Since July, 1889, there have been restored, mounted, and bound: The Madison Papers... Vols. 75 22 The Monroe Papers... The "Army Returns" (Washington Papers).. Papers relating to the treason of Arnold and the trial of André............. 52 1 Several individual papers in the Washington collection have been inlaid, bound, and boxed by reason of special and unique value, and 1 volume of the papers of the Continentai Congress has been similarly treated. They are Forms of writing (Washington Papers). School copybook (Washington Papers). 66 'The United States in Account with G. Washington". Meteorological record (Washington Papers)..... Diaries 1, 2, and 3, in one box (Washington Papers)... "Rough" Journal of Congress (Papers of the Congress). Vol. 1 1 1 1 1 1 During the same period there have been restored and mounted, but not bound Reports of committees, vol. 28, 323 pages.. Reports of committees on the state of the week, 633 pages.. ary officers, 258 pages... Reports of committees of conference, 427 pages. Articles of Confederation, 349 pages.. Reports of committees to state the public debt, 321 pages.. Letters from the comptroller of claims, 261 pages. Reports of committees on the War Office, 409 pages.. Sheets. 243 180 240 200 240 270 271 155 132 250 263 172 120 131 88 144 Continental Congress-Continued. Motions in Congress...... Sheets. Reports of the marine committee, 543 pages Papers relative to mutiny, 1783, and the "peace establishment," 483 pages.. 2,170 178 158 Proceedings of committee of 1780, appointed to repair to head quarters, 237 pages.... 161 Letters and papers of the committee of 1780, 149 pages.. 164 187 Letters to Washington-Washington Papers, No. 78, 1 volume, 419 pages. 215 Oaths of Allegiance (Army Returns), Washington Papers, part 2 of Vol. I and parts 1 and 2 of Vol. II. Jefferson Papers, series 4, Vol. I, "Notes Memorandums" while Secretary of State, 614 pages, 614 sheets. NOVEMBER 30, 1894. XVIII. APPEALS FROM COLONIAL COURTS TO THE KING IN COUNCIL, WITH ESPECIAL REFERENCE TO RHODE ISLAND. By HAROLD D. HAZELTINE. American history presents no more important or absorbing subject of consideration than the origin and development of our colonial institutions. While the record of our social and political achievements is fascinating and instructive, the result of recent investigations has added a new interest to the study of our institutional history; for we now appreciate more fully than ever that the systems of society and government developing in the colonies finally came to possess a broader usefulness in the constitutional life of the United States. We look to England for the origin of the essential features in our system of justice, and the thought of the English privy council as the predecessor of our highest federal tribunal has, in general terms, been entertained and stated. Yet it is believed that this interesting element in our constitutional development has never been fully presented to the attention of historical scholars. So far as the writer knows, no one has ever made a thorough and systematic investigation of colonial appeals to the King in council. The importance, however, of the practice of appealing from colonial courts to that tribunal as a court of last resort is obvious. This practice taught the colonists to look more and more to a supreme tribunal for the adjudication of their legal cases, and to accept as law the judicial opinions of that body. It accustomed them to regard the courts of the different colonies as but parts of a judicial system which found a unifying principle in a court of final appeal. In short, this practice prepared them for the erection of a new court, with functions similar to those of the council, when the time came to organize a government for themselves. During the development of this practice, moreover, the important doctrine of American jurisprudence which grants to the judiciary the power of setting aside an act of the legislature as being repugnant to the fundamental law of the land received sanction from England in the privy council's decision of a certain American case.' The object of the present paper will be to present the result of recent researches by the writer in regard to this neglected phase of our constitutional history. While it has been impossible for him, up to the present time, to investigate the subject in detail in more than one colony, it is hoped that the history of appeals from the illustrative colony of Rhode Island, prefaced by a brief survey of appeals from the British colonies in general prior to the American Revolution, and supplemented by an account of the procedure of the King in council in such cases, will give some conception of the practice in its relations to English and American institutions. Judge Story has said that "the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.” The doctrine thus clearly stated by this eminent American jurist is essentially the same as that held by the privy council in regard to its own jurisdiction over the English colonial courts. In the very first order in council regulating appeals from a British colony3 it was decreed that "no appeal in any cause or matter, great or small, be permitted or allowed before the same matter be fully examined and ended by definitive sentence or other judgment having the force or effect of a sentence definitive." While the King in council exercised an original jurisdiction within certain limits, and had powers other than judicial, such as those exercised in the administration of the political affairs of the colonies, the present inquiry is concerned only with matters pertaining to this appellate authority over the judiciary of foreign possessions of the Crown; an appeal, as the term is here used, being a legal proceeding by which a case was removed from a colonial court to the King in council for final adjudication, after a certain definitive judgment or judgments had been passed upon it by one or more of the colonial tribunals. 1 Winthrop v. Lechmere, Connecticut, 1727-28. 2 Commentaries on the Constitution of the United States, § 1761. See 3 Order in council regulating appeals from Jersey, May 13, 1572. Macqueen's Appellate Jurisdiction of the House of Lords and Privy Council, p. 735. It is well to remember, in this connection, that in much of the documentary material regarding the relations between the colonies and the home Government the word "appeal" is not always used in this legal sense. The word refers in some instances to what is more properly designated as a complaint, or a form of procedure by which colonists presented to the attention of the Crown certain accusations against governors or other colonial officials.' It refers, in other instances, to what is more correctly entitled a petition, or a proceeding which was more comprehensive and customary than a simple complaint. Even in certain official decrees of the King in council the terms appear to be confused, regular judicial appeals, legally granted by colonial courts, being referred to as "petitions of appeal." While, however, complaints and petitions, sometimes designated as appeals, were, as a usual thing, political and not judicial in their character, the English right of petition was occasionally used by the colonists in judicial proceedings.3 In some cases of refusal on the part of colonial courts to grant appeals to England, the parties aggrieved petitioned the King in council to allow such appeals; and acting as the tribunal with supreme authority over all colonial courts, the King and council took these petitions into their consideration, and either allowed or refused the appeal to their judgment. The right of petition was so used in the famous American cases of Winthrop v. Lechmere and Phillips v. Savage. On petition, also, the appellee sometimes secured the dismissal of an appeal for nonprosecution, with the payment of costs by the appellant.5 In still other cases petition secured relief from the obstruction of justice in colonial courts." The right of appeal to the Crown in judicial proceedings was an established principle of English constitutional law during the period now under consideration, and was clearly expounded by the privy council itself. In the order in council Colonial Records of North Carolina, II, p. 161-163. 2 Order in council, June 12, 1739, deciding Rhode Island case of Coggeshall v. Coggeshall. 3 Colonial Records of North Carolina, II, p. 161. *See Chalmers's Opinions, II, p. 227, for reference to petition of Peter Van Bell, of Nevis, in 1704. 5 Order in council, December 21, 1738, deciding Rhode Island case of Martin v. Gibbs. 6 Macqueen, pp. 801, 805, 806. |