is to be had to the poorest petitioners, that they be not wearied out with over long attendance. VI. At every council, before the Lords rise from the board, the Lord President, or one of the principal secretarys, in his absence, is to signify to the Lords what business of the day do remain, and to take their resolution with which to begin the next sitting, if greater occasions intervene not. VII. When any order is agreed upon, the clerk of the council attending, shall take notice thereof in writing, and punctually read, openly, how he hath conceived the sense of the board, that if anything be mistaken, it may then be reformed; and afterwards when the clerk shall have drawn the said order at large, in any cause of importance, before he enter the same into the council books, or deliver it to any person, whom it may concern, he is to show the draught to the President, or, in his absence, to one of the secretarys of state, to be allowed and signed under one of their hands, before the entry and delivery thereof. On July 22, 1664, it was "ordered that the clerks of the council do take care for the future, that all petitioners who shall exhibit any petition to the board, do first sign the same." While this order refers to "petitions," regular judicial appeals were included within its provisions. It has already been. observed that the council and other courts of the time did not always make a careful distinction between a petition and an appeal, and that an appeal was often presented to the consideration of the council by means of petition. In 1667 the council passed two orders in regard to its procedure in judicial affairs. On January 31 of that year standing committees of council were established and provisions made for their regulation. Additions to this order soon became necessary, and on February 12 a second decree was passed. This order recites that His Majesty, having among other the important parts of his affairs, taken into his princely consideration the way and method of managing matters at his Council-board and reflecting that his Councils would have more reputation if they were put into a more settled and established course, hath thought fit to appoint certain standing committees of the Council for several businesses: together with regular days and places for their assembling, in such sort as followeth:-A committee for the business of trade, under whose consideration is to come whatsoever concerns his Majesty's foreign plantations, as also what relates to his kingdoms of Scotland or Ireland, in such matters only relating to either of those kingdoms a properly belong to the cognizance of the Council-board, the isles of Jersey and Guernsey which is to consist of the Lords Privy Seal, Duke of Bucks, Duke of Ormond, Earl of Ossory, Earl of Bridgwater, Earl of Anglesey, Earl of Lauderdaill, Lord Arlington, Lord Holles, Lord Ashley, Mr. Comptroller, Mr. Vice Chamberlain, Mr. Secretary Morice, Sir William Coventry; the usual day of meeting to be every Thursday in the Council chamber, and oftener, as he that presides shall direct; and hereof three or more of them to be a quorum. And it is further ordered that this committee calling unto them his Majesty's Attorney-General or else his Majesty's Advocate do henceforward hear all causes that by way of appeal come from the isles of Jersey and Guernsey. The orders whereupon being in due form prepared by the Clerk of the Council are, before they are signed, to be read at the Council-board, and there approved of, so that they may receive the approbation and authority of the whole Council, which before used to pass distinctly from the Committee only by a derivative power from the Board. The system as thus outlined continued until January 27, 1687, when it was ordered that not only a certain number, but all of the lords of the privy council be appointed a standing committee on trade and foreign plantations. But it appears that this return to the early method of adjudicating appeals did not result successfully. A further change, therefore, became necessary, and on December 10, 1696, an order was passed which recites that His Majesty having this day taken into his Royall consideration the matter of hearing appeals from the Plantations, is pleased to direct and order in councill that all appeales from any of the Plantations be heard as formerly by a committee, who are to report the matters so heard by them, with their opinion thereupon, to his Majestie in councill. And in order thereunto his Majestie did declare his further pleasure, that all the Lords of the councill, or any three or more of them, be appointed a committee for that purpose. It will be noticed that under the provisions of this order all of the lords of the council might still act as a committee on hearing appeals from the colonial courts. But whatever the number of privy councillors serving on this committee, whether the whole council or only three members, it had only a committee's powers and was required to make its report to the council itself. A brief reference must now be made to the manner of presenting colonial appeal cases before this committee.' According to an order of October 31, 1689, it was declared that thereafter "there be not admitted above two council to be heard on a side in any cause at this board, and but one allowed on each side for reading such evidences and proofs 2 as there shall be occasion to make use of." A committee with similar functions is now (1895) known as the Judicial Committee of the Privy Council. 