Controversies Second, as to appeals from judicial decisions of a colony involving the Legal setting aside of colonial laws and the reversal of decisions of colonial courts Over Colonial based upon such laws. In 1699 the colony of Connecticut passed an act regulating the descent of estates of persons dying intestate, allowing the children of the deceased, females as well as males, to share in the distribution of the realty, reserving only to the eldest son a double portion instead of casting upon him the realty in its entirety, as in the common law of England.1 The charter of Connecticut allowed the colony "from Time to Time to Make, Ordain and Establish all manner of of wholesome, and reasonable Laws, Statutes, Ordinances, Directions, and Instructions, not Contrary to the Laws of this realm of England." 2 There was no reservation in the charter for the transmission of the laws to England, there to be approved by the Crown before they went into effect, or to go into effect subject to be set aside by the Crown within a certain period. The colonial officials elected by the freemen of the colony were not anxious to awaken sleeping dogs, if that homely expression rather than lions be applied to the mother country, and laws claimed to be in excess mission of 1737. See: New York Colonial Documents, vol. vi, pp. 823, 953.] and Rhode Island [The commissioners in this case were Cadwallader Colden, Abraham Vanhorn, Phillip Livingston, Archibald Kennedy, and James De Lancey of New York; John Hamilton, John Wells, John Reading, Cornelius Vanhorn, and William Provost of New Jersey; and William Skeene, William Shirreft, Henry Cope, Erasmus James Phillips, and Otho Haymilton of Nova Scotia. See: Board of Trade to Governor Clinton. Ibid., 167-168.], were settled in this way. These commissioners were appointed by the Board of Trade upon the authority of an Order in Council, were composed of men selected from the neighboring colonies, and were usually paid by the two parties to the controversy. This method of payment required the consent of both parties, but it seldom happened that a colony refused to bear its share of the charges. [In regard to a commission for settling the boundary between Massachusetts and Rhode Island, the Board says the charges of which and the execution thereof the agents for the Massachusetts Bay and Rhode Island have agreed are reasonable equally to be bourne by both provinces.'- Letter to Clinton, August 1, 1740. Ibid., 167-168.] In some cases the Board secured authority to pay the expenses of such commissions from the quit rents of the provinces concerned, as was done in settling the southern boundary of Virginia in 1711 and again in 1729 [North Carolina Colonial Records, vol. iii, 13, 17, vol. iv, 28.] . "It is thus seen that the Board of Trade acted as a high court of arbitration for disputes as to territory or jurisdiction. It did not settle disputes on its own authority, but it provided a way by which such controversies could be determined by special commissions. These were in reality special courts of arbitration, which had power to settle the questions at issue, but from which an appeal would lie to the Board. [In form it was an appeal to the king, but as all such complaints and appeals were heard by the Board of Trade, it was in reality an appeal to that body.] If either party were dissatisfied with the decision of such a commission, it could prosecute a complaint in the usual manner; and if its work should appear irregular, another commission was issued to rehear the case. In all this there was an evident attempt to do justice to all parties concerned. . . . The clause in the Constitution regarding changes in state boundaries is but a recognition of the constant practice of the Board of Trade in settling disputes of this character. (Oliver Morton Dickerson, American Colonial Government, 1696-1765, pp. 287, 288, 290–91, 295). The learned writer might have added that such action of the King in Council through the Board of Trade is the precedent for the 9th of the Articles of Confederation, and it would appear, of that large and beneficent jurisdiction with which the Supreme Court of these United States has been endowed by Article II, Section 2 of the Constitution thereof.-ED. 1 The Public Records of the Colony of Connecticut, [Vol. I] 1689 to 1706, C. J. Hoadly ed., 1868, pp. 306-9. 2 Thorpe, Charters and Constitutions, Vol. 1, p. 533; Poore, p. 255. Laws of this grant would reach the King in Council or the Board of Trade through private parties and upon private initiative if at all. In this case the transmitter was at hand in the person of John Winthrop, son of Wait Still Winthrop, Major General of Massachusetts and Chief Justice of its Superior Court, who died intestate in 1717 owning personalty and realty in Connecticut, in which colony he had himself been born a son of the Governor thereof but had preferred to grace Massachusetts by his presence. John Winthrop, of whom Carlyle's mother would doubtless have said, as she said of her son, “he was an ill man to live with," had a sister, Anne, who married a well connected but not too well to do person by the name of Lechmere, who resided at that time in Boston. On behalf of his wife, he claimed one portion of the realty of the father-in-law's Connecticut estate. Winthrop was appointed administrator by the Court of Probates for the County of New London, Colony of Connecticut, in which the realty was situated, and, contending that he was entitled to the real property according to the doctrine of