recalcitrance of Massachusetts in the face of the several conciliar pronouncements of an inherent right of appeal. 383 Further, the charter was quite capable of an interpretation which vitiated the limiting clause. 384 But the provincial stand should not be condemned on the basis of analogies from instructional regulation. 385 A later instance of the reluctance of Massachusetts to execute an Order in Council, apparently with even less justification, is found in Vassail v. Fletcher. In this appeal a December 12, 1752, Superior Court judgment for ,£2,000 and costs in an action of defamation was reversed by a January 31, 1754, Order in Council, since plaintiff had offered no evidence below until the review stage in the Superior Court. The damages and costs were to be repaid appellant with interest; upon such payment the security given by respondent was to be delivered up; that of appellant was to be immediately delivered. Since the merits of the action had not been entered into, respondent was to be at liberty to bring a new action in the Inferior Court of Common Pleas, with the former judgments and the Statute of Limitations no bar thereto. 380 At the May, 1754, term of the Superior Court of Judicature, Vassall presented the conciliar order and moved that the security given be delivered up, that execution be awarded according to the order, and that the order be recorded by the court. 387 The court continued the motion to the next term for advisement. 388 On August 21 counsel James Otis moved for execution, but the court answered that, the Chief Justice being absent, the party moving must await a full court. The motion was repeated on August 22, with the Chief Justice present, but without avail, and the court adjourned on September 7 without having granted the desired execution, continuing the motion for advisement. Otis then informed Vassall that Justice John Cushing had not sat upon the motion and advised a petition to the Governor and Council to fill the court by a special justice. 389 Upon such petition Governor Shirley, on September 20, commissioned Thomas Hutchinson to be special justice in place of Cushing, who declined sitting, to hear and determine the pending motion made the previous Commissioners of the Admiralty, Nov. 14, 1743 {Adm. 1/3817). See also 4 Col. Currency Reprints (Prince Soc. Pub., ed. A. M. Davis), 340-41. 383 Supra, pp. 142-43. 384 Supra, pp. 164-65. 385 Davis (2 AHR 232) lumps instructional and charter minimums into the same category. 386 PC 2/104/25, 32. The conciliar cases of both parties are in the Library of Congress (Law Div.). Another copy of appellant's case is in Add. MS, 36,217/44-48. The cause seemingly attained some degree of notoriety in the colony to justify Fletcher's publication of a thirty-nine page pamphlet containing the proceedings therein, viz., The State of the Action Brought by William Fletcher against William Vassall, for Defaming Him (Boston, 1753). A copy is in Add. MS, 36,217/49-69. 387 Suffolk. County Court Files, #72,594. 388 MS Mass. Sup. Ct. Jud. Minute Book. Suffolk), 1 75 2 ~54> l ast page. 389 44 MS Mass. Archives {Judicial, 1754-74), 8-9; MS Mass. Sup. Ct. Jud. Minute Book {Suffolk), 1754-56, P- 8.