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161. This power, whilst employed for the benefit of the community and suitably to the trust and ends of the government, is undoubted prerogative, and never is questioned. For the people are very seldom or never scrupulous or nice in the point; they are far from examining prerogative whilst it is in any tolerable degree employed for the use it was meant — that is, the good of the people, and not manifestly against it.
168. The old question will be asked in this matter of prerogative, " But who shall be judge when this power is made a right use of ?” I answer: Between an executive power in being, with such a prerogative, and a legislative that depends upon his will for their convening, there can be no judge on earth. As there can be none between the legislative and the people, should either the executive or the legislative, when they have got the power in their hands, design, or go about to enslave or destroy them, the people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven ; for the rulers, in such attempts exercising a power the people never put into their hands, who can never be supposed to consent that anybody should rule over them for their harm, do that which they have not a right to do. And where the body of the people, or any single man, are deprived of their right, or are under the exercise of a power without right, having no appeal on earth they have a liberty to appeal to Heaven whenever they judge the cause of sufficient moment. And therefore, though the people cannot be judge, so as to have, by the constitution of that society, any superior power to determine and give effective sentence in the case, yet they have reserved that ultimate determination to themselves which belongs to all mankind, where there lies no appeal on earth, by a law antecedent and paramount to all positive laws of men, whether they have just cause to make their appeal to Heaven. — Ib., c. xiv.1
WINTHROP v. LECHMERE.
PRIVY COUNCIL. 1727-28.
[4 Conn. Hist. Soc. Coll., 94 n. ; 5 Mass. Hist. Soc. Coll. (6th Series), 440–511.) WAIT STILL WINTHROP, commonly called Wait Winthrop, formerly Chief Justice of the Superior Court of Judicature of Massachusetts, died intestate in 1717, leaving a considerable estate in Connecticut. His two children were John Winthrop of Connecticut, and Anne, wife of Thomas Lechmere of Boston. John became administrator of the estate, and claimed all the real estate, under the common law of England. Lechmere, in right of his wife, claiming a share of the real
1 For certain passages from Montesquieu (1748), Rousseau (1762), and Blackstone (1765), see ante, p. 2.- ED.
estate under an Act of the colony of Connecticut, which divided an intestate's property among his children, began proceedings in the Probate Court of that colony to enforce his claim. After a long litigation the Superior Court of Connecticut, in 1725–26, vacated Winthrop's letters of administration, and substituted, in his place, Lechmere and his wife. Winthrop sought relief from the General Assembly, threatening an appeal to the King in Council. He was taken into custody for contempt; but escaped (as it was alleged), and went to England, where he brought his appeal. The General Assembly, in March, 1726, passed an Act authorizing Lechmere to sell a part of the real estate.
Winthrop's “Brief in Appeal,” together with short memoranda of the arguments of counsel on the other side, are found in the volume of the Massachusetts Historical Society, mentioned above, pp. 440-496. The Decree is given in the same volume, pp. 496-511.
appears (pp. 457, 461, 463) that Winthrop's claim, before the courts in Connecticut, was under the law and custom of England ... the said law of the colony notwithstanding,” — “ both by Act of Parliament and by the Royal Charter ;” that he was denied an appeal (p. 460), “ the court saying they were not under your Majesty's government, and their charter knew nothing of your Majesty in Council.” He argued, in part, as follows (p. 484): " The appellant insists the Assembly granting the said Lechmere a power to sell the lands of the intestate to pay the debt and costs in Lechmere's petition to the Assembly mentioned without hearing your petitioner, the undoubted heir to such lands, and leaving Lechmere to sell what part thereof and in what manner he saw proper, is against the common and statute law of this realm, and destructive of the liberty and property of the subject, and against reason, and as such contrary to the royal charter of the province, and the Assembly fining the appellant in £20 for his opposing the said measures was equally unwarrantable and unjustifiable. . . .
