COLONIAL APPEALS TO THE PRIVY COUNCIL. II

'N the preceding portion of this paper,' 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. 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

1 POLITICAL SCIENCE QUARTERLY, vol. xxviii, pp. 279–297.

2 Acts and Resolves, I, 72-76, 144-45, 283-87, 248-49, 367-75.

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.'

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." 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." 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.'

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. The case involved a bitter con

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1 Acts of the Privy Council, III, no. 581.

2 N. C. Colonial Records, II, 161.

* Report of the American Historical Association, 1894, p. 336.

Acts of the Privy Council, III, No. 345. For a fuller account, based on the

troversy 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

court records of Massachusetts, see Davis, A. McF., "The Case of Frost vs. Leighton," American Historical Review, II, 229–240.

Another instance, which aroused considerable interest at the time, was the refusal of the superior court of Rhode Island to carry out the orders in council in the two appeals of J., T., and S. Freebody v. J. Brenton et al.; Acts of the Privy Council, V, no. 14; VI, nos. 871, 876. In these cases, the superior court in March, 1771, gave judgment against the orders in council of April 14, 1769. In spite of complaints made to the Privy Council, there is record as late as July 6, 1774, that the orders had not been executed. This defiant attitude of the Rhode Island courts in the pre-revolutionary period is also reflected in a letter of December 22, 1767, written by George Rome, of London, who was sojourning in the colony in order to collect numerous debts owing to British merchants. Referring to the Rhode Island courts, he laments: "We have appeal'd to his majesty in council for redress, got their verdicts reversed, and obtain'd the King's decrees for our money, but that is all; for altho' I have had them by me above twelve months, and employed two eminent lawyers to enforce them into execution conformable to the colony law, yet we have not been able to recover a single shilling, tho' we have danced after their courts and assembly's above thirty days, in vain to accomplish that purpose only;" Boston Evening Post, June 28, 1773.

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.

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. 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; the petitioners had not "applied for a review" in the colony; 5 the proceedings in the colonial courts were erroneous and illegal. 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 proceedings and, in 2 Ibid. III, no. 345.

1 Acts of the Privy Council, II, no. 1019.

3 Ibid. II, no. 1019.

Ibid. II, no. 1298.

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