primogeniture, obtaining in the common law of England, did not include the realty in his inventory, as he should have done according to the Connecticut act of 1699 for the settlement of intestate estates. The Court of Probates therefore rejected the inventory and Winthrop, as administrator, thereupon appealed to the Superior Court. Pending the appeal, Lechmere applied to the Court of Probates for new letters of administration, which, however, denied his motion. Thereupon, on appeal to the Superior Court, having the two appeals before it at one and the same time, it decided both of them against Winthrop. The General Assembly refused to intervene in his behalf or allow an appeal to the King in Council. The appeal, however, was made by Winthrop and allowed by the King in Council, and the case on appeal referred to the Committee for Hearing Appeals from the Plantations. Before this Committee Sir Philip Yorke, then Attorney General and later Lord Chief Justice of the King's Bench and Lord High Chancellor, known to lawyers as Lord Hardwicke and to the English speaking world as the greatest of equity judges, and Sir Charles Talbot, then Solicitor General, later Lord Chancellor Talbot, less known perhaps but hardly less deserving than Hardwicke, who succeeded him in the Chancellorship, appeared on behalf of Winthrop. On behalf of Lechmere one Willes, supposed to be Sir John Willes, later Attorney General and Lord Chief Justice of the Common Pleas, and an English barrister by the name of Barton, appeared. Without referring the appeal to the Board of Trade, as was usual in such cases, the Committee for Hearing Appeals from the Plantations heard counsel for plaintiff and defendant and, after argument, recommended that the Connecticut act of 1699 for the settlement of intestate estates, and subse Another Power of Supreme quent acts in the case, be declared null and void as contrary to the common law of England, and that the decisions of the Connecticut courts as against for Granting Winthrop's contention and in favor of Lechmere and his wife be reversed and set aside as based upon the Connecticut statutes contrary to the charter, or, as we should say, as unconstitutional. As the decree of the King in Council approving the recommendation of the Lords of Appeal was well known to the colonists, extending the judicial power to acts of the legislature as well as to judgments of a colonial court, and is the great precedent for investing the Supreme Court of the United States with the power of pronouncing laws unconstitutional and reversing decisions of courts of justice, whether of the State or of the United States, based upon such acts of Congress or such provisions of State constitutions, the material portion of the report of the Lords of Appeal, confirmed by the King in Council, is given in its exact words: 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 intestate 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 . . . sentences . . . rejecting the inventory . . . because it did not contain the real as well as personal estate . . . may be all reversed and set aside; and that the said sentence vacating the said letters of administration to the said Thomas and Anne Lechmere should also be reversed and set aside.1 Commentary upon this case could only weaken its force and effect as the younger Pitt is reported to have said of Erskine's speech following that of Fox, that it only repeated and weakened the arguments of that right honorable gentleman. By the charter of June 26, 1632, the second Lord Baltimore was granted the province, now the State of Maryland, bounded on the north by the 40th parallel of North Latitude, on the west and southwest by a line south of this parallel to the farthest sources of the Potomac, and thence the "further bank" of that river to Chesapeake Bay; on the south by a line across the Bay and peninsula to the Atlantic Ocean; and on the east by that Ocean and Delaware Bay and River.2 1 Privy Council, 1728 (Connecticut Colonial Records, 1726-1735, pp. 571, 577). See also J. B. Scott, Judicial Settlement of Controversies Between States of the American Union, Vol. 1, pp. 93-8. 2 The portion of the charter relating to the boundaries of the colony is, in English translation, as follows: "All that Part of the Peninsula, or Chersonese, lying in the Parts of America, between the Ocean on the East, and the Bay of Chesapeake on the West, divided from the Residue thereof by a Right Line drawn from the Promontory, or Head-Land, called Watkin's Point, situate upon the Bay aforesaid, near the River of Wigloo, on the West, unto the Main Ocean on the East; and between that Boundary on the South, unto that Part of the Bay of Delaware on the North, which lieth under the Fortieth Degree of North Latitude from the Equinoctial, where New England is terminated; And all that Tract of Land within the Metes Court to Declare On March 14, 1681, a charter was granted to William Penn of the tract of territory now known as Pennsylvania in honor of its first proprietor, including, as claimed by Penn, the three lower counties now known as and forming the State of Delaware. The territory was, according to the charter, "bounded on the East by Delaware River, from twelve Miles Distance Northwards of Newcastle Town unto the three-and-fortieth Degree of Northern Latitude, if the said River doth extend so far Northward; but if the said River shall not extend so far Northward, then by the said River so far as it doth extend; and from the Head of the said River, the Eastern Bounds are to be determined by a Meridian Line, to be drawn from the Head of the said River unto the said Forty-third Degree. The said Land to extend Westward five Degrees in Longitude, to be computed from the said Eastern Bounds; and the said Lands to be bounded on the North by the Beginning of the Three-and-fortieth Degree of Northern Latitude, and on the South by a Circle drawn at twelve Miles Distance from Newcastle Northward, and Westward unto the Beginning of the Fortieth Degree of Northern Latitude, and then by a straight Line Westward to the Limits of Longitude, above-mentioned." 