v. Frost from the superior and inferior courts of Massachusetts Bay in 1735.⁴ The case involved a bitter controversy

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between William Leighton, who was employed to fell trees upon public lands for use in the royal navy, and John Frost who charged that Leighton had cut down trees on land owned by him and had thus violated a law of the province. The Massachusetts courts declared against Leighton, awarded damages against him and refused him the right of appeal to the king in council. Leighton petitioned the Privy Council for the privilege; on July 9, 1735, his petition was granted; and on April 29 of the following year the king in council rendered a decision, reversing the judgments of the Massachusetts courts, and ordered that the money which the appellant had paid should be restored to him and directed a new trial, under certain specified circumstances, with the liberty of a second appeal to England.

In September, 1736, Leighton’s attorney produced the order before the Superior Court of Massachusetts where it was publicly read and ordered to be recorded. After delaying for two years upon various pretexts, the court declared in June, 1738, that it had no authority to give an order for an execution against the appellee (Frost), for such would be contrary to the charter, the laws of the province and the constant usage of the court. Leighton thereupon applied to Governor Belcher for

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enforcement of the order in council; but in September Belcher declared, after conference with his council, that since the superior court had refused to act and no application had been made to him until after the decision of the superior court, it was not proper for him to do anything in the matter. Leighton now sought redress of the Privy Council. After due deliberation in committee, the Privy Council on March 22, 1739, directed that the order in council of April 29, 1739, be “forthwith and without delay carried into execution;” that Frost should immediately restore the money paid to him, and that the superior court should “take the necessary Steps to Compell him thereto.” The inferior court was also required to pay “due Obedience “ to the earlier order in council as well as the present one; and the governor was ordered to support the royal authority and to cause every particular herein contained to be without delay duly and punctually complyed with.”

This peremptory order apparently afforded little opportunity for evasion; yet the superior court in passing upon the matter on June 26 felt no compunctions in declaring: That they have no authority by any Law of the province or usage of this Court to order such an Execution. And the Provision made in the Royal Charter respecting appeals to his Majesty in Council does not, as they apprehend, warrant any such Execution.” Here the matter is lost sight of until March, 1743, when David Dunbar, surveyor-general of his majesty’s woods in America, presented to the Privy Council a memorial which set forth that the order in behalf of Leighton had not yet been executed. Dunbar apprehended that if an order in council should be immediately sent to Governor Shirley, the present executive, to enforce the former order it would have so good an effect as to deter others from attempts of the like kind.” In line with this suggestion, on June 21, 1743, the clerk of the council addressed a letter to Shirley, inclosing copies of the two former orders, with instructions that “in case the said Orders have not been already carried into Execution, the same to be Complyed with forthwith and without further delay.” He was further ordered to keep the king in council informed as to the progress of affairs.

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Therewith, the matter disappeared from the Privy Council records. More than seven years had elapsed since the original order in council, and no efforts had been made by the Massachusetts authorities to execute the decree. As a result of laxity in enforcement, the enactment of the king in council had been nullified and the judgment of the provincial courts made supreme. This case, however, is not to be regarded as typical. It was only in isolated instances that such disregard of decisions impaired the efficiency of the appellate system.

III

The general lines of the appellate system have been indicated; its actual and intimate working remains to be considered. In order to make the description complete, the features of many different appeals have been assembled.

A litigant, dissatisfied with the decision of the colonial court, might request of the court an appeal to the king in council. If permission for an appeal were granted, the appellant was free to prosecute his appeal before the Privy Council, in the manner to be described later. If such permission were denied by the colonial court, he petitioned the Privy Council that his appeal be admitted and heard. The Privy Council, after reference to the Committee for Appeals (or “the Committee”), usually granted such a petition; in some cases this was done even when the one-year period, allowed for making appeals, had elapsed¹ or when the necessary minimum value was not involved in the case.² An appeal might also be provisionally admitted, if the Governor and Council there have no other legal objection thereto.”³ The Privy Council rejected the petition on such grounds as the following: the sum involved was less than £300;⁴ the petitioners had not “applied for a review “ in the colony;⁵ the proceedings in the colonial courts were erroneous and illegal.⁶ After an appeal was admitted, the Privy Council referred it to the Committee for Appeals, who upon occasion directed the colonial court to transmit copies of all the proceedings⁷ and, in

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some cases, their reasons for refusing to admit the appeal.¹ In addition (as in a Massachusetts case), the colonial. governor might be ordered to see that “all Persons be permitted without Interruption to give Evidence, or discouragement to any to give their Testimony in behalfe of the Appellant.”²

