king in council almost from the beginning. The attitude of the chartered colonies is indicated by a letter of the Board of Trade to the Earl of Bellomont of April 29, 1701, which speaks of "this declining to admit Appeals to his Maj'ty in Council" as a humour that prevails so much in the Proprieties and Charter Colonies." A representation of the Board of Trade to the king on March 26, 1701,3 declared that "diverse of them [the chartered colonies] have denyed appeals to your Majesty,

4

that benefit enjoyed in the Plantations under your majesties immediate Government." A representation of the Board of Trade of March 1, 1702, again averred that the chartered colonies" had refused . . . to allow appeals." to allow appeals." This position of judicial independence constituted one cause of the movement in progress at that time for the withdrawal of all colonial charters by an act of Parliament.

The case of Connecticut was the most conspicuous instance of the denial of appeals. Her charter made no mention of the appellate jurisdiction of the king in council, and she was not inclined to yield her privilege of settling finally any cases that arose within her limits. This attitude was in harmony with her determined purpose to maintain a politically self-sufficient commonwealth. As early as October, 1684, the Connecticut General Court grudgingly declared that, although they did not find anything in the charter "oblidging, requiring or comanding" them to grant the liberty of an appeal to His Majesty, they would not "in any wise put a barr upon the lawful liberty of the demandents, to impeed their appearance before his Matie or any of his courts."5 This permission, however, was never acted upon by the parties who petitioned for the privilege. Before the end of the century, Connecticut had assumed a more

1 Account of the Present State of the Government of Virginia (1696–98), in I Massachusetts Historical Society Collections, V, 139; Chalmers, Introduction etc., I, 164.

N. H. Provincial Papers, II, 341, 342.

N. C. Colonial Records, I, 535-537, 540. This charge was repeated verbatim by the Board of Trade on January 10, 1705-06; ibid. I, 630–633.

4 Palfrey, J. G., History of New England, IV, 200.

Conn. Colonial Records, III, 167.

stiff-necked attitude. In 1698, John and Nicholas Hallam, and Edward Palmes and John Hallam, sought to appeal "two particular cases" to the king in council. Their petitions were refused by the Connecticut court on the grounds that the colony courts were the tribunals of last resort. Thereupon the men petitioned the Privy Council for liberty to appeal; and the order in council of March 9, 1699, declared to the governor and company of Connecticut that any persons, aggrieved by the judgments of the Connecticut courts, should be allowed to appeal to the king in council, adding that it was "the inherent right of His Majesty to receive and determine appeals from all his Majesty's colonys in America; and that they do govern themselves accordingly." The colony, imagining that the crown was taking away her charter rights, still refused to comply, the governor declaring, according to a representation of the Hallams, that before an appeal should be allowed, "they would dispute the point with your Majesty." On October 22, 1699, the governor and company of Connecticut presented their case in a diplomatically-worded letter to the Board of Trade, justifying their pretensions by their remoteness from England and by the provisions of their charter. Sir Henry Ashurst, the Connecticut agent, appeared in behalf of the colonial claims on December 13. The persistence of Connecticut in claiming that appeals to England were illegal under her charter caused the Board of Trade to turn to Attorney-General Trevor and Solicitor-General Hawles for their opinion, both as to the legality of appeals and as to the means of forcing Connecticut to comply with the order of March 9. On May 15, 1701, their very important opinion was rendered to the effect that

though there is no reservation of Appeals to his Majesty in the Charter granted to Connecticut, yet that an Appeal doth lye to H. M. in his Council as a right inherent in the Crown, and in case they refuse to

1 This account is based upon: America and West Indies Calendar, 1699, nos. 119, 120, 160, 161, 270, 290; 1700, nos. 385, 460, 477, 974, 1002, 1012, 1014, 1021; 1701, nos. 166, 442, 480, 533; and Macqueen, Appellate Jurisdiction, 805, 806; Acts of the Privy Council, II, nos. 733, 734; Palfrey, New England, IV, 224; Caulkins, F. M., History of New London, 222-227.

allow the Appeal there, we think H. M. may proceed to hear the merits of the cause upon an Appeal made to him in Council, whether that Appeal be allowed or admitted there or not.'

In accordance with this opinion, an order in council on June 12 admitted John and Nicholas Hallam to appeal, these parties having given the proper security to prosecute their appeal and to abide by his majesty's determinations.

