REVIEW AND RECORD IN CRIMINAL CASES —BAYARD AND HUTCHINS 
In seventeenth-century practice we noticed the frequent de novo character of 
appellate hearings before the Lords Committee. In examining eighteenthcentury 
usage as to appellate admissibility of new evidence, distinction should 
be made between criminal causes and civil causes. It should further be noticed 
that conciliar practice in review of criminal cases had a rationale of its own, 
since even the common law in such causes allowed error only as a matter of 
royal grace and denied the right to bills of exceptions. Consequently, in the 
colonies which were attempting to conform to common law standards, only 
the attenuated "record" usual in causes criminal would be available for appeal 
purposes, and this record, of course, was bare of the matter likely to be most 
prejudicial to defendants—the rulings respecting evidence and the charge to 
the jury. The difficulties of criminal appeals under such circumstances are 
obvious. The situation could be remedied only by measures extraordinary in 
nature and designed to furnish to the Council information concerning the 
proceedings in the lower court that the bare "record" did not include. Such 
measures were occasionally resorted to by the Council in colonial criminal appeals, 
as an examination of the cases of Bayard and Hutchins, which were 
among the causes celebres of the eighteenth century, reveals. 
For proper understanding of the appeals of Bayard and Hutchins it is necessary 
to set forth the preliminary events at some length. These appeals constituted 
part of the aftermath of the revolt engineered in the province of New 
York in 1689-90 by Jacob Leisler and the subsequent execution of Leisler for 
high treason. 168 In the first years of the next century the province was still 
distressed by the schism between the Leislerian and anti-Leislerian factions. 167 
In January, 1701/2, information reached the then Leislerian-controlled council 
in New York that several addresses reflecting upon the conduct of the incumbent 
government were being circulated by the opposing faction. 168 These 
addresses, to the King, the House of Commons, and Lord Cornbury, respectively, 
were allegedly instigated chiefly by Colonel Nicholas Bayard and his 
son Samuel. Many of the signatures to these addresses were said to have been 
obtained by sinister means in the tavern of John Hutchins, alderman and 
justice of the peace. 169 The immediate occasion for the addresses was news 
distribution of intestate estates was in force 
in Barbados (PC 2/86/125). Cf. Bayer v. 
Warner where the special verdict found what 
acts were in force, how they were regarded, 
and what their force was (PC 2/95/506-15). 
166 p or an account thereof see 3 Osgood, The 
American Colonies in the 17th Century, c. xv. 
167 2 Osgood, The American Colonies in the 
Eighteenth Century, 49 et seq. 
168 CSP, Col, 1702, #35. Some o£ the heads 
of the Leislerian version of the addresses are 
set forth in ibid., #41. Cf. Case of William 
Atwood, Esq., NYHS, Pub. Fund. Ser. (1880), 
264-65. For an anti-Leislerian version of the 
occasion for the addresses see CSP, Col., 1702, 
#343- 
169 Ibid., #35. Free drinks and misrepresentations 
as to the contents of the signed papers