# American History Told by Contemporaries/Volume 2/Chapter 10

CHAPTER X — COLONIAL COURTS
69. How Juries were Summoned (1710)
The author of this piece was a Swiss, who went out to America in behalf of a land scheme. Other colonies had substantially the same jury system. —Bibliography: Channing and Hart, Guide, §§ 146, 147; B. V. Abbott, Judge and Jury.
THO' it is Commendation sufficient for our Laws, to say they are as nigh to those of England, as conveniently may be, yet we have in several things refin'd upon the English Laws. For instance : The Jurors are not here returned by the Sheriffs, but the Names of all the best qualified Persons in the Country are agreed upon and settled by Act of Assembly, and put together into a Ballot-Box. At the End of every Court this is set upon the Table, before the Judge and Bench, and after it is shaken, a little Child draws out 48 Names, which are read, and a List of them taken by the Sheriff, that he may know whom to summons. These 48 are put in the second Division of the Ballot-Box, out of which, at the opening of the next Court, another Child draws 12, who are to serve as Jurors; and if any just Exception be made, he draws others, untill the Jury be full. The same Method, with little Alteration, is taken in returning Juries for the Sessions of the Peace. The Names of those who have serv'd are put in the third Division of the Box, where they lie till those in the first Division are almost all drawn, and then they are again put into this. The Reason of their lying in the third Division is, because one Set of Persons should not be too much burthen'd, but that all should have an equal Share of the Trouble, as nigh as may be.
The Ballot-Box hath three Locks and Keys, kept by three several Persons appointed by the General Assembly, whereof the Judge of the Court is one ; neither can the Box be opened without the Presence of those three.
The Reason of all this Precaution in returning Jurors is, for the better and more effectual Preservation of the Lives and Estates of the Inhabitants. For the Sheriffs, Marshals, and all other such Officers, being ​appointed by the Governor, and keeping their Places only during his Pleasure, if the returning of Juries lay in their Power, 'tis more than probable, they might at some time or other, pack such Instruments as would be ready to gratify him, to the Ruin of any Person against whom he had conceiv'd Malice or Displeasure. Considering therefore, how easily frivolous and unjust Prosecutions are set on foot, and Evidences fit for any Turn may be procur'd, nothing can be a greater Security than this noble Law ; for after all the Arts and Management betwixt a bad Governor, Judge, and Attorney-General, to carry on an illegal Prosecution, the whole Contrivance is at last spoiled by the Impossibility of Packing a Jury for the Purpose.
A Letter from South Carolina . . . Written by a Swiss Gentleman (London, 1718), 23-24.
70. Charge to a Grand Jury (1753)
Dinwiddie was lieutenant-governor of Virginia from 1751 to 1758, and his letters show him to have been vigorous and able. The charge to the grand jury was often made a political harangue. — Bibliography : Winsor, Narrative and Critical History, V, 268-270.
Gentlemen of the Grand Jury :
YOU are here assembled and sworn to the Execution of the most Important Trust that can be repos'd in Men. To enact Laws, is indeed the Work of the Supream Legislature, but upon the Execution of those Laws, not only the Happiness, but the very Being of Society more imediately depends. It is therefore from You, Gentlemen, that the Public is to derive whatsoever distinguishes a free and well govern'd Comunity from a Band of migrating Savages, who have no Principal of Action but Appetite, and no rule of Right, but Power. Temptations to Violence, and to Fraud are so various and frequent, that it is no Wonder they are not always resisted. Mankind are perpetually deviating into Disorder and Escaping from the Bond of Society. It is therefore necessary for the Magistrate to watch the Earliest Efforts of Oppression, and the first Sallies of Intemperance with the greatest Circumspection, and imediately to restore the general Order as often as it is interupted. The Crimes by which religion is Prophap'd, Allegiance ​to the King broken, Property invaded, and reputation sullied, are so multiplied that the List is a Satyre on our Species, and [I] wish I ccu'd be excus'd from enumerating the many Ways by w'ch human Nature has been degraded, but I am compell'd to display the Cataloge before you, and some of the Articles I hope you will be able effectually to wipe out. You are, Gent., to punish all who dare Blaspheam Almighty God, a Crime which seems to include a Capacity for all others, for what may not be dreaded from the Wretch who reviles infinite Goodness, ridicules consumate Wisdom, and defies unbounded Power, as a lower Species of this Offence. You are to take Notice of the contemptuous Violation of the Sabbath, w'ch is an Outrage on every Christian ; and of the horrid Oaths and Imprecations, w'ch wou'd make a Mahomitan tremble.
