Plantations, Richard West, then Counsel to the Board and later Lord Chancellor of Ireland, stated, it is believed, the conclusion to be drawn from the wording of the charters, the holdings of the courts, and the opinions of the Attorneys and Solicitors General, and within the compass of a single sentence, that "The common law of England is the common law of the plantations, and all statutes, in affirmance of the common law, passed in England, antecedent to the settlement of any colony, are in force in that colony, unless there is some private act to the contrary; though no statutes made since those settlements are there in force, unless the colonies are particularly mentioned." 1 Statutes It would be foreign to the present purpose to attempt to show in this Colonial place the sense in which the colonists understood and exercised their right to make laws. Suffice it to say that new conditions produced new laws, and although each colony claimed the benefit of the common law when to its advantage, it legislated and insisted upon its right to legislate in its own interest in the absence of provisions of the customary and statute law, and at times in the very teeth of either or both. But, as will presently appear, laws in excess of the charter were either negatived by the governor in council, the active and vigilant miniature of the King in Council, or by the King himself in Council if the Governor had inadvertently approved a statute which his royal master was advised to disapprove, or by a judicial proceeding, by the Lords of Appeal in the Council, reversing a colonial judgment based upon a local law contrary to the laws of the realm, as in the case of Winthrop v. Lechmere. The result seems to be, however, that in every colony customs grew up, laws were passed, which created what might be called a local system, reasonable in the opinion of the colonies and not opposed to the law of the mother country as it should be interpreted in the circumstances. In a letter of ex-President Jefferson dated September 27, 1810, and addressed to Albert Gallatin, then Secretary of the Treasury in James Madison's administration, the result was stated with respect to New England in terms which were applicable to the colonies as a whole, considering the individual conditions of each: Was there ever a profound common lawyer known in one of the Eastern States? There never was, nor never can be one from those States. The basis of their law is neither common nor civil; it is an original, if any compound can so be called. Its foundation seems to have been laid in the spirit and principles of Jewish law, incorporated with some words and phrases of common law and an abundance of notions of their own. This makes an amalgam sui generis, . . .2 And in a letter written two years later to John Tyler, Judge of the United 1 Ibid., p. 511. 2 Writings of Thomas Jefferson, H. A. Washington ed., 1861, Vol. v, p. 550. States District Court of Virginia, and father of the future President, Mr. Jefferson said: I deride with you the ordinary doctrine, that we brought with us from England the common law rights. This narrow notion was a favorite in the first moment of rallying to our rights against Great Britain. But it was that of men who felt their rights before they had thought of their explanation. The truth is, that we brought with us the rights of men of expatriated men. On our arrival here, the question would at once arise, by what law will we govern ourselves? The resolution seems to have been, by that system with which we are familiar, to be altered by ourselves occasionally, and adapted to our new situation. But the state of the English law, at the date of our emigration, constituted the system adopted here.1 Mr. Jefferson's remark seems to be in substantial accord with history. As a matter of fact the colonists were not familiar with the common or statutory law in force at the moment of their departure from the mother country. They were not lawyers; the Bar was not held in honor until many years later; there were very few books of authority in which they could find the common or statute law during the course of the 17th century, and still fewer of those books and the reports containing the decisions of the English courts interpreting the common and statutory law made their way to the colonies. It was only on the eve of the Revolution, when the relations between the colonies had become closer and the advocates of colonial rights and privileges found the common law as an arsenal, from which they could seize weapons to be used in their defense, that, in Jefferson's phrase, "they thought of their explanation." Thus, it is stated in the celebrated Declaration of Resolves of the First Continental Congress, dated October 14, 1774: That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy... That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law. That they are entituled to the benefit of such of the English statutes as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.2 It is the most familiar of maxims that no man can be a judge in his own case, and to have allowed the colonies to determine for themselves whether 1 Lyon Gardiner Tyler, The Letters and Times of the Tylers, Vol. i, p. 265. 2 Journals of the Continental Congress, Vol. i, pp. 68–9. of Interests their acts of legislation were within the charter or grant would have placed of the For present purposes, the prerogatives of the Crown may be defined to be Prerogatives the original rights which the kings of England had claimed and exercised, and Crown which had not in the course of time been vested in the Parliament, or in courts of justice, provided, however, that the prerogatives remaining with the Crown were not, as stated by Lord Mansfield in a passage already quoted from the case of Campbell v. Hall, inconsistent with the fundamental laws of the realm. These prerogatives the king exercised in his Privy Council on the advice of certain persons appointed by him, as he had formerly exercised these rights in the older and larger council of the realm before he had divested himself or been divested of them. Deprived of its functions as a legislature and a court for the realm, the Privy Council was confined to administrative and executive functions in the kingdom, retaining in the dependent dominions legislative, executive and judicial rights, which, however, could not be contrary to the fundamental constitution of the kingdom. In so far as the exercise of these prerogatives had not been granted to the colonies they remained with the King in Council; when granted to the colonies they could not lawfully be exercised by the King in Council, as held by Lord Mansfield