The Order in Council in this appeal has been generally regarded as in 
effect reversing Winthrop v. Lechmere and establishing the validity of the 
1699 act. 200 This is not correct. The petition which was dismissed was not a 
"petition and appeal" on the merits; it was merely a prayer for leave to proceed 
on an appeal granted in May, 1738, from a sentence of March, 1732/3. 291 
Coming on to be heard in 1745, the obvious procedural objection to granting 
the petition was the failure to prosecute the appeal within the required year, 
or year and a day. 292 The language of the dismissing conciliar order, although 
lacking the normal recital in orders dismissing for nonprosecution at a respondent's 
application, gives no indication of a judgment on the merits. 293 
Furthermore, later action by appellant Clark indicated his opinion that Winthrop 
v. Lechmere was still good law. 294 On the other hand, the colony still 
to be dismissed, although great stress was laid 
on the precedent of Winthrope and Lechmere" 
(ibid.). Cf. 2 Law Papers, 13 Conn. Hist. Soc. 
Coll., 105, 112. 
289 g p u fr_ R ec _ Co/. Conn., 592-93. Some insight 
into the activities of a solicitor upon a 
conciliar appeal is provided by the bill of 
John Sharpe in this appeal (1 Law Papers, 355- 
59). 
290 Washburne (Imperial Control of the Administration 
of Justice, 187-88) states that 
"the petition was dismissed, the judgments of 
the lower courts affirmed and the validity of 
the Connecticut act concerning the estates of 
intestates sanctioned which reversed the former 
decision enunciated in the appeal in the case 
of Winthrop vs Lechmere." Hazeltine (Appeals 
from Colonial Courts to the King in Council, 
322) declares that "these combined efforts [of 
the colony and respondent] to secure a reversal 
of the privy council's decision in the case 
of Winthrop v Lechmere were finally successful. 
... At last the validity of the act of 
1699 was established." To the same effect see 
Schlesinger, Colonial Appeals to the Privy 
Council, 28 Political Science Quarterly, 445. 
Dickerson (American Colonial Government, 
275) says that "the decision [Winthrop v. 
Lechmere] was afterwards reversed in the case 
of Clark v. Tousey." To like effect see Adams, 
The Emancipation of Massachusetts (1893), 
301. Haines (The American Doctrine of 
Judicial Supremacy [2d ed., 1932], 51) asserts 
that the colony "was successful in having the 
former decree of the Council reversed and the 
colonial act of 1699 validated." Talcott (5 
Conn. Hist. Soc. Coll., 88, note) declares that 
"the controversy was brought to a successful 
close by a royal decree, dismissing Clark's appeal, 
and thus confirming the validity of the 
Connecticut Law of Intestate Estates." To the 
same effect see Russell, The Review of American 
Colonial Legislation by the King in Council, 
106; 1 Hockett, Constitutional History of 
the United States (1939), 56. For a more 
cautious view see 3 Osgood, The American 
Colonies in the Eighteenth Century, 317, that 
"the appeal of Clark was finally dismissed and 
the Connecticut law of intestacy . . . was by 
implication allowed to stand." 
291 See 9 Pub. Rec. Col. Conn., 591. The 
petition is erroneously termed a "petition for 
leave to appeal" by agent Palmer (1 Law 
Papers, 343). 
292 See Andrews, The Influence of Colonial 
Conditions As Illustrated in the Connecticut 
Intestacy Law, 1 Select Essays in Anglo- 
American Legal History (1907), 462. Compare 
the earlier view of Andrews in The Connecticut 
Intestacy Law, 3 Yale Review 293. Cf. 
Morris, Studies in the History of American Law, 
119-20. Such procedural action well accorded 
with the strategy of the colony; see 2 Talcott 
Papers, 82-83; 1 Law Papers, 68. The conciliar 
rule must have been well known to the 
crown law officers; see Gordon v. Lowther (2 
Lord Raymond 1447) and the discussion of 
the rule, supra, pp. 273-74. 
293 Such Orders in Council usually contained 
a recital of nonprosecution and an award of 
costs. See McSparran v. Mumford (PC 2/88/81, 
86); Williams v. Williams (PC 2/95/161, 
212); Wilcox v. Royal (PC 2/94/607, 615); 
Kirwan v. Lyons (PC 2/95/61, 63); Manning 
v. Concannen (PC 2/97/ no, 118). 
294 See 9 Pub. Rec. Col. Conn., 366-67.