Perjury in Judicial Concerns is a dreadful Complicat'n of Guilt, it's a daring Insult on the Deity, and the most scandalous, as well as dangerous Invasion of the Property of Others.
Drunkenness, also, however Venial and trifling in comon Estimation, is to be class [ed] Among the Offences w'ch are more imediately comitted against the Majesty of Heaven, as it debases His Image, and abuses His Bounty. You are next to present all the Species of Treason and misprison of Treason, w'ch are Offences comitted against His most Sacred Majesty, under w ch is included : — Counterfeiting the Coin, or bringing false Coin into the Colony, or counterfeiting forcing Coin that are current here, and uttering seditious Words against His Majesty's Person and Gov't. The Crimes that relate to our Fellow Subjects are — Murder, Burglary, robbing on the High-Way, Stealing, or receiving stolen Goods, riots, routs, or unlawful Assemblies, Assaults, or in general, all Gaming, Bribary, Extortion, keeping disorderly Houses, Cheats, Nuisances and Neglect to repair the High-Ways and Bridges. Such, Gent, is a List of Crimes you are to present, w'ch, yet, is far from including all possible Methods, by w'ch ingenious Wickedness may deviate from the rules of Society. For that there is a constant Succession of new Vices, or at least new Modes of Vice, for the Evasion of Legal Punishment, is the constant Experience of every Legislature, as appears from the perpetual enaction of new Laws. When therefore on Y'r Enquiries, you shall perceive any of these malignant Plants spring up, Y'r Duty to Y'r God, Your King, Y'r Country and Y'r Selves, requires that you exert all Your Power for their imediate Destruction.
Great indeed is this Task, Gent., but the Order of our happy ​Constitution directs the Performance thereof, and I Congratulate the Publick and myself, that it is in so able Hands, and I doubt not but that you will acquit Y'r Selves so as to not only to have the Praise of Men, but also the Blessing of God.
My fourth Charge, Oct'r 16th, 1753.
The Official Records of Robert Dinwiddie (Virginia Historical Society, Collections, New Series, III, Richmond, 1883), I, 35-37.
71. Records of a Precinct Court (1693/4)
This is an interesting example of the records of a court of first instance for petty causes. — Bibliography: Channing and Hart, Guide, § 147.
AT A COURT HOLDEN AT THE HOUSE OF DIANA FFOSTERS — THE FFIRST MUNDAY IN FFEBRUARY ANN$^o$ DO. 1693-4 . . .
Mrs. Durant enters for her two Grand Children a young sorrell mare with a star in her forhead Called Bonne the same mare & her increase & increases to to Ann and Elizabeth Waller to them and their heires for ever.
Thomas Lepper has proved ten Rights in ye County Court Tho Kent Ann his wife Sarah Kent Rebeccah Kent Ann Kent Jun$^r$ John Thomas W$^m$ Brown W$^m$ Brickstone Tho Lepper Nicholas Robeson
John Barrow proves three rights by importation Robert Tester Simon Smith and a negroe Jean
Thomas Pierce has proved his rights being Thomas Pierce John Pierce Susanna Ruth Pierce Dorothy Pierce Mary Pierce Mary Bridges John Wilkeson and John Pierce in all nine Rights
Hannah Gosby has entered nine Rights Jno. Gosby Jn$^o$ Anderson John Kinsey Richard Waterlow Kathrine Kinsey Jean Anderson & 3 hands from Jno Northcoate Joseph Hepworth Jeremiah White & Henry Clay sen$^r$ in all nine Rights
Peter Gray Proves two Rights for himselfe transporting twice into the Governm$^{te}$ and one given him by John Twegar . . .
Upon a petition exhibited by Jabell Alford praying to have liberty to chuse a Guardian. Ordered that the said Jabell Alford be bound to ​M$^{rs}$ Susanna Hartley Widow untill he be one and twenty yeares of age & that y$^e$ said M$^{rs}$ Hartly be bound and enter into bond to learne him the trade of a Carpenter or Joyner wthin y$^e$ said time. . . .
