Page images
PDF
EPUB

of Interests

their acts of legislation were within the charter or grant would have placed
their future wholly within their own hands, and would have amounted to a re-
nunciation on the part of Great Britain of its rights to the colonies. To have
conceded to Great Britain the right to pass upon these questions would or
might have been fatal to the colonies, as the mother country might fairly be
counted upon, with the best of intentions, to interpret the laws in its own
interest. There was thus a conflict of interests, and there was in the nature Conflict
of things a difficulty arising from the conflict which neither, intent on its own
interest, could appreciate in so far as it affected the other. Yet the solution
of the difficulty by Great Britain was, if not free from fault, far from faulty,
and familiarity with the difficulty and with the method of overcoming it en-
abled the United States, when the colonies had cut adrift and set up for them-
selves, to meet and to solve the difficulty which presented itself, and which
must always present itself, in an empire with self-governing colonies, in a union
of States conferring upon an agent the exercise of large sovereign powers,
in the unconscious association of nations which we call the society of nations,
the members whereof are indeed sovereign powers.

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 Trade and Plantations, composed of great dignitaries, who were members of

Commissioners
of Trade
and Plantations

Committee for Hearing Appeals

Three
Kinds of
Appeals
from

Colonial
Courts

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

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 Power of Court over

the Supreme

Legislatures

Suit of a Citizen v. a State

Holden and Green Petition

Randall Holden and John Green in behalf of themselves and of his Majestys oppressed Subjects the Inhabitants of the Towne of Warwick, and of other adjacent Places belonging to his Majestys Colony of Road Island and Providence Plantation in New-England, Setting forth the great Miserys and Calamitys they have undergone as well from the Government of the Massachusets, As by the unjust Proceedings of the Commissioners chosen out of the Three United Colonys of New Plymouth, Massachuset and Connecticut, not only in granting and awarding to one William Harris of Patuxet the Lands bought and improved by the Petitioners but giving him great Damages, notwithstanding the Testimony of one Mr. Williams the first Indian Purchaser of those Lands and other Materiall Witnesses on the Petitioners Behalf as by the Petition more at large appears. . . .1

The petitioners, however, were not content to have justice done in their individual cases. They put the ax to the tree, and recommended what the framers of the Constitution of the States did a century subsequently, not merely for New England but for the original thirteen States and all others composing the more perfect Union under the Constitution. After praying that "a Stop may be put to the Proceedings of the said Commissioners," they specifically ask "that for determining this and the like Differences that may and will arise between Colony and Colony, and for avoyding chargable Appeals from those remote parts His Majesty would be pleased to settle his Royall Authority over the whole country of New England, and erect a supreme and indifferent Judicature there."

The case is a very interesting one in itself, and necessarily makes a strong appeal to a New Englander, inasmuch as it reminds him of the New England Confederation established in 1643, and then in effect. The Commissioners thereof appear to have passed adversely upon the case of the petitioners, so much to their annoyance that they carried their appeal to the Privy Council, not only in their own behalf, but in behalf of the other inhabitants of the town, against Massachusetts and the Commissioners of the New England Confederation, thus involving the three colonies of Massachusetts, Plymouth and Connecticut, of which the Confederation was then formed.

But the case has a larger interest and makes an appeal to Americans without distinction, for it seems to be a precedent for the extension of the judicial power of the United States to the suit of a citizen of a State against another State of the American Union, as intimated by Chief Justice White, in delivering the opinion of the Supreme Court in Virginia v. West Virginia, (246 U. S., 565), decided in 1918. Therefore, the facts and the proceedings of this interesting controversy are stated somewhat at length and in detail.

The petition of Messrs. Holden and Green, "Deputyes for the Towne of Warwick and Colony in Road Island," represented to His Majesty in council "that some Persons within the Corporation of the Massachusetts Bay had 1 Acts of the Privy Council, Colonial Series, 1613-1680, Vol. i, p. 785, § 1224.

by a printed paper affixed in publique places in New England, layd Claime to a Tract of Land, called the Kings Province," which the petitioners claimed belonged to His Majesty, and was subject to the jurisdiction of Rhode Island. The said printed paper in question was read at the board, and a copy thereof was ordered to be sent to the agents for Massachusetts, who were directed to attend two days later, "to shew by what authority or Title Simon Bradstreete Deputy Governor, or other Inhabitants of that Colony have by a printed Paper called an Advertisement dated at Boston the 30th of July last, layd Clayme to the Land of Narragansett and Niantic Countreyes, called the Kings Province.” 1

From the record of the Privy Council in the case, dated December 13, 1678, it appears that the agents of Massachusetts complied with the direction, and declared "that the Government of the Massachusetts is not at all concerned in this clayme, but only some Inhabitants, who had purchased those Lands from the Indyan sachins."

From the testimony of Messrs. Holden and Green, it appears that they had inhabited the region in question for above forty years; that the sachems and Indians of Narragansett had voluntarily submitted, with their peoples, to the government of his late Majesty, Charles I, by a deed dated April 19, 1644, that the purchases made in 1659 by one Major Atherton and others of the Massachusetts Colony were null and void, and were declared to be so by His Majesty's Commissioners for settling the Royal authority in New England, who visited Rhode Island in 1665, and who ordered the purchasers to vacate the lands, and declared "that the Magistrates of Rhode Island should exercise the authority of Justices of the Peace in the Narragansett Country, by them called the Kings Province . . . untill his Majestyes pleasure should be farther knowne." 2

Without losing ourselves in a wilderness of detail concerning these boundary disputes, it is sufficient to say that Connecticut claimed by its charter of 1662, that the territory in question, and indeed all of the present State of Rhode Island, as far east as the Narragansett River, "comonly called Norrogancett Bay, where the said River falleth into the Sea"; that Rhode Island, by virtue of its charter of 1663 claimed the land in question " to the middle or channel of a river there, commonly called and known by the name of Pawcatuck," thus making of that river the eastern boundary of Connecticut, and by an agreement of the agents of Connecticut and Rhode Island, who secured their respective charters, to harmonize the overlapping grants of their charters by providing in the Rhode Island charter "that the sayd Pawcatuck river shall bee alsoe called alias Norrogansett or Narrogansett river, and that that river in our late graunt to Connecticut Collony mentioned as the easterly bounds of 1 Ibid., pp. 790-1, §§ 1233, 1234.

2 Ibid., p. 791, § 1234.

« PreviousContinue »