enhanced because an element of unpredictability not present in English litigation 
existed in Council practice. Willes' rejection of the Statute of Charitable 
Uses as law for Antigua is an example in point. 3 This discretion and the fact 
that it was exercised affected greatly opinion of the Council's stability as a 
court, for no matter how good the precedents may have looked in the brief, 
they were a much less reliable bastion against surprise in Council than they 
would have been in King's Bench. Inevitably, of course, the lesson learned 
from such surprises, when they occurred, was that an important case needed a 
certain amount of extra-judicial political preparation. This was an activity not 
unheard of even in English litigation in the eighteenth century and can 
scarcely be said to abridge the Council's right to be looked on as a court. And 
if one is disposed to be shocked at the well-meaning soundings out of prelates 
by the Virginia clergymen in the Parsons' Cause, it is well to remember that 
in 1783 the House of Lords decided for the plaintiff in the Bishop of London v. 
Ffytche by a vote of 19 to 18, and among these nineteen votes were the votes of 
thirteen bishops. 4 
The flaw in the premises upon which the Council undertook to superintend 
by way of appeal the administration of law in the dominions was one inherent 
in the whole conception of the dominions as appertaining to the crown. The 
crown's interests as they were seen at Whitehall could not be put second to anything 
except what was specifically enacted for these dominions by the King in 
Parliament. The conception was medieval, and if the Council acted sometimes 
like a medieval Curia Regis, not even a good brushing up by counsel on the 
records in the Tower would have availed. Furthermore, it is perfectly apparent 
from occasional notes taken at hearings that no real effort was expended to 
acquire an understanding of colonial economic and social conditions, let alone 
the colonial philosophy of life. It is true, colony agents were occasionally consulted 
on particular points, but such contacts did little to overcome the pervasive 
contempt for provincial legal accomplishments. Even Lord Mansfield, 
a well-informed person, did not hesitate to speak in derogatory terms of 
colonial law, although by his day there were judges and lawyers in the New 
World as competent as many of his colleagues. It never seems to have occurred 
to the critical gentlemen at the Council Board that their own captious attitude 
about the law applicable overseas was responsible for some of the things they 
criticized or that on some semitropical island inhabited by a few whites and a 
horde of negro slaves the minutiae of clerical pettifoggery laid down in the 
Instructor Clericalis might seem overrefined. Unquestionably the official posture 
on things colonial was a factor that operated to prevent the Council from 
s Supra, p. 489. 
4 Beven, Appellate Jurisdiction of the House 
of Lords, 17 LQR, 367.