[November 6.] A Bill of enditem$^{te}$ was Brought ag$^t$ W$^m$ Shreenes and presented to y$^e$ Grand Jury y$^e$ Grand Jury finds Billa vera y$^e$ Petty Jury was sent out & found y$^e$ Priso$^r$ guilty of Petty Larceny & so returned y$^e$ Bill whereupon he was ordered by the Court to have 30 lashes upon his naked back stript to his wast & sevearly Whipt and be bound to serve for his Phees one yeare and half from this day 9$^{hrs}$ 9th to his M$^r$ John Hatton besides his former Indenture of ffive yeares . . .
A Bill of enditem$^{te}$ was brought ag$^t$ Robert White & Vincent White his son & presented to y$^e$ Grand Jury The Grand Jury finds Billa vera The petty Jury was sent out and they brought their verdict they found y$^e$ prisoners guilty of Grand Larceny & they craved the Benefit of y$^e$ clargey w$^{ch}$ being granted Ordered that they be branded in y$^e$ hand wth the letter T : upon y$^e$ Brawn of y$^e$ left thumbe w$^{ch}$ was executed accordingly on Rob$^t$ White ; y$^e$ other reteined to long$^r$ Time or be delivered by the Palatines Court . . .
Susana Harris enters for her daughter Sarah her proper Marke a crop & two Slitt on y$^e$ left ear & an over keele & an under keele on y$^e$ Right ear.
William L. Saunders, editor, The Colonial Records of North Carolina (Raleigh, 1886), I, 392-402 passim.
72. A Prosecution for Criticising Government (1734)
Zenger was the publisher of the New York Weekly Journal, and was prosecuted for teaching contempt of His Majesty's government. His acquittal is a landmark in the history of the press and of freedom of speech in America. — Bibliography : Winsor, Narrative and Critical History, V, 242; Channing and Hart, Guide, § 105.
'New-York, ss. BE it remembred, That Richard Bradley, Esq ; Attorney General of Our Sovereign Lord the King, for the Province of New-York, who for Our said Lord the King in this Parts Prosecutes, in his own proper Person comes here into the Court of Our said Lord the King, and for Our said Lord the King gives the Court here to understand, and be informed, That John Peter Zenger, late of the City of New-York, Printer, (being a seditious Person, and a ​frequent Printer and Publisher of false News and seditious Libels, and wickedly and maliciously devising the Government of Our said Lord the King of this His Majesty's Province of New-York, under the Administration of His Excellency William Cosby, Esq ; Captain General and Governour in Chief of the said Province, to traduce, scandalize and vilify, and His Excellency the said Governour, and the Ministers and Officers of Our said Lord the King of and for the said Province to bring into Suspicion and the ill Opinion of the Subjects of Our said Lord the King residing within the said Province) the Twenty eighth Day of January, in the seventh Year of the Reign of Our Sovereign Lord George the second, by the Grace of God of Great Britain, France and Ireland, King, Defender of the Faith, &c. at the City of New-York, did falsly, seditiously and scandalously print and publish, and cause to be printed and published, a certain false, malicious, seditious, scandalous Libel, entituled, The New-York Weekly Journal, containing the freshest Advices foreign and domestick ; in which Libel (of and concerning His Excellency the said Governour, and the Ministers and Officers of Our said Lord the King, of and for the said Province) among other Things therein contained are the Words "Your Appearance in Print at last", gives a Pleasure to many, tho most wish you had come fairly into the open Field, and not appeared behind Retrenchments made of the supposed Laws against Libelling, and of what other Men have said and done before ; these Retrenchments, Gentlemen, may soon be shewn to you and all Men to be weak, and to have neither Law nor Reason for their Foundation, so cannot long stand you instead : Therefore, you had much better as yet leave them, and come to what the People of this City and Province (the City and Province of New-York meaning) think are the Points in Question (to wit) They (the People of the City and Province of New-York meaning) think as Matters now stand, that their LIBERTIES and PROPERTIES are precarious, and that SLAVERY is like to be intailed on them and their Posterity, if some past Things be not amended, and this they collect from many past Proceedings." (Meaning many the past Proceedings of His Excellency of the said Governour, and of the Ministers and Officers of our said Lord the King, of and for the said Province) . . . among other Things therein contained, are these Words, ["] One of our Neighbours (one of the Inhabitants of New-Jersey meaning) being in Company, observing the Strangers (some of the Inhabitants of New-York meaning) full of Complaints, endeavoured to perswade them to remove into Jersey ; to which it was replied, that ​would be leaping out of the Frying