A representation of the Board of Trade to Queen Anne on January 10, 1706, declared that the authorities of Connecticut "have refused to allow appeals to Your Majesty in council, and give great discouragements and vexation to those that demand the same." " Acts of the Connecticut government in 1704 and 1710 indeed acknowledged indirectly the legality of the appellate jurisdiction of the crown but refused to assist its operation.3 So far as the published records of the Privy Council show, the colony consistently refused to permit appeals throughout her history. On the other hand, the Privy Council invariably admitted cases from Connecticut upon petition.

The provisions of the Rhode Island charter were similar to those of the Connecticut instrument; but her views in regard to the desirability of appeals were very different, as has been noted. As early as July, 1685, Edward Randolph charged Rhode Island with denying appeals to the king in council, but his evidence is not unimpeachable. In February, 1699, Francis Brinley, a merchant of Rhode Island, petitioned the Privy Council for leave to appeal, alleging that he had met with serious obstructions to justice in the local courts. The account of his case was admittedly vague and unsatisfactory; but the Board of Trade, still in the heat of the controversy with Connecticut, advised the Privy Council to assert its authority. The result was an order in council of April 27, 1699, directed

America and West Indies Calendar, 1701, no. 442.

2 R. I. Colonial Records, IV, 12-15.

8 Conn. Colonial Records, IV, 480; V, 161.

R. I. Colonial Records, III, 175.

'This account of the Brinley case is based upon: America and West Indies Calendar, 1699, nos. 122, 299, 315, 341; Acts of the Privy Council, II, no. 732.

to the governor and company of Rhode Island, which reiterated the declaration of the previous month to Connecticut, that it was "the inherent right of His Majesty to receive and determine appeals from all His Majesty's colonies in America and that they do govern themselves accordingly." Governor Cranston's letter to the Board of Trade in response to the order in council proves beyond question that Brinley's statements in his petition had been false. He was shown to have neglected all the legal requirements for rehearing of his case in the Rhode Island courts, and then Cranston continues:

There was never any appeal desired by Brinley of this Government; neither was there any other person ever denied an appeal to His Majesty. But we believe in the case of small actions like this, which does not exceed £20, it will be a great prejudice to the poor subject to be liable to be appealed against. We beg you to state what value appeals shall be granted upon.'

However, Rhode Island, notable for her remissness in so many matters, did not succeed easily in clearing herself of the taint of denying appeals. The representation of the Privy Council against the colony on March 26, 1705, repeated the charge; and Governor Dudley, of Massachusetts, and Lord Cornbury, governor of New York, gave similar testimony in letters to the Board of Trade of November 2 and November 26, 1705.2 But the Rhode Island officials stoutly denied the charges, saying they had not refused to allow appeals when duly applied for and when the value of the matter in controversy required the same.3 In fact, as the eighteenth century progressed, Rhode Island showed herself very anxious to take advantage of the benefits of the appellate system; and the instances of appeals being denied by the courts of the colony were relatively few.

OHIO STATE University.

ARTHUR MEIER SCHLESINGER.

[To be continued.]

'America and West Indies Calendar, 1699, no. 672. R. I. Colonial Records, 543, 545.

Ibid. III, 548.

THE IRISH HOME RULE BILL

NLESS some reverse should overtake the Liberal govern

UNLE

ment, it is now almost certain that between April and

June of 1914 the Home Rule Bill, which was rejected in the House of Lords on January 30, 1913, by a vote of 326 to 69, will become law, and that once more there will be an Irish Parliament in Dublin. This measure will probably be the first law on the statute book of Great Britain to which there will not be prefixed the clause: "Enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons "-the first act to become law under the Parliament Act of 1911. The vote of January 30 showed that, without the help of the Parliament Act, the Irish bill could hardly have become law without at least one more general election, and that it would have been necessary to dissolve Parliament definitely on the home rule issue in order to obtain a popular mandate too strong to be disregarded by the House of Lords. In 1893, when Gladstone's second Home Rule Bill passed the House of Commons and was rejected by the House of Lords, the Liberal government did not consider the measure of such paramount importance as to induce them to go to the country after one year of office; and the election of 1895, which put the Conservatives again in power, was fought on other issues besides that of home rule. In fact, in spite of the long and persevering fight that the Irish Nationalists have made for home rule, and in spite of the fact that home rule has had its place in Liberal programmes since 1886, it is difficult to believe that any home rule bill would have had a reasonable chance of becoming law in the present generation, had it not been that the Lords, by throwing out the Finance Bill of 1909, defied the Commons and invited the contest in which they were worsted. With the Parliament Act in force, the Liberals are in a position to re-pass the present Home Rule Bill in the session of 1913 for the Lords again to reject and, in 1914, to send it forward to the king for his signature without the advice and