1 It will be observed that this grant does not include the town of Newcastle but begins at a point twelve miles to the north thereof. It thus excluded the three lower counties, or, in short, the State of Delaware. William Penn's claim to Delaware is based upon subsequent transactions. On August 24, 1682, he purchased a quit claim from the Duke of York to the lands west of the Delaware River embraced in the grant of Charles II of March 12, 1664, to James, Duke of York, and the confirmation of that grant by letters patent dated June 29, 1674, from Charles II to his brother, the Duke of York. To the laymen it would appear that Pennsylvania could not extend below 40° North Latitude, inasmuch as the province of Maryland was declared by its charter of 1632 to extend to that point, and that degree of latitude was likewise declared to be its northern boundary. It is true that the grant of Charles II to his brother, the Duke of York, of "all the main land of New England . . . and all the land from the west side of Connectiunderwritten (that is to say) passing from the said Bay, called Delaware Bay, in a right Line, by the Degree aforesaid, unto the true meridian of the first Fountain of the River of Pattowmack, thence verging towards the South, unto the further Bank of the said River, and following the same on the West and South, unto a certain Place called Cinquack, situate near the Mouth of the said River, where it disembogues into the aforesaid Bay of Chesapeake, and thence by the shortest Line unto the aforesaid Promontory or Place, called Watkin's Point; so that the whole tract of land, divided by the Line aforesaid, between the main Ocean and Watkin's Point, unto the Promontory called Cape Charles, and every the Appendages thereof, may entirely remain excepted for ever to US, our Heirs and Successors." F. N. Thorpe, The Federal and State Constitutions, Colonial Laws, etc. of the United States, 1909, Vol. iii, p. 1678. 1 The Charters and Acts of Assembly of the Province of Pennsylvania, 1762, Vol. i, p. 1. cut to ye east side of Delaware Bay, confirmed by the letters patent of 1674," included Delaware, or was claimed to do so. Penn was anxious to secure the tract of land from his little city of Philadelphia on the Delaware River, and through which the fortieth degree of north latitude ran, to the mouth of the Delaware Bay, some ninety miles to the south, and he took care to purchase and acquire the title to this tract claimed by the Duke of York under the two grants in question. On the other hand, the proprietor of Maryland was anxious to have his province extend to the fortieth degree of north latitude and be bounded on the north throughout its entire extent by that parallel of latitude. Lord Here was a dispute involving a vast domain, claimed by Lord Baltimore Penn v. under a charter of 1632 granted by Charles I, to which William Penn laid Baltimore claim under a charter granted by Charles II in 1664. The title of the son was preferred to that of the father, contrary to the time honored maxim of the law, prior in tempore, potior in jure. The Duke of York appears to have doubted his title to the three lower counties, or at least thought it well to have whatever cloud there might be upon his title cleared up. He therefore applied to his royal brother, Charles II, for the grant of the counties, which appears to have been made, and which would inure to Penn's benefit, although it might have been and was contended that the grant to the Duke of York subsequent to his sale and conveyance of the same territory to Penn was an evasion, that the title was not, at the time of the earlier transaction, in the Duke, and that therefore it could not pass to his grantee. When the news of the proposed grant of the lower counties to the Duke of York became known to Lord Baltimore, he prayed that it should not be made, in that the territory in question was comprised within his province. Baltimore's petition was referred to the Lords Commissioners for Trade and Plantations, who, under date of November 13, 1685, reported that, “Having examined the matters in difference between the Lord Baltimore and William Penn, Esq., on behalf of His then Majesty, concerning a tract of land called Delaware, they found the land intended to be granted to Lord Baltimore was only lands uncultivated, and inhabited by savages; and that the tract of land then in dispute, was inhabited and planted by Christians at and before the date of the Lord Baltimore's patent, as it had ever been since, to that time, and continued as a distinct colony, from Maryland, so that their Lordships humbly offered their opinion, that for avoiding further differences, the tract of land lying between the river and the eastern sea, on the one side, and Chesapeake Bay on the other, be divided into equal parts, by a line from the latitude of Cape Henlopen to the 40th degree of northern latitude; and that one-half thereof, lying towards the bay of Delaware and |