Pan into the Fire ; for, says he, we both are under the same Governour (His Excellency the said Governour meaning) and your Assembly have shewn with a Witness what is to be expected from them ; one that was then moving to Pensilvania, (meaning one that was then removing from New-York, with intent to reside at Pensilvania) to which Place it is reported several considerable Men are removing (from New-York meaning) expressed in Terms very movong much Concern for the Circumstances of New-York (the bad Circumstances of the Province and the People of New-York meaning) seemed to think them very much owing to the Influence that some Men (whom he called Tools) had in the Administration (meaning the Administration of Government of the said Province of New-York) said he was now going from them, and was not to be hurt by any Measures they should take, but could not help having some Concern for the Welfare of his Country Men, and should be glad to hear that the Assembly (meaning the General Assembly of the Province of New-York) would exert themselves as became them, by shewing that they have the Interest of their Country more at Heart, than the Gratification of any private View of any of their Members, or being at all affected, by the Smiles or Frowns of a Governour, (His Excellency the said Governour meaning) both which ought equally to be despised, when the Interest of their Country is at Stake. You, says he, complain of the Lawyers, but I think the Law it self is at an End, WE (the People of the Province of New-York meaning) SEE MENS DEEDS DESTROYED, JUDGES ARBITRARILY DISPLACED, NEW COURTS ERECTED, WITHOUT CONSENT OF THE LEGISLATURE (within the Province of New-York meaning) BY WHICH IT SEEMS TO ME, TRYALS BY JURIES ARE TAKEN AWAY WHEN A GOVERNOR PLEASES, (His Excellency the said Governour meaning) MEN OF KNOWN ESTATES DENYED THEIR VOTES, CONTRARY TO THE RECEIVED PRACTICE, THE BEST EXPOSITOR OF ANY LAW : Who is then in that Province (meaning the Province of New-York,) that call (can call meaning) any Thing his own, or enjoy any Liberty (Liberty meaning) longer than those in the Administration (meaning the Administration of Government of the said Province of New-York) will condescend to let them do it, for which Reason I have left it, (the Province of New-York meaning) as I believe more will." To the great Disturbance of the Peace of the said Province of New-York, to the Great Scandal of Our said Lord the King, of His Excellency the said ​Governor, and of all others concern d in the Administration of the Government of the said Province, and against the Peace of Our Sovereign Lord the King His Crown and Dignity, &c. Whereupon the said Attorney General of Our said Lord the King, for Our said Lord the King, prays the Advisement of the Court here, in the Premises, and the due Process of the Law, against him the said John Peter Zenger, in this Part to be done, to answer to Our said Lord the King of and in the Premises, &c.
R. Bradley, Attorney General.'
To this Information the Defendant has pleaded Not Guilty, and we are ready to prove it. ...
Then Mr. Hamilton, who at the Request of some of my Friends, was so kind as to come from Philadelphia to assist me on the Tryal, spoke.
Mr. Hamilton, May it please your Honour ; I am concerned in this Cause on the Part of Mr. Zenger the Defendant. The Information against my Client was sent me, a few Days before I left Home, with some Instructions to let me know how far I might rely upon the Truth of those Parts of the Papers set forth in the Information, and which are said to be libellous. And tho I am perfectly of the Opinion with the Gentleman who has just now spoke, on the same Side with me, as to the common Course of Proceedings, I mean in putting Mr. Attorney upon proving, that my Client printed and published those Papers mentioned in the Information ; yet I cannot think it proper for me (without doing Violence to my own Principles) to deny the Publication of a Complaint, which I think is the Right of every free-born Subject to make, when the Matters so published can be supported with Truth ; and therefore I'll save Mr. Attorney the Trouble of Examining his Witnesses to that Point ; and I do (for my Client) confess, that he both printed and published the two News Papers set forth in the Information, and I hope in so doing he has committed no Crime. . . .
Mr. Attorney, . . . The Case before the Court is, whether Mr. Zenger is guilty of Libelling his Excellency the Governor of New-York, and indeed the whole Administration of the Government? Mr. Hamilton has confessed the Printing and Publishing, and I think nothing is plainer, than that the Words in the Information are scandalous, and tend to Sedition, and to disquiet the Minds of the People of this Province. And if such Papers are not Libels, I think it may be said, there can be no such Thing as a Libel.