in the leading case of Campbell v. Hall. But even in such cases the King in Council exercised the right of supervision and administration; otherwise, the colonial interpretation might differ from the royal, and the system become one of inextricable confusion. The Council for the Government of Foreign Plantations established by Charles II was abolished in Lords 1674. A permanent board was created, known as the Lords Commissioners of of Trade Trade and Plantations, composed of great dignitaries, who were members of Commissioners and Plantations Committee for Hearing Appeals Three the Privy Council, and of some persons not members, but added to the Board to secure its efficiency. The chief purpose of the Lords Commissioners was to advance the trade of the Kingdom and also of the colonies, and in so doing, the interests of the empire would be advanced — although the chief interest was that of the mother country. The Lords Commissioners reported to the King in Council, and, upon approval of their recommendations, appropriate action was taken by them. They recommended, for example, instructions to be sent to the Governors, laws to be approved of or to be vetoed, and, in case of disputes between the colonies relating particularly to boundaries, they suggested the appointment of commissions composed of members from adjoining provinces, issued instructions to the commissioners, and recommended, favorably, or unfavorably, their awards or opinions to the King in Council. For matters of a judicial nature, there existed a Committee for Hearing Appeals from the Plantations, which appears to have been not a specially appointed committee of the council but to have been composed of such members of the council who attended and gave their attention to the appeals. This committee might, if it chose, consider and determine the matter itself, or refer it for investigation and report to the Lords Commissioners of Trade and Plantations, whose report it might or might not approve. Its action, however, was submitted to the King in Council who, in the period of the Stuarts, attended with more or less regularity, but who, in the time of the Hanoverians, appears to have been present only on formal occasions and to have given his assent to the recommendations of the Council without taking part in its proceedings. Appeals from judgments of the colonial courts might be of three kinds. First. The appeal was from a colonial judgment, in which the appellant claimed that a principle of law was wrongly applied because of an irregularity in procedure, because of prejudice on the part of the judge, or because of the misapplication of a principle of law. In these circumstances the appellant and defendant would be heard by counsel, either by the Committee for Hearing Appeals or upon reference from that body by the Lords Commissioners of Trade and Plantation, and proceedings in either would be had in accordance with English justice. If the case were referred to the Lords Commissioners, their recommendation would be reported to the Committee for Hearing Appeals, which could approve it or modify it. Whereupon the original or amended recommendation was referred to the King in Council, upon whose approval it became a decree of the King in Council and established the law of the case. In ordinary cases this would not involve the setting aside of a colonial statute. It is to be supposed, and it was the fact, that colonies did not relish appeals from the decisions of their courts and were indisposed to allow appeals from the Governor in Council, often the final colonial court of appeal. But, how UNIV. OF ever reluctant the colonies might be to allow appeals to be taken to the King in Council, the mother country was inexorable, declaring it to be the right of every English subject residing within the colonies to appeal to the King in Council; and although the colonies sought to prevent appeals which they must needs permit, by allowing them only where large sums were involved and where security was given by the appellant for costs and for the payment of the judgment in case the judgment should be affirmed on appeal, the Privy Council decided upon petition of the appellant, irrespective of the amount involved, whether it would or would not allow the appeal in the interest of justice and its uniform administration. Second. It might happen, however, that the judgment appealed from was based upon the statute of the colony claimed to be contrary or repugnant to or inconsistent with the laws of the realm. In such a case the Privy Council would perforce examine the laws, and, if it found them to be as alleged, it declared them to be null, void and of no effect and reversed the decision of the court based upon them. In certain colonies, more especially in Connecticut and Rhode Island (for the charter of Rhode Island was similar to that of Connecticut), the repugnancy of colonial legislation to the laws of the realm could only arise in a judicial proceeding of this kind, inasmuch as neither of these colonies was required to submit its laws to the mother country for approval or disapproval. The leading case on this point is that of Winthrop v. Lechmere, which will be seen to be a direct precedent for the courts of the United States in declaring, in a judicial proceeding, laws of the United States or of the States, contrary to the Constitution, to be null, void and of no effect. Third. A dispute might exist between two colonies, as in the case of boundaries based upon an agreement reduced to writing and in a form to be passed upon by the courts, interpreted, and, in appropriate cases, specifically enforced by a court of equity. This was the case with the celebrated agreement of 1732 between the sons of William Penn, proprietors of Pennsylvania, on the one hand, and Lord Baltimore, proprietor of Maryland, on the other, regarding the boundary between the provinces. In such a case, the Court of Chancery having jurisdiction of the parties who resided in England could and actually did order them to enforce their agreement, although it affected title to two provinces beyond the jurisdiction of the Court and indeed beyond the seas. In disputes between the colonies there might be a wrong without a remedy unless there were a resort to a common authority, for, while each of the colonies was equal and independent of the others, they were all dependent upon the Crown. Therefore, in a justiciable question, whether it be between the colonies or inhabitants of different colonies, resort was had to the King in Council, for the reasons quaintly stated in the petition dated July 17, 1678, of Precedent for the Supreme the Power of Court over Legislatures |