A year later, on June 21, 1738, the court having advised upon the motion 
answered that in case the action mentioned in the Order in Council came 
to trial again before the court in the method directed, it should endeavor 
to do what to justice appertained. As to ordering execution as prayed, the 
court, having considered the royal charter together with the laws of the 
province and the constant usage and practice of the court, was of the opinion 
that it had no authority to give order for such execution. 370 In the following 
September, Leighton petitioned Governor Belcher that the conciliar order 
be put into execution- —it being admonished in the Order in Council that the 
Governor and Council, as well as all others concerned, take notice accordingly. 
The Massachusetts council was of the opinion that since no application was 
made to the governor until after the foregoing proceedings in the Superior 
Court, it was not proper for the governor to do anything in the matter. This 
advice being agreeable to his own sentiments, Belcher replied that he was 
prevented from doing any service in the affair. 371 
Having exhausted provincial remedies, Leighton complained at the Council 
Board in England of the refusal to execute the former Order in Council. 372 
This complaint resulted in a March, 1738/9, reiterative order peremptorily 
phrased. 373 The province was represented at the Committee hearing by the 
Solicitor General, "who argued the matter extreamely well in favour of the 
judges conduct." Agent Wilks felt that this argument had its effect, for the 
Committee report only renewed the former order without imputing any 
blame to the conduct of the governor or the judges as charged by Leighton. 374 
Unfortunately no record of the argument appears to have survived. On June 
5,1739, Leighton confronted Frost with the new conciliar order, but respondent 
refused to return the money, preferring to stand the chance of a Superior 
Court order. On June 15 Leighton petitioned Governor Belcher, setting forth 
his intention to move the Superior Court at the coming York term to award 
1736-47, June, 1737, term, opposite entries 
#66, 67; 41 MS Mass. Archives (Judicial, 
1725-42), 250-53. 
370 Suffolk County Court Piles, #42,649; 41 
MS Mass. Archives (Judicial, 1725-42), 254- 
55. Cf. Davis, 3 Pub. Col. Soc. Mass., 255. In 
the Superior Court minute book the following 
entry appears: "Mr. Wm. Bollan's motion on 
behalf of Wm. Leighton of Kittery was read 
at last court and the subject matter thereof 
requiring the most mature consideration the 
court declared they would advise thereon till 
the next term." Then added in another hand, 
"Vide the rough draft of the court's judgment 
on file." (MS Mass. Sup. Ct. Jud. Minute 
Book [York.], 1738, entry #7). Presumably 
this is Suffolk. County Court Files, #42,649. 
371 41 MS Mass. Archives {Judicial, 7725-42), 
247-49. Governor Shirley wrote on May 6, 
1739, that if Belcher had not permitted Frost's 
suit to be maintained at the expense of the 
country, the matter would have ended upon 
the appearance of the Order in Council granting 
leave to appeal and Frost would not have 
proceeded further. Or if Belcher had made 
some effort to put the judgment of the King 
in Council in execution, instead of wholly 
denying to do it, the money levied upon 
Leighton would have been refunded without 
much difficulty (Adm. 1/3817). 
372 PC 2/95/66. 
373 PC 2/95/112, 137. 
374 53 MS Mass. Archives (Letters, 1738-50), 
34-35-