Mr. Hamilton, May it please your Honour ; I cannot agree with Mr ​Attorney : For tho' I freely acknowledge, that there are such Things as Libels, yet I must insist at the same Time, that what my Client is charged with, is not a Libel ; and I observed just now, that Mr. Attorney in denning a Libel, made use of the Words scandalous, seditious, and tend to disquiet the People ; but (whether with Design or not I will not say) he omitted the Word false.
Mr. Attorney, I think I did not omit the Word false : But it has been said already, that it may be a Libel, notwithstanding it may be true.
Mr. Hamilton, In this I must still differ with Mr. Attorney ; for I depend upon it, we are to be tried upon this Information now before the Court and Jury, and to which we have pleaded Not Guilty, and by it we are charged with printing and publishing, a certain false, malicious, seditious and scandalous Libel. This Word false must have some Meaning, or else how came it there? . . .
Mr. Ch. Justice, You cannot be admitted, Mr. Hamilton, to give the Truth of a Libel in Evidence. A Libel is not to be justified ; for it is nevertheless a Libel that it is true.
Mr. Hamilton, I am sorry the Court has so soon resolved upon that Piece of Law ; I expected first to have been heard to that Point. I have not in all my Reading met with an Authority that says, we cannot be admitted to give the Truth in Evidence, upon an Information for a Libel.
Mr. Ch. Justice, The Law is clear, That you cannot justify a Libel . . .
Mr. Hamilton, I thank your Honour. Then, Gentlemen of the Jury, it is to you we must now appeal, for Witnesses, to the Truth of the Facts we have offered, and are denied the Liberty to prove ; and let it not seem strange, that I apply my self to you in this Manner, I am warranted so to do both by Law and Reason. The Last supposes you to be summoned, out of them Neighbourhood where the Fact is alledged to be committed; and the Reason of your being taken out of the Neighbourhood is, because you are supposed to have the best Knowledge of the Fact that is to be tried. And were you to find a Verdict against my Client, you must take upon you to say, the Papers referred to in the Information, and which we acknowledge we printed and published, are false, scandalous and seditious ; but of this I can have no Apprehension. You are Citizens of New-York ; you are really what the Law supposes you to be, honest and lawful Men ; and, according to my Brief, the Facts which we offer to prove were not committed in a Corner ; they are notoriously known to be true ; and therefore in your Justice lies our ​Safety. And as we are denied the Liberty of giving Evidence, to prove the Truth of what we have published, I will beg Leave to lay it down as a standing Rule in such Cases, That the suppressing of Evidence ought always to be taken for the strongest Evidence ; and I hope it will have that Weight with you. . . .
. . . It is true in Times past it was a Crime to speak Truth, and in that terrible Court of Star-Chamber, many worthy and brave Men suffered for so doing ; and yet even in that Court, and in those bad Times, a great and good Man durst say, what I hope will not be taken amiss of me to say in this Place, to wit, the Practice of Informations for Libels is a Sword in the Hands of a wicked King, and an arrand Coward to cut down and destroy the innocent] the one cannot, because of his high Station, and the other dares not, because of his Want of Courage, revenge himself in another Manner.
Mr. Attorney, Pray Mr. Hamilton, have a Care what you say, don't go too far neither, I don't like those Liberties.
Mr. Hamilton, Sure, Mr. Attorney, you won't make any Applications ; all Men agree that we are governed by the best of Kings, and I cannot see the Meaning of Mr. Attorney s Caution, my well known Principles, and the Sense I haye [have] of the Blessings we enjoy under his present Majesty, makes it impossible for me to err, and I hope, even to be suspected, in that Point of Duty to my King. May it please Your Honour, I was saying, That notwithstanding all the Duty and Reverence claimed by Mr. Attorney to Men in Authority, they are not exempt from observing the Rules of common Justice, either in their private or publick Capacities ; the Laws of our Mother Country know no Exception. . . .
