THE COUNCIL'S NEW ENGLAND PROBLEM 
If in respect to the jurisdictions using strict common law practice the problem 
at Whitehall was to secure an expansion of the orthodox record sufficient for a 
judgment on the merits by the Council, the questions which arose relating to 
the New England colony were of a different order. There, by provincial statute 
and local usage, the record should have been all that the Committee could desire, 
but as the inhabitants of those regions viewed the conciliar judicial function 
with distaste, the various efforts to narrow the appellate scope, when there 
was reason to suspect a case was going to be taken to the Council, compelled 
that body to be watchful that there was no diminution of the local record. 98 
For an understanding of the exact nature of the Council's New England 
problem, it is desirable to outline briefly the methods of review that obtained 
in these parts. In the seventeenth century it had been enacted in Massachusetts 
(contrary to common law practice) that all evidence was to be given in writing 
97 It was upon this foundation that the appellate process for the colony was 
codified by a 1701 statute. Under this act appellants from the Inferior Courts 
of Common Pleas to the Superior Court of Judicature filed a declaration with 
the lower court setting forth their reasons of appeal fourteen days before the 
sitting of the appellate tribunal. This declaration, sealed by the lower court, 
was then presented to the appellate body together with attested copies of the 
original writ, judgment, and all the evidence filed in the inferior court. Both 
parties to the appeal were allowed "the benefit of any new and further plea 
and evidence" at the appellate hearing which had the remarkable additional 
feature that there was a jury trial. 98 Parties aggrieved by the judgment of either 
inferior or superior court might secure a review in the same court. At such 
review, all the evidence on file in the former trial was to be produced by the 
party bringing the writ of review, with each party having the benefit of any 
new plea and evidence. 99 In the New Hampshire courts the same practice prevailed 
by virtue of a 1701 enactment adopting the Massachusetts provisions. 100 
In Rhode Island similar appellate procedure prevailed on appeal from the Inferior 
Courts of Common Pleas to the Superior Court of Judicature. Evidence 
was in writing, reasons of appeal were filed, evidence submitted below was 
considered on appeal, and new evidence (not limited to newly discovered evidence) 
was admissible on either appeal or review, juries being used at both 
96 For a sample New England record containing 
all the evidence see that in McSparran v. 
Mumford (R. 1.) (Vulham Palace MSS, N.H., 
N.J., N.Y. and R.l. Box, #117). 
97 Col. Laws Mass. (ed. W. H. Whitmore, 
1887), 129. 
98 1 Acts and Res. Prop. Mass. Bay, 464. Similar 
provisions were contained in earlier disallowed 
acts; see ibid., 285, 373. 
99 Ibid., 466. 
100 1 Laws of N.H., 704-5. No regard was 
had in the province to the 1706 disallowance 
of this statute.