"What Lechmere's counsel will insist on to support the whole of his proceedings is a printed Act they find amongst the Connecticut printed laws, fol. 60, entitled an Act for Settlement of Intestates' Estates. . . . [Here the statute is recited, by which it appears that an intestate's real and personal estate, after providing for the widlow's dower, was to go equally to the children, except that the oldest son had a double portion.]
“ But as to this Act we answer and insist (first) that it is an obsolete Act, made in the infancy of the province, and long since out of use and not of any force or regard in the province, and the time when it was made does not appear save that it was made when courts of assistants were also in use there, which have been long since abolished, which is plainly evidenced from the loss Lechmere was at what steps to take in this affair, and from the extraordinary applications of Lechmere for an interposition of the Assembly therein, and there is not the least proof made by Lechmere of this being a law in force or practised at this time in Connecticut, though we insisted before the
courts below that notwithstanding this law we were entitled to the whole real estate of our father; though if this law was not obsolete, we insist (secondly) that the same is void in itself as being not warranted by the Charter, and can no ways influence the present case. For by the Charter their power of making laws is restrained and limited in a very special manner (namely), such laws must be wholesome and reasonable, and (not] contrary to the laws of this realm of England, and then by the charter the inhabitants may have, take, possess, &c., lands, &c., and the same dispose of as other the liege people of the realm of England, and were to enjoy all liberties and immunities of natural-born subjects, and the soil of the whole province is granted to the governor and company, and their successors and assigns forever, upon trust and for the use and benefit of themselves and their associates, their heirs and assigns, to be holden of his Majesty, as of the manor of East Greenwich in free and common socage.
By the common law of England, which is what the Charter has a view to, it is undoubted that real estates descend to the eldest son of him that was last seized in fee as his heir-at-law, and neither an administrator nor an ecclesiastical court have anything to do therewith, and by the law of England an only daughter cannot be co-heir with an only son, but the son is absolute and sole heir to the father, and must as such inherit his real estate undevised by will, and we take it that where an estate of inheritance is granted under the Great Seal of Great Britain, which this Charter does, that the same is descendible according to the course of the common law, and we also take it that all our plantations carry with them the common law of their mother country, which prevails in all the plantations, and we know of no part of the plantations but where real estates descend to the heir-at-law as with us, and the first governor, the appellant's grandfather, on receiving the Charter, was obliged to swear before a Master in Chancery that he and his successors would observe and keep the common law of England. There have been also several Acts of Parliament passed here which as we apprehend support the right of descent, and by the Charter the tenure of the lands in Connecticut is declared to be held under the Crown as lord of the fee under the most free tenure possible, and it is against reason as well as law that an only daughter should be co-heir with an only son. We therefore insist this law is null and void, as being contrary to the law of this realm, unreasonable, and against the tenor of their Charter, and consequently the province had no power to make such a law and the same is void.
“Note. The laws of Connecticut are not by their Charter directed he laid before the Crown for their approbation or disallowance, so that there is no other way to avoid any laws they shall make but by seeing if they are agreeable to the powers of their Charter, which if they are not, then we apprehend they cannot be considered as any laws at all, since a formal repeal of them cannot be had otherwise than by voiding the Charter.
" What we are to pray is,
* First, That the resolve of the General Assembly declaring Lechmere might and ought to be relieved by the Court of Probates
be declared null and void.
" Secondly, That the inventory tendered by us to the Court of Probates of all our father's personal estate may be declared a right and proper inventory, and ought to be accepted as such, and that the sentences rejecting the same may be reversed.
“ Thirdly, That the sentence of the Superior Court granting administration to Mr. Lechmere and his wife may be reversed and set aside, and Lechmere's action demanding the same be dismissed.
“ Fourthly, That the administration granted to Lechmere may be called in and vacated, and the administration before granted to the appellant ordered to stand.
“Fifthly, That the inventory exhibited by Mr. Lechmere and his wife of the appellant's real estate, and also of his charges, and the debt due to Lattemore, may be vacated and taken off the file, and the order allowing the same and directing the same to be recorded may be discharged.