I hope to be pardon'd, Sir, for my Zeal upon this Occasion : It is an old and wise Caution, That when our Neighbour s House is on Fire, we ought to take Care of our own. For tho', blessed be God, I live in a Government where Liberty is well understood, and freely enjoy'd ; yet Experience has shewn us all (I'm sure it has to me) that a bad Precedent in one Government, is soon set up for an Authority in another ; and therefore I cannot but think it mine, and every Honest Man's Duty, that (while we pay all due Obedience to Men in Authority) we ought at the same Time to be upon our Guard against Power, wherever we apprehend that it may effect Ourselves or our Fellow-Subjects.
I am truly very unequal to such an Undertaking on many Accounts. And you see I labour under the Weight of many Years, and am born down with with great Infirmities of Body; yet Old and Weak as I am, ​I should think it my Duty, if required, to go to the utmost Part of the Land, where my Service cou'd be of any Use in assisting to quench the Flame of Prosecutions upon Informations, set on Foot by the Government, to deprive a People of the Right of Remonstrating, (and complaining too) of the arbitrary Attempts of Men in Power. Men who injure and oppress the People under their Administration provoke them to cry out and complain ; and then make that very Complaint the Foundation for new Oppressions and Prosecutions. I wish I could say there were no Instances of this Kind. But to conclude ; the Question before the Court and you, Gentlemen of the Jury, is not of small nor private Concern, it is not the Cause of a poor Printer, nor of New-York alone, which you are now trying ; No ! It may in its Consequence, affect every Freeman that lives under a British Government on the Main of America. It is the best Cause. It is the Cause of Liberty ; and I make no Doubt but your upright Conduct, this Day, will not only entitle you to the Love and Esteem of your Fellow-Citizens ; but every Man, who prefers Freedom to a Life of Slavery, will bless and honour You, as Men who have baffled the Attempt of Tyranny ; and by an impartial and uncorrupt Verdict, have laid a noble Foundation for securing to ourselves, our Posterity, and our Neighbours, That to which Nature and the Laws of our Country have given us a Right, — The Liberty — both of exposing and opposing arbitrary Power (in these Parts of the World, at least) by speaking and writing Truth. . . .
Mr. Ch. Just. Gentlemen of the Jury. The great Pains Mr. Hamilton has taken, to shew how little Regard Juries are to Pay to the Opinion of the Judges ; and his insisting so much upon the Conduct of some Judges in Tryals of this kind ; is done, no doubt, with a Design that you should take but very little Notice of what I may say upon this Occasion. I shall therefore only observe to you that, as the Facts or Words in the Information are confessed : The only Thing that can come in Question before you is, Whether the Words, as set forth in the Information, make a Libel. And that is a Matter of Law, no doubt, and which you may leave to the Court. But I shall trouble you no further with any Thing more of my own, but read to you the Words of a learned and upright Judge in a Case of the like Nature.
To say that corrupt Officers are appointed to administer Affairs, is certainly a Reflection on the Government. If People should not be called to account for possessing the People with an ill Opinion of the Government, no Government can subsist. For it is necessary for all ​Governments that the People should have a good Opinion of it. And nothing can be worse to any Government, than to endeavour to procure Animosities ; as to the Management of it, this has been always look'd upon as a Crime, and no Government can be safe without it be punished.
'Now you are to Consider, whether these Words I have read to you, do not tend to beget an Ill Opinion of the Administration of the Government? To tell us, that those that are employed know nothing of the Matter, and those that do know are not employed. Men are not adapted to Offices, but Offices to Men, out of a particular Regard to their Interest, and not to their Fitness of the Places ; this is the Purport of these Papers.'
Mr. Hamilton, I humbly beg Your Honour's Pardon ; I am very much mis-apprehended, if you suppose what I said was so designed.
Sir, you know, I made an Apology for the Freedom I found my self under a Necessity of using upon this Occasion. I said, there was Nothing personal designed ; it arose from the Nature of our Defence.
The Jury withdrew, and in a small Time returned, and being asked by the Clerk, Whether they were agreed of their Verdict, and whether John Peter Zenger was guilty of Printing and Publishing the Libels in the Information mentioned? They answered by Thomas Hunt, their Foreman, Not Guilty. Upon which there were three Huzzas in the Hall which was crowded with People, and the next Day I was discharged from my Imprisonment.
[A Brief Narrative of the Case and Tryal of John Peter Zenger, Printer of the New-York Weekly Journal], (no title-page, New York, 1738), 10-30 passim.