When the proceedings had been duly transmitted, the appellant petitioned the Council for “a short day” for hearing his appeal. Upon receiving this petition, the Council referred it to the Committee for Appeals, who fixed a date for examining the case. Upon hearing the case, the Committee reported back to the Council, who, any time within a month or five weeks or less, invariably accepted the report and enacted it, with the assent of the sovereign, in the form of an order in council. This order in council might affirm the colonial decision or reverse it or vary it, and was usually accompanied with an award of costs against the unsuccessful litigant. An order in council might dismiss an appeal because the petitioner had not appealed from the inferior court within the time limit,³ or because the counsel for the appellant refused to offer further evidence when certain of his evidence was ruled out⁴ or for other reasons. The orders, reversing or varying a colonial decision, were frequently accompanied with permission or instructions for a retrial.⁵

If, after the Privy Council had admitted an appeal, such appeal were not prosecuted within twelve months’ time, it might be, and frequently was, dismissed for non-prosecution.⁶ On the other hand, if the appellee failed to enter an appearance within a year after the appeal was in the hands of the Privy Council, the appellant could secure a hearing ex parte. A warning, requiring all persons to attend, was first given by “a summons sent upon the Exchange” or other suitable place, such as, in one case, the Maryland Coffee House,⁷ in another, the abode of the appellee in Christchurch parish, South

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Carolina.¹ In either case, it was usual to mulct the unsuccessful litigant in a small sum as costs. Delays were frequently caused by parties professing to be unprepared or by the failure of counsel to appear; and in these cases, too, costs were sometimes awarded, and in especially glaring instances, a date was “peremptorily” fixed for the postponed hearing.²

In the eighteenth century, the effective nucleus of the Privy Council for the adjudication of appeals is spoken of by the Privy Council records as “the Committee for Appeals” until 1734 or 1735, after which it is referred to simply as the Committee.”³ The first order regulating the make-up of this committee was that of December 10, 1696, which provided that all appeals from the plantations should be heard, as formerly, by a committee which should make a report thereon to the king in council. Such committee should be composed of all the members of the Council or any three or more of them.⁴ Later orders in council of 1727 and 1761 repeated substantially the regulation of 1696.⁵ Evidently, then, the membership of the committee was an unstable one, varying according to circumstances from a body of three to a committee of the whole.

An order in council of September 20, 1727, declared that in prize cases a committee of a similar make-up should hear appeals either from the courts of admiralty of Great Britain or from those of the American plantations.⁶ An order of November 23, 1761, however, specified that this committee should be composed of all the Lords and others of His Majestys most Honourable Privy Council, The Chief Baron of His Majestys Court of Exchequer, the Justices of His Majestys Courts of King’s Bench and Common Pleas, and the Barons of the Court of Exchequer . . . or any three of them.”⁷ It seems probable

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that a committee of similar make-up heard appeals from the plantations, whether the appeals concerned prizes or not.

No description is at hand of the manner in which appeal cases were heard by the Privy Council committee; but the procedure was no doubt much the same as now prevails in England. Various regulations of the procedure may be found scattered through the Privy Council records; these were de-signed for the most part to make the hearing of cases as expeditious as possible.¹

IV

Three of the cases which reached the king in council from the colonial courts involved the validity of colonial statutes.

The first case was that of Winthrop v. Lechmere.² In November, 1692, Massachusetts passed an act for the settlement and distribution of the estates of intestates. In 1699, Connecticut enacted a somewhat similar law, according to the provisions of which the real estate of an intestate was divided equally among his children, except that a double portion was given to the eldest son. These laws sanctioned a custom which had prevailed in New England from the earliest times, but they were at variance with the English common law, according to which the eldest son was the sole heir and was entitled to the whole estate exclusive of all the other children. In 1717, General Wait Winthrop, son of Governor John Winthrop of Connecticut, died intestate, leaving two children: John Winthrop, and Ann, the wife of Thomas Lechmere of Boston, the respondent in the appeal. The landed estates of the decedent in Connecticut were large; and on February 21, 1718, the ad-ministration of them was committed to John Winthrop. Winthrop claimed all the real estate as his own, holding that he was

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General Winthrop’s sole heir under the common law of England, and that the Connecticut statute of 1699, by which he would be entitled to two-thirds and his sister to one-third of the estate, was invalid because contrary to the law of the superior dominion.

