land 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 identicalthe 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

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 accounts 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 reëstablishment 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 reëstab

lishment 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 AttorneyGeneral 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. 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. 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.

1 Conn. Colonial Records, VIII, 283, 506-507; IX, 587-593; Conn. Historical Society Collections, IV and V, passim; Acts of the Privy Council, III, no. 422; C, M. Andrews, "The Connecticut Intestacy Law," Yale Review, III, 261-294.

2 Conn. Colonial Records, VIII, 463.

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.' These combined efforts to secure a reversal of the Privy Council's former decision were successful. Clark's ap

peal 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

'Conn. Historical Society Collections, IV, 123, 147, 189; V, 245-248.

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.' 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. This was an average of

1 Statutes at Large of Pennsylvania, V, 735-737.

'Prior to 1680 it is often difficult to distinguish between an appeal in the technical sense of the term and an appeal in the sense of a petition. From early days, there was a close judicial connection between Virginia and the home government. Frequent petitions for justice were presented by aggrieved parties to the Privy Council, before all possible remedies had been sought in the colonial courts. Thereupon, an order in council would "will and require" the governor and council of Virginia to

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

direct their attention to the matter and to expedite justice as far as possible. There were also a number of cases carried to the king in council by persons whose property had been confiscated by arbitrary act of Governor Berkeley on charge of participation in Bacon's rebellion. Including this latter type of cases, there were, prior to 1680, apparently only fourteen appeals to the king in council: eleven from Virginia, three of which came before the Council as early as 1639; one from Maryland, 1668; one from Massachusetts Bay, 1678, and one from Rhode Island, 1679. After the year 1776, the only case appealed to the Privy Council was one from South Carolina in 1782.

As noted elsewhere, this study refers only to the colonies that later composed the original United States. From the other North American continental possessions of Great Britain, the first appeal was taken in 1708, from Newfoundland. In the years following, to the end of 1783, only twenty-six appeals reached the Privy Council, and these cases possessed no unusual features. Nine were appealed from Quebec; nine from Nova Scotia; four from Newfoundland; three from West Florida and one from East Florida. Fourteen of the cases originated in vice admiralty courts. Nine appeals received no recorded adjudication; two appeals were dismissed for nonprosecution; and one judgment was apparently never executed. Five appeals were heard ex parte.