73. An Appeal Case in the Privy Council (1727/8)
This is the final judgment in one of the few cases actually brought to a decision on appeal to the English government. The practice prepared the way for appeals to our present Supreme Court. — Bibliography : P. L. Ford, List of some Briefs in Appeal Cases.
AT the Court at St. James's, the 15th day of February, 1727.
[L.S.] Present: The King's Most Excell$^t$ Majesty.
| Lord President, | Earl of Scarborough, |
| Lord Privy Scale, | Earl of Loudoun, |
| Lord Steward, | Earl of Uxbridge, |
| Lord Chamberlain, | Earl of Sussex, |
| Duke of Ancaster, | Visco$^t$ Cobham, |
| Duke of Newcastle, | Visco$^t$ Torrington, |
| Earl of Lincoln, | Lord Berkeley of Stratton, |
| Earl of Westmoreland, | Lieut. General Wills, |
| Earl of Berkeley, | Sr. Robert Sutton. |
Upon reading this day at the Board a Report from the Rt. Hon$^{ble}$ the Lords of the Committee for hearing Appeals from the Plantations, dated the 20th day of December last . . .
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, entituled An Act for the settlement of intestate 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 June, 1725, of the 28th of Sept$^r$, 1725, and of the 22d March, 17256, 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,17256, vacating ​the said letters of administration granted to the petitioner, and granting administration to the said Thomas and Ann Lechmere, be also reversed and set aside ; and that the said letters of administration, so granted to 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 Ann his wife, be vacated ; and that the said 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 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 directions of the said sentences, all, every, or any of them, be forthwith repaid to him by the said Thomas Lechmere ; and that the suit brought by the said Thomas Lechmere and Anne his wife, on which the said sentences were made, be and they are hereby dismissed ; and that all acts and proceedings done and had under the said sentences, all, every, or any of them, or by virtue or pretence thereof, be and they are hereby discharged and set aside, and declared null and void. And his Majesty is further pleased to declare, that the aforementioned act of Assembly, passed in May, 1726, empowering the said Thomas Lechmere to sell the said lands, is null and void ; and also that the said order made by the said superior court, bearing date the 27th of Sept$^r$ , 1726, pursuant to the said act of Assembly, allowing the said Lechmere to sell of the said real estate to the value of ninety pounds current money there for his charges, and three hundred and eighteen pounds silver money, is likewise null and void ; and the said act of Assembly and order of the said superior court are accordingly hereby declared null and void, and of no force or effect whatever.
And his Majesty doth hereby likewise further order, that the petitioner be immediately restored and put into the full, peaceable and quiet possession of all such parts of the said real estate as may have been taken from him, under pretence of, or by virtue or colour of the said sentence, orders, acts and proceedings, or any of them ; and that the said Thomas Lechmere do account for and pay to the said petitioner the rents and profits thereof, and of every part thereof, received by him or any one under him, for and during the time of such his unjust detention thereof.
And the Governour and Company of his Majesty's Colony of Connecticut for the time being, and all other officers and persons ​whatsoever, whom it may concern, are to take notice of his Majesty's royal pleasure hereby signified, and yield due obedience to every particular part thereof, as they will answer the contrary at their peril.
Charles J. Hoadly, editor, The Public Records of the Colony of Connecticut, 1726-1735 (Hartford, 1873), VII, 571-579 passim.