Winthrop continued to hold the entire estate; and in July, 1724, Thomas Lechmere, the husband of Winthrop’s sister, applied to the court of probate of Connecticut, claiming for his wife a proportion of the real estate left by General Winthrop. After nearly two years of litigation in the courts of the colony, the superior court on March 22, 1726, caused the letters of administration granted to Winthrop to be vacated and appointed Lechmere and his wife administrators of the estate. Winthrop prayed for an appeal to the king in council, but his petition was denied. At the next session of the General Assembly, he presented a memorial to that body and declared that he would appeal to the king in council. His petition being peremptorily dismissed by the Assembly, he entered a vigorous protest; and, in accordance with his threats, he presented his case to the king in council by petition, claiming that the Connecticut law was contrary to the common law of England and to the colonial charter. In February, 1727, his appeal was admitted, and in December the case was tried before the Committee for Appeals. On February 13, 1728, a decree, issued by the king in council, declared the Connecticut statute null and void because it was “contrary to the laws of England . . . and not warranted by the charter of that colony,” and reversed the decisions of the Connecticut courts, thereby giving the whole of the real estate to John Winthrop.

Disrupting, as it did, the agrarian system which had prevailed in Connecticut from the beginning of its history, and thus affecting every person in the colony, the order caused great alarm.¹

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But not alone in Connecticut was there consternation at this sudden unsettling of established conditions. Other New England colonies, with intestate laws and practices similar to those of Connecticut, did not know how soon their systems also would be subverted by the home government. The issues presented by this case were so important to all of the colonists that the government of Connecticut at once made active and determined efforts to secure a reversal of the decision.

While negotiations were yet pending for effecting this end, a Massachusetts case, similar to Winthrop v. Lechmere, was carried to the king in council. This was the case of Phillips v. Savage.¹ In 1729, Henry Phillips of Boston died intestate, survived by his mother, one brother, two sisters (one the wife of Habijah Savage and the other the wife of Arthur Savage), and the children of a deceased sister. Administration on his estate, appraised at £3950, was granted on July 17, 1730, to his brother, Gillam Phillips. On May 15, 1733, the judge. of probate of Suffolk county confirmed .in probate court the action of a board of referees in making a partition of the estate in five equal shares among the mother, brother, sisters and deceased sister’s children, the latter taking their mother’s share. On October 18, 1733, Gillam Phillips appealed to the governor and council from the decree of the probate court, which he insisted was wrong because he, as the only brother of the deceased, was sole heir according to the common law of England. On November 2, the case was heard before the governor and council, and this tribunal upheld the decree of the judge of probate. In the following November, Phillips petitioned the governor and council for leave to appeal to the king in council, but the petition was denied. However, an order in council of February 12, 1734, permitted him to appeal from the various judgments of the provincial courts; and the case was tried before the Committee for Appeals of the Privy Council on January 13 and 16, 1738. Although the appellant was represented by the distinguished Sir Dudley Rider (afterwards lord chief justice of England

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and the immediate predecessor of Lord Mansfield) and a lesser associate, John Brown, and although the case of Winthrop v. Lechmere was quoted as a precedent, the king in council on February. 15, 1738, issued an order upholding the decrees of the Massachusetts courts and dismissing the appeal. The respondents had been ably represented by Sir John Strange, afterwards master of the rolls, and Jonathan Belcher, son of the governor of Massachusetts and a Harvard graduate.

The question at issue in both of these cases was identical the validity of the colonial statute and there can be no doubt that the laws respecting intestate estates in both Connecticut and Massachusetts were contrary to the common law of the realm. But the king in council decided differently in the two cases. The reason for this apparent change of front lay in the circumstance that the Massachusetts law in question, together with an amendment passed the same year, had been affirmed by an order in council of 1695; and this fact, which would have been sufficient in itself, was reinforced by the fact that several explanatory acts, of 1710, 1715 and 1719, had not been disallowed by the crown and that a supplementary act, passed as late as 1731 , had received the royal confirmation. The charter of 1691 provided that a law, not disallowed within three years after passage, should continue in full force until its expiration or its withdrawal by the General Assembly. Thus, this provision of the charter placed the intestacy law out of reach of an order in council, which was of a legal value inferior to the royal charter. In the case of Connecticut, whose laws did not come before the crown for approval or disallowance, and whose charter expressly declared that no laws of the colony should be “contrary to the laws of . . . England,” the Privy Council was unembarrassed by any previous confirmation of the law in question. This difference in the situation of the two colonies ac-counts for the. difference in the decisions.