2 Copies of records and other proceedings were brought from the colonies when appeal cases were adjudicated by the King in council. It appears that prior to 1727 the meetings of the committee were frequently put off because of the failure of counsel to be present and argue their cases. Delays were thereby caused which resulted in the obstruction of justice and the detriment of the suitors. To stop this practice the lords of the committee, on January 18, 1727, ordered that When a day shall be appointed to hear any appeals or complaints either from the plantations or from the Isles of Jersey and Guernsey, or for any other cause or causes depending before this committee, such pretence of want of counsel shall not be allowed of us as a reason to defer the hearing thereof. Whereof all persons concerned in soliciting causes before this committee are to take notice and govern themselves accordingly. On March 10, 1730, the King in council passed an order which recites that Whereas a practice hath of late been introduced by parties who have causes depending before the council, to print and deliver a state of their case to every privy councillor at the time of hearing of the said causes, which printed cases have not been signed by any counsel learned at law. And whereas the same hath been represented to his Majesty at this board as a very irregular and improper way of proceeding: His Majesty this day took the same into his royal consideration, and being desirous to prevent the like practices for the future, is hereby pleased, with the advice of his Privy Council, to order that no person whatsoever do presume to deliver any printed case or cases to any Lords of the council, or any committee thereof, unless such case or cases shall be signed by one or more of the counsel, who shall attend at the hearing of the cause. Furthermore, when causes were argued upon printed points, or heads of argument, which were handed up to the members of the committee as judges, the rule was to pass a copy to the counsel of the adverse party. It was usually customary for the counsel to note on the margin of this copy his own strictures upon the argument of his opponent, and to use the copy, with these marginal notes, as a minute by which to reply to the line of argument therein contained. Sir John Strange and Sir Dudley Rider used these printed points in arguing the case of Phillips v. Savage in 1738.' On April 21, 1746, it was ordered by the lords of the committee of council for plantation affairs that "when appeals or other causes are put upon the list of business for hearing before this committee, that the party or parties at whose request such appeal or cause is set down, shall be in readiness to be heard whenever their Lordships shall appoint a day." An additional order was passed by the lords of the committee Massachusetts Historical Society Proceedings, 1860-1862, p. 167. on July 9, 1751. It stipulates that when "the said appeals or causes shall have been so put upon the list of business for hearing, the same be heard in the course they are so set down, without any further notice, order, or direction of the committee for that purpose." It is plain that the method of procedure was a careful one. Every appeal was referred to the privy council's committee on plantation affairs, and before the lords of this committee the case was carefully and fully tried. But the lords of the committee did not always rely upon their own judgment alone. They frequently referred cases to the lords commissioners for trade and plantations; and these commissioners, in turn, often sought the advice of the attorney and solicitor general.2 Reports were then returned from board to board until the committee on plantation affairs made its report to the King and the entire council. The council's advice upon the report was then obtained, and the King, acting upon this advice, issued the final decree in the form of an order in council, either affirming, reversing, or otherwise revising the decision of the colonial court. In conclusion it, need only be said that during the period with which we have been concerned in the present inquiry, the King in council was a tribunal well adapted for the adjudication of colonial appeal cases. Not only its personnel, but its very procedure insured justice to both appellant and appellee. Certainly no other English institution of the time could have exercised more adequately or satisfactorily than did this "honorable and reverend assembly of the King and his privy council" the functions of a tribunal with appellate jurisdiction over the courts of Rhode Island and the other American colonies. It was a noble predecessor of a still nobler tribunal, the Supreme Court of the United States. Either in chancery or in common law. 2 Douglass's Summary, I. 3 After the report of the committee, affirming or reversing the judgment appealed from, had been confirmed by the King in council, a rehearing was not granted. In Penn v. Lord Baltimore, on a petition by the plaintiff's for a rehearing, the committee reported that there was no instance of rehearing on an appeal, which would be mischievous, unless on some very particular circumstances, such as the discovery of new evidence or fraud; and the petition was therefore rejected. (See Burge's Colonial Law, I, Introd., p. lxxvii.) XIX.-RHODE ISLAND AND THE IMPOST OF 1781. By FRANK GREENE BATES, of Cornell University. 66 At the close of the year 1780 affairs in America were in so critical a condition that it seemed as if the extremity was at hand. There was still but the germ of a constitutional union. Congress was helpless. Demands on the States for money had almost ceased to be of avail. Credit was at low ebb. The Army was suffering from the lack of pay, provisions, and clothing. Mutiny pervaded the air. Heroic measures were necessary. "If we mean to continue our struggle," said Washington, we must do it upon an entire new plan. Ample powers must be lodged in Congress, as the head of the Federal Union, adequate to all the purposes of war." Again, "There can be no radical cure till Congress is vested by the States with full and ample powers to enact laws for general purposes." Only then would ruinous delays cease. As a step toward greater efficiency Congress, on February 3, 1781, recommended that they be vested with power to lay a duty of 5 per cent on all goods, with a few exceptions, imported from foreign lands, and a like duty on all prizes condemned in the admiralty courts."3 New Hampshire soon granted the request, and before the summer of 1782 she was followed by all the States except Rhode Island and Georgia. Here is the point at which Rhode Island departed from that hearty acquiescence which she had given to every act tending to united resistance to oppression or to the prosecution of the war. From the date of her first official protest against the navigation laws in June, 1764, in the stamp-act congress, in nonimportation agreements, in committees of correspondence, 1 Ford's Washington, IX, 13. 3 Journal of Congress, III, 572. |