74. Defects of Colonial Judicature (1764) BY LATE GOVERNOR THOMAS POWNALL
THE crown directs its governor to erect courts and appoint the judges thereto. — The actual appointment of the judges is no where directly disputed. —— But the power of erecting courts, according to this instruction, is, I believe, universally disputed ; it being a maxim universally maintained by the Colonists, that no court can be erected but by act of legislature. —— Those who reason on the side of the crown, — say, — that the crown does not, by erecting courts in the colonies, claim any right of enacting the jurisdiction of those courts, or the laws whereby they are to act. —— The crown names the judge, establishes the court, but the jurisdiction is settled by the laws of the realm; — and "customs, precedents, and common judicial proceedings of a court are a law to the court, and the determination of courts make points to be law." —— The reasoning of the Colonists would certainly hold good against the erection of any new jurisdiction, established on powers not known to the laws of the realm ; but how it can be applied to the opposing the establishment of courts, the laws of whose practice, jurisdiction and powers are already settled by the laws of the realm, is the point in issue, and to be determined. It will then be fixed, beyond dispute, whether the crown can, in its colonies, erect, without the concurrence of the legislature, courts of Chancery, Exchequer, King's Bench, Common Pleas, Admiralty, and Probate or Ecclesiastical courts. —— If it should be determined in favour of the reasoning, and the claims of the Colonists, — I should apprehend that the consideration of the points under this head, would become an object of government here, even in its legislative capacity. —— In which view it may be of consequence to consider, how far, and on what grounds, the rights of the crown are to ​be maintained by courts of King's Bench, &c. and how far the revenues by courts of Exchequer, and how far the crown and subject may have relief by courts of equity. —— If in this view we consider the defects which must be found in Provincial courts, those point out the necessity of the establishment of a remedial general court of Appeal ; but if we view the only mode of appeal, which at present exists, we shall see how inapplicable, how inadequate that court is. I cannot, in one view, better describe the defects of the provincial courts in these infant governments, than by that very description which my Lord Chief Justice Hales gives of our county courts, in the infancy of our own government, wherein he mentions,
"First, The ignorance of the judges, who were the freeholders of the county.
"Secondly, That these various courts bred variety of law, especially in the several counties, for the decisions or judgments being made by divers courts, and several independent judges and judicatories, who had no common interest amongst them in their several judicatories, thereby in process of time, every several county would have several laws, customs, rules, and forms of proceedings. ——
"Thirdly, That all the business of any moment was carried by parties and factions, and that those of great power and interest in the county did easily overbear others in their own causes, or in such wherein they were interested, either by relation of kindred, tenure, service, depend ence, or application."
Upon the first article of this parallel, it will be no dishonour to many gentlemen sitting on the benches of the courts of law in the colonies, to say, that they are not, and cannot be expected to be lawyers, or learned in the law. And on the second article it is certain, that although it be a fundamental maxim of colony administration, that the colonies shall have no laws contrary to the laws of Great Britain, yet, from the fluctuation of resolutions, and confusion in the construction and practice of the law in the divers and several colonies, it is certain, that the practice of their courts, and their common law, must be not only different from each other, but in the consequence different also from that of Great Britain. In all the colonies the common law is received as the foundation and main body of their law ; but each colony being vested with a legislative power, the common law is thereby continually altered ; so that (as a great lawyer of the colonies has said) "by reason of the diversity of the resolutions, in their respective superior courts, and of the several ​new acts or laws made in them severally ; the several systems of the laws of those colonies grow more and more variant, not only from one another, but also from the laws of England."
Under the third article, I fear experience can well say, how powerfully, even in courts, the influence of the leaders of party have been felt in matters between individuals. But in these popular governments, and where every executive officer is under a dependence for a temporary, wretched, and I had almost said, arbitrary support to the deputies of the people, — it will be no injustice to the frame of human nature, either in the person of the judges, of the juries, or even the popular lawyer to suggest, how little the crown, or the rights of government, when opposed to the spirit of democracy, or even to the passions of the populace, has to expect of that support, maintenance, and guardianship, which the courts are even by the constitution supposed to hold for the crown — Nor would it be any injustice to any of the colonies, just to remark in this place, how difficult, if ever practicable it is in any of their courts of common law to convict any person of a violation of the laws of trade, or in any matter of crown revenue. Some of our acts of parliament direct the prosecution and punishment of the breach of the laws of trade, to take its course in the courts of Vice-admiralty : And it has been thought by a very great practitioner, that if the laws of trade were regulated on a practicable application of them to the state of the colony trade, that every breach of them should be prosecuted in the same way. That there should be an advocate appointed to each court from Great Britain, who, having a proper salary independent of the people, should be directed and empowered to prosecute in that court, not only every one who was an offender, but also every officer of the customs, who through neglect, collusion, oppression, or any other breach of his trust became such. — Here I own, was it not for the precedent already established by some of the laws of trade, I should doubt the consistency of this measure with the general principle of liberty, as established in the trials by a jury in the common law courts. If these precedents can reconcile these proceedings to the general principles of liberty, there can be no more effectual measure taken ; yet such precedents should be extended with caution. The defect in most, and actual deficiency in many of the colonies, of a court of equity, does still more forcibly lead to the necessity of the measure of some remedial court of appeal and equity. . . .
Thomas Pownall, The Administration of the Colonies (London, 1765), 75-80.