a premium on perjury. Wilmot and the other Lords (Gower, Queensberry, 
and Marchmont) agreed that the assembly could have no jurisdiction after 
the entrance of the appeal to the King in Council and that it was presumptuous 
in them to intermeddle in the cause. 632 The final Order in Council issued 
on April 27, 1770, 033 and it is typical of the irreconcilable spirit of the Rhode 
Islanders that although the use of reviews after appeals to the King in Council 
had been taken was put an end to by statute, 634 the assembly continued to 
grant new trials in instances not thus proscribed. 635 
It is not easy to classify the action of the Committee on the acts for a new 
trial. From the notes available on Wilmot's opinion it is obvious that he regarded 
the acts as utterly void, and certainly the reversal of the judgments was 
based on this assumption. We believe, however, from the language describing 
the assembly's intervention as a "usurped jurisdiction," that Wilmot was not 
thinking in terms of a statute void for repugnancy to the law of England, but 
rather in terms of the old and well-settled judicial doctrine of coram non judice. 
The learning on this had long before been summarized in the Case of the 
Marshalsea, ese where Coke had laid it down that where a judge acts without 
jurisdiction his acts are void. This view, of course, implied the existence of 
certain judicial powers to begin with, and apparently, however much Wilmot 
and his associates disapproved of the appeals and reviews of Rhode Island, 
they were not prepared to state categorically that the assembly was completely 
without jurisdiction. Holmes v. Freebody is consequently a precedent for the 
proposition that legislative acts in excess of jurisdiction are void. This falls 
short of the more sweeping rule of Winthrop v. Lechmere, but it is nonetheless 
an important addition to the developing constitutional law of the Council. 
That the Privy Council continued with such imperturbability to explore 
the bounds of its constitutional functions as a court in the face of mounting 
tension between the motherland and the colonies and the boiling of new issues 
respecting the proper limits of political control testifies to the importance which 
had come to be attached to the Council's judicial activities as an instrumentality 
of government. Apart from the fact that in the late fifties and sixties causes 
which the Lords Committee itself regarded as matters of weight came 
632 Endorsed by William Samuel Johnson on 
the Case of Appellant (Col. Univ. Law Lib.). 
Respondent argued that orders for new trials 
were "the well-known and established Usage 
of the Colony, founded upon the experienced 
Necessity of this Manner of attaining Justice; 
and such new Trials in Courts of Equity (as 
the courts of Rhode Island are) are consonant 
to the Practice of such Courts in this Kingdom, 
which admit in proper Cases of Rehearings and 
Review, and the rather as the Record is not removed 
out of the Court below by an Appeal." 
See the "brief" in the Case of Respondent. 
6SS PC 2/114/359. 
63,4 Acts and Laws R.I. (1772), 17. 
635 MS Petitions to R.I. Gen. Assembly, 1770- 
72, #43, 54, 59, 109, 128, 138; ibid., i 7 7 2-75, 
#18, 27, 34, 50. 
636 10 Coke Rep., 68b.