The decision of the king in council in the Massachusetts case greatly encouraged the people of Connecticut in their efforts to secure the reêstablishment of their intestacy law. Ever since the Winthrop v. Lechmere decision, strenuous efforts had been made by petition to the home government to secure the reëstablishment

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of the law, or at least the confirmation of what had been done by the probate courts prior to Winthrop’s appeal. The Connecticut case had been a private one and the colony had not been heard in the matter. There can be little doubt that the respondent, Lechmere, was inadequately defended, that his evidence was far from complete and his purse far from full. Winthrop, on the other hand, was ably represented by Attorney-General Yorke and Solicitor-General Talbot.

The opportunity of presenting the law to the king in council for a second judgment upon its validity came in another private appeal case, Clark v. Tousey.¹ In 1737, Samuel Clark of Milford appealed to the king in council for the recovery of certain lands in Connecticut, which he demanded as heir at law according to the English laws of descent but which, in accordance with the legal procedure of the colony, had been settled upon himself, together with Thomas Tousey, of Newtown, and Hannah, his wife, and four other defendants. The order in council of May 25, 1738, admitting the appeal, failed to reach Clark, and thus he did not prosecute his appeal within the time limit. Meanwhile he continued litigation in the Connecticut courts, but without success; and on May 17, 1742, a second petition for appeal to the king in council was granted by that tribunal. In the same month, the appellee, Tousey, appeared before the Connecticut General Assembly and stated that he was obliged to go to England to defend his suit. “Considering that almost all the inheritances in this Colony are dependent upon the settlement of intestate estates according to our ancient laws and customs, which, if they should be overruled and made void, would reduce the inhabitants to the utmost ruin and confusion,” the Assembly voted that the sum of £500 should be loaned to Tousey to aid him in the suit.² In the following October, Eliakim Palmer, the colonial agent, was instructed to employ solicitors in Tousey’s defense and to assist further in any way possible.

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As a result of personal pressure and of a recognition of the injustice of enforcing the customary law of one country on another country, where the agrarian and economic life had brought into existence a customary law very different, the king in council was finally induced to render a decision which was probably based more largely on political grounds than upon purely legal considerations. One especially potent argument, which was pressed from Connecticut again and again in correspondence with the home government, was the assurance that, if so many people in the colony were dispossessed of lands, the younger sons from sheer necessity would turn to trade and manufacturing, or otherwise be obliged to leave the country.¹ These combined efforts to secure a reversal of the Privy Council’s former decision were successful. Clark’s appeal was dismissed by an order in council of July 18, 1745, and the validity of the act of 1699 was finally established.

It should be noted that these cases were not considered of great constitutional importance at the time. In the popular mind, the power exercised by the king in council through the medium of these private appeal cases was closely allied to the power of that tribunal to disallow colonial statutes. The chief solicitude of the colonists lay in the fact that the disallowance of their land laws would entail “ruin and confusion.” The attorneys for Savage, in Phillips v. Savage, impliedly conceded in their argument that the king in council had the right to deny judicially the validity of a provincial statute, but they argued that the law in question had been placed beyond the crown’s reach by an earlier confirmation. Even in the Connecticut cases, the constitutional question of interest to the present-day student of law was obscured by two other constitutional questions; ’ for Connecticut’s opposition to the appellant, Winthrop, was based principally upon her general disinclination to recognize the appellate jurisdiction of the king in council and upon her unwillingness to have any of her laws acted upon by the home government. Her acquiescence in the Winthrop v. Lechmere decision, though under protest, was an acknowledgement

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of the power of the king in council judicially to disallow her laws; and the colony did not regain her peace of mind until the same agency which had set aside her law, i. e., an order in council in a private appeal case, had established its validity.

Besides the three cases mentioned, there may have been others of a similar character which the imperfect entries in the Privy Council records fail to disclose. Certain it is that the principle involved received a more or less general acceptance during colonial times; and as late as August 19, 1760, it was expressly enunciated by the law officers of the crown.¹ In an opinion rendered by Attorney-General Pratt (afterwards Lord Camden) and Solicitor-General York on the crown’s power of disallowing laws, it was declared that there may be laws

in which particular provisions may be void ab initio though other parts of the law may be valid, as in clauses where any act of Parliament may be contraversed or any legal right of a private subject bound without his consent. These are cases the decision of which does not depend upon the exercise of a discretionary prerogative, but may arise judicially and must be determined by general rules of law and the constitution of England. And upon this ground it is, that in some instances whole acts of assemblies have been declared void in the courts of Westminster Hall and by His Majesty in Council upon appeals from the plantations.

