ing in the English courts, Yorke was of opinion the common law courts could 
not exercise jurisdiction. If a point of equity were involved, the Chancery 
Court might take cognizance and compel the parties resident within the realm 
to perform its decree. 8 
Later in 1745, in a chancery decision in the same controversy, Yorke, then 
Lord Hardwicke, appears to have modified his opinions, for he stated that 
this is a question between feudatory Lords, proprietors of provinces: And concerning 
not only their private interest, but the rights of government and the right 
of private persons, and has been well compared to the case of the Lords marchers. 
If a private question arose between tenants there, it was determined in the court 
of the marchers, on which a writ of error lay in the King's Bench, being dependant 
on the crown of England; and on that account, all disputes between lords marchers 
were determined originally in the King's Bench, as the place where the writs of 
error in private affairs lay. So here the disputes of private persons in the provinces 
are determined in the courts of the province, on which a writ of error by way of 
appeal lies before the King in Council. Therefore questions between proprietory 
lords, in analogy to the ancient law of the marchers must be determined before 
the King in Council, and always is so, notwithstanding the statute of 16 Charles 
I which restrains the power and jurisdiction of the Privy Council . . . 9 
The possibility of original jurisdiction in the Council on feudal theory was 
clearly intimated. In a 1750 chancery decision in the same cause Lord Hardwicke 
reaffirmed this principle and analogy. 10 These views of Hardwicke were 
later embodied by Blackstone in his monumental work. 11 In 1774, in a dictum 
in Fabrigas v. Mostyn, Lord Mansfield declared that "whenever there is a 
question between two provinces in America, it must be tried in England by 
8 Dulany Papers, Box 4, #8. Clement Wearg 
and John Willes were of the opinion that the 
matter could be settled only before the King 
in Council, but were silent as to the procedure 
of cognizance {ibid.). 
9 Penn v. Lord Baltimore (Ridgeway, Cases 
temp. Hardwicke 332, 334—35). 
10 Penn v. Lord Baltimore (1 Vesey Sen. 444). 
Hardwicke stated that "it is certain, that the 
original jurisdiction in cases of this kind relating 
to boundaries between provinces, the 
dominion, and proprietary government, is in 
the King and Council: and it is rightly compared 
to the cases of the ancient Commotes 
and Lordships Marches in Wales; in which if 
a dispute is between private parties it must be 
tried in the Commotes or Lordships; but in 
those disputes, where neither had jurisdiction 
over the other, it must be tried by the King 
and Council" (ibid., 446-47). Cf. the notes 
on the argument in Add. MS, 36,179/138. 
Further discussion of the original jurisdiction 
of the King in Council over dominions of the 
crown outside the realm is found in Earl of 
Derby v. Duke of Athol (1 Vesey Sen. 202); 
Bishop of Sodor and Man v. Earl of Derby 
{2 ibid. 337). 
11 1 Commentaries, 231. In the notes on the 
Committee hearing of the claims of the Earl of 
Cardigan et al. as representatives of the Duke 
of Montagu to the islands of St. Vincent and 
St. Lucia it was alleged that the "original 
jurisdiction of your Lordships in America and 
the West Indies is undoubted upon the limits 
of colonies, proprietory rights" (Add. MS, 
36,219/1).