“ Sixthly, That the order of the General Assembly empowering the said Lechmere to sell the appellant's lands, and the order of the Superior Court founded thereon, dated 27 Sept., 1726, allowing of Lechmere's making such sale, and the sale itself, may be declared null and void, and expurged the record; and generally.
"Seventhly, That all which Mr. Lechmere hath done under the said administration, together with the said law for settling intestate's estates may be declared void, and that the appellant is entitled to succeed to the real estate of his father as heir-at-law, according to the common law of the land. ..
“ If they should oppose our going into the merits for that we ought to have appealed to the Assembly, that is overruled by his Majesty's baving allowed us an appeal. Besides, we have before shown he Assembly to be no court of judicature, and that the judgment of the Superior Court is final there, and in all appeals from that province bither the same have been from the judgments of the Superior Court."
The Decree, Feb. 15, 1727–28 (p. 496), was as follows:
“l'pon reading this day at the Board a report from the Right Honorable the Lords of the Committee for hearing appeals from the plantations, dated the 20th day of December last, in the words following, viz. ... (Here the matter of the petition is set forth at large.]
" Their Lordships having heard all parties concerned by their counsel learned in the law on the said petition and appeal, and there being laid before their Lordships an Act passed by the Governor and Compary of that colony entitled An Act for the Settlement of Intestates' Estates, by which act amongst other things) administrators of persons dying intestate are directed to inventory all the estate whatsoever
of the person so deceased, as well movable as not movable, and to deliver the same upon oath to the Court of Probates, and by the said Act (debts, funerals, and just expenses of all sorts, and the dower of the wife (if any) being first allowed) the said Court of Probates is empowered to distribute all the remaining estate of any such intestate, as well real as personal, by equal portions to and amongst the children and such as legally represent them, except the eldest son who is to have two shares or a double portion of the whole, the division of the estate to be made by three sufficient freeholders on oath, or any two of them, to be appointed by the Court of Probates : Their Lordships, upon due consideration of the whole matter, do agree humbly to report as their opinion to your Majesty, that the said Act for the Settlement of Intestates' Estates should be declared null and void, being contrary to the laws of England, in regard it makes lands of inheritance distributable as personal estates, and is not warranted by the Charter of that colony; and that the said three sentences of the 29th of June, 1725, of 28th September, 1725, and of the 22d day of March, 1725-6. may be all reversed and set aside. . . . [Here follow other matters which are all included in what follows.]
“ His Majesty, taking the same into his royal consideration, is pleased, with the advice of his Privy Council, to approve of the said report, and confirm the same in every particular part thereof, and pursuant thereunto to declare that the aforementioned Act entitled An Act for the Settlement of Intestates' Estates is null and void, and the same is hereby accordingly declared to be null and void and of no force or effect whatever. And his Majesty is hereby further pleased to order, that all the aforementioned sentences of the 29th of June, 1725, of the 28th of September, 1725, and of the 22d of March, 1725-6, and every of them, be and they are hereby reversed and set aside ; and that the petitioner, John Winthrop, be and he is hereby admitted to exhibit an inventory of the personal estate only of the said intestate, and that the Court of Probates do not presume to reject such inventory, because it does not contain the real estate of the said intestate. And his Majesty doth hereby further order, that the aforementioned sentence of the 22d of March, 1725–6, vacating the said letters of administration granted to the petitioner and granting administration to the said Thomas and Anne Lechmere, be also reversed and set aside; and that the said letters of administration so granted to the said Thomas Lechmere and Anne his wife be called in and vacated; and that the said inventory of the said real estate exhibited by the said Thomas Lechmere and Anne his wife be vacated. And that the order of the 29th of April, 1726, approving of the said inventory, and ordering the same to be recorded, be discharged and set aside; and that the original letters of administration so granted to the petitioner be and they are hereby established and ordered to stand. And that all such costs as the petitioner hath paid unto the said Thomas Lechmere by direction of the said sentences, all, every, or any of them, be forth