An examination of the appeals mentioned in the Privy Council records and elsewhere brings to light some interesting facts, although the fragmentary character of the entries and the frequent neglect of the clerks to include important data leave open to question any conclusions based upon these facts. Between 1680 and 1780, the most significant period of the operation of the appellate system, 265 cases reached the Privy Council from the continental colonies of England.² This was an average of

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five appeals for every two years. The greatest number of cases, 78, came from Rhode Island; Virginia was next, with 53; Massachusetts was third, with 44; and New York fourth, with 21. From Maryland 15 cases were appealed; from Pennsylvania, 13; from New Jersey and New Hampshire, 12 each; and from Connecticut, 9. North Carolina, South Carolina, Georgia and the Lower Counties were represented by only two appeals each. In the course of the eighteenth century there was a perceptible increase, year by year, in the number of appeals; but this increase was apparently not out of proportion to the growth of population. Of the total number of 265 appeals, 50 were admitted by the Privy Council upon petition. In other words, in nearly one-fifth of the total number of appeals, the colonial courts had refused the liberty of appeal to the aggrieved party.

An effort has been made to ascertain whether, as is commonly alleged, the value of the appellate system was seriously impaired by the length of time which was required to obtain from the king in council the determination of appealed cases. For this purpose 140 cases were selected at random, dismissals for non-prosecution not being included. The significant time measurement was deemed to be the interval between the first

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appearance of an appeal upon the Council records and the issue of an order disposing of the case. The average for the 140 appeals was twenty-two months, which compares favorably with the record of the United States Supreme Court.¹ More than one-third (49) of the cases were adjusted in a year or less; three appeals required more than six years, one of them taking almost twelve years. Dismissal of appeals for non-prosecution was found to occur within three months after the petition for such dismissal was filed.

A little less than one-half (126) of the total number of appeals resulted from litigation over real estate. This proportion was to be expected in a new country where the titles to land were not yet definitively settled. Approximately one-fifth (7) of the appeals arose from suits for accounts, debts and the like. One-seventh (38) of the appeals involved infractions of the Acts of Navigation and Trade or arose from the adjudication of prize cases. The rest of the appeals were of a miscellaneous character. By far the greater proportion of the cases appealed were cases of private law and involved nothing but private rights.

The king in council reversed the colonial courts 76 times and affirmed their decisions 57 times. From these figures it would seem that the king in council acted impartially and that the appellant could not rely upon any presumptive bias of that tribunal against colonial decisions. In 77 cases no decision is re-corded; 45 cases were discharged for non-prosecution. Only eleven appeals are noted in the records as having been heard ex parte.

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In conclusion, a few words should be said regarding the merits of the appellate system in general. The importance of the system should not be overemphasized. In the first place, the number of cases appealed was comparatively small; and the minimum amount that must be involved in order to make a case appealable tended to impair the usefulness of the system. Thus, a representation, presented in behalf of the king to the Board of Trade in 1715, declared, in reference to the English plantations in America, that the instructions of 1689 requiring a minimum value of £500

covered the Governors and Courts from an Inspection into their conduct in all cases of less value , thereby giving them the ultimate Jurisdiction in all other cases. And whereas most of the Suites amongst them concern Traffic, and not one in fifty [is] of so great a value, their power was made absolute in all the rest. This has subjected the people to many grievous wrongs . . .¹

Secondly, some of the colonies were much more affected than others by the appellate jurisdiction. North Carolina, South Carolina, Georgia and Delaware escaped with practically no supervision whatever. Thirdly, as has been noted, 77 of the 265 appeals disappeared from the Privy Council records undetermined, which would seem to leave but 188 appeals that were of any effectiveness. Of these 45 were discharged for non-prosecution. A liberal estimate would leave about 150 cases determined on their merits, or three in every two years. And in a few of these cases the orders in council were laxly enforced. Fourthly, the expense of prosecuting an appeal in England was a serious drawback to the usefulness of the system.

Despite these shortcomings, the appellate jurisdiction of the king in council was a valuable institution and was far more efficiently exercised than is generally represented. Its performances were beyond a doubt regarded as satisfactory; there were relatively very few colonial complaints against the system, and, in at least one instance, that of South Carolina, the provincial council and assembly petitioned the king for the privilege of

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appealing to him in council.¹ Other evidence corroborates the conclusion that the king in council was in general an unbiased tribunal of justice. The personnel of the Privy Council was strong and its procedure insured justice to both appellant and appellee. The average time necessary for the determination of an appeal was comparatively short. The frequently with which necessary documents were lost in transmission seems to be greatly overrated, for the Privy Council records note only three such instances in cases appealed from the continental colonies. On the whole, the king in council seems to have been a tribunal well adapted for the adjudication of colonial appeals. Certainly no other existing institution in England could have exercised this function more satisfactorily.

Arthur Meier Schlesinger.

Ohio State University.