some cases, their reasons for refusing to admit the appeal.' 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 out 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. 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,' in another, the abode of the appellee in Christchurch parish, South Caro Ibid. II, nos. 480, 734. Ibid. III, nos. 414, 428. 1 Acts of the Privy Council, II, nos. 913, 990. Ibid. III, nos. 390, 391, 487, 527; IV, nos. 190, 263. lina.' 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." 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. 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. 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." It seems probable 1 Acts of the Privy Council, IV, no. 150. 2 Ibid. II, no. 1256. Previous to 1696, before the appellate function of the Privy Council became so clearly differentiated, the organ of the Council for hearing colonial appeals may be best followed in Professor C. M. Andrews's careful study, "British Committees, Commissions, and Councils of Trade and Plantations, 1622-75" (J. H. U. Studies, XXVI, nos. 1-3); and in the Acts of the Privy Council, I and II, passim. 4 Acts of the Privy Council, II, no. 657. 5 Ibid. III, no. 124; IV, no. 448. Ibid. III, no. 124. "Ibid. IV, no. 461. 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 designed for the most part to make the hearing of cases as expeditious as possible.' 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. 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 administration of them was committed to John Winthrop. Winthrop claimed all the real estate as his own, holding that he was 1 Macqueen, Appellate Jurisdiction, p. 804; Acts of the Privy Council, III, Nos. 142, 228; IV, No. 23; V, No. 297. 2 Talcott Papers, in Conn. Historical Society Collections, IV and V, passim; Winthrop Papers, part vi, in 6 Mass. Historical Society Collections, V, 367-370, 423428, 436-511; Conn. Colonial Records, VII, 20, 43, 122, 185, 191, 254, 571-579: 2 Mass. Historical Society Proceedings, VIII, 125-137; Acts of the Privy Council, III, No. 112; VI, nos. 367, 410, 431, 432; Chalmers, Opinions, pp. 341-42; C. M. Andrews, "The Connecticut Intestacy Law," Yale Review, III, 261-294. 441 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 On June 29, 1731, Governor Talcott, of Connecticut, wrote to Wilks, the new agent for the colony in London, that no intestate estate had been settled since the promulgation of the royal decree, "tho' many orphans and fatherless children groan under it, and the whole Government, with all possible submission and patience, have been waiting, as in hope of a gracious answer from the Crown." Conn. Hist. Soc. Colls., IV, 235. 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. On 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. 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. 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 Eng 1 Mass. Hist. Soc. Procs., 1860-62, pp. 64-80, 165-71; Acts of the Privy Council, III, no. 322; I Mass. Hist. Soc. Procs., XIII, 100-03. |