|Appeals to the Privy Council from the American Colonies:
An Annotated Digital Catalogue
This annotated digital catalogue offers a systematic presentation of the appeals to the Privy Council from the 13 colonies that became the United States, with links to related documents. The purpose is to provide a foundation for further study of these appeals through improved access to source material. This effort complements other ongoing international efforts to uncover the record of appeals within the colonies of the British Empire. Current complementary international projects address previously unpublished Privy Council cases from a somewhat later period and colonial appeals from India and Australia. Preliminary lists of appeals from Canada (pdf and from the Caribbean (pdf) are included here. A brief list of printed cases for the Caribbean found in the British Library, the Law Library of Congress and the Law Library at Columbia University (pdf) may provide a beginning for similar study by interested scholars.
This catalogue incorporates four bodies of material:
The Privy Council in England evolved with the monarchy over centuries. Its size and precise functioning varied from reign to reign as it advised the sovereign on administrative, legislative, and judicial matters. By the dawn of the eighteenth century, its power was already waning. Nonetheless, the Council and its associated subsidiaries retained responsibility for the administration of the growing number of English colonies. As part of this oversight of colonial governance, the Council exercised appellate jurisdiction over the decisions of the highest courts in each colony.
For a brief overview of the Council’s appellate jurisdiction and its significance, see Sharon Hamby O’Connor and Mary Sarah Bilder’s “Appeals to the Privy Council before American Independence: An Annotated Digital Catalogue” (pdf).1 To date, the most exhaustive study of the appellate process remains undoubtedly Joseph H. Smith’s Appeals to the Privy Council from the American Plantations, images of which are available on this site. A number of other studies have provided detailed discussion of more particular aspects.2
Catalogue Content (and Related Documentation)
The list includes controversies indexed as appeals from the 13 ‘American’ colonies or that identify themselves as appeals in their descriptions in the APC, beginning with the establishment in 1696 of the Lords Commissioners of Trade and Plantations (commonly called ‘the Board of Trade’) and continuing until the Revolutionary War. The list also includes a limited number of earlier cases from colonies noted by Joseph Smith as sending appeals.3
What counts as an ‘appeal’ is an issue of some complexity. The vast majority of the cases listed here resemble modern notions of appeals by private parties from lower court determinations, but the Privy Council heard matters in this process that blur these boundaries. Some matters were in fact petitions for assistance of other sorts; some were appeals meant for other bodies; some lack a clear lower court judgment. Prize and admiralty matters generate more than their share of confusion. Some inclusions appear to be the result of indexing choices made by APC editors. Joseph Smith, in his most scrupulous manner, sometimes notes that matters he treats extensively are not in a technical sense ‘appeals’. For example, in the case of Bayard v Rex, Smith notes that the case really reflects the pardoning power of the Council. Without further investigation into each case, it would have been a challenge to limit the list to those that fit the technical category of ‘true’ appeal.
Thus, we have erred here on the side of inclusion. If indexed or described as an appeal, the matter is included, leaving to the researcher further classification. The result is 257 reports, each reflecting a dispute or, in some cases, related disputes reported in a single numbered section in the APC. Comments in the Notes sections allude to the actions most obviously not formal appeals. Twenty-six of the 257 reports most clearly falling short of the definition of an appeal in various ways are marked ‘not a “true” appeal’ and can be searched separately by using the ‘true’ appeals search form, which can accessed from Specific Search Options or from Useful Lists. The Privy Council’s registers were not online when the catalogue was compiled. Their availability now, along with a growing number of related sources, will be a help in developing a more definitive list.
The Privy Council also heard a small number of appeals from royal commissions on boundary disputes and on the long-running controversy between the Mohegans and the colony of Connecticut. That category of complaints is not included in this list of appeals. Researchers interested in these matters are advised to consult the significant number of secondary sources on these topics.
The following information is provided for each appeal :
A PDF version of all the reports will shortly be available for viewing and downloading.. A hard-bound paper copy of it may be obtained from W. S. Hein & Co. Adobe does not quite capture all the formatting, but all the data is there. Individual reports can be downloaded from most browsers as a PDF file with the software known as ‘Acrobat Pro’. In the lower right-hand corner of each report there is a link to an HTML version of the report that is optimized for printing on 8.5 x 11 inch paper. It is a bit faster than converting the report to PDF, and it preserves all the formatting except for the horizontal spacing.
The APC, the foundation of the catalogue’s list, was compiled from the Privy Council’s registers. Researchers are advised to keep this aspect of the catalogue in mind. For example, in the APC female executors are sometimes called ‘executor’ and sometimes ‘executrix’; we have carried these designations over into the catalogue. This means that if one is searching for female executors, one has to use both terms. We noted and corrected some obvious errors in the APC, but further study of the appeals will undoubtedly uncover errors, confusions, and omissions that are reproduced here. Use of the APC and the registers means, of course, that appeals granted in the colonies but not pursued to the next level are not noted.
The cases grouped together in the APC are grouped together here as a single report.
Dates used in the APC are accepted.
Spelling in the APC is retained. When more than one spelling of a name is used, it is indicated in the case description for that appeal only, even if the same person appears in a different case.
Each participant’s status, occupation, and place of residence or origin is given, if provided. Descriptors for that information use the terminology employed in the APC. The relationships of the participants are explained as best they can be determined from the APC entry. Parties are described as deceased if the APC so states or if the APC indicates the presence of an heir; in cases of uncertainty the descriptor ‘presumed deceased’ is used.
In cases involving vessels, the name of the case used by the APC or by Joseph Smith is used. If neither applies a name to the case, the parties are named if the parties are certain. Otherwise, the case is called ‘X, appeal of’ when there is an element of doubt as to the opposing party.
The nature of the case is likewise taken from the wording of the APC. Note, however, that the sketchy nature of the material in the APC often obscures the real issue in an appeal. What appears to be an action to recover a debt becomes really an issue of currency valuation; what looks to be just another family dispute in fact questions the validity of a statute regarding inheritance.
In compiling the APC, its original editors took little interest in the specifics of appeals from the colonies and, unfortunately, chose not to document them in detail. To quote from the preface to volume 3, p.xii, of the APC, “Considerations of space have led in this volume to the compression into very narrow limits of the numerous colonial appeals. Most of these are of no biographical or legal interest and to have given in full the complicated details of the family broils and commercial vicissitudes of the forgotten, or the record of the orders for hearing, postponements, partial hearings and further postponements, would have been neither advantageous nor possible. But in no case has a name or the number of any page referring to the case been omitted, and any matters of biographical or legal importance have been given at length.” Researchers seeking more detail are encouraged to consult the registers and the CSP, the contents of which have not been searched beyond the citations given in the APC.
Except for the section number for entries in the APC (e.g., v.4  p.717), information about an appeal presented in square brackets on the website was obtained from the work of Joseph Smith and does not appear in the APC.
Any other commentary not directly from the APC is referenced to its source. Only material in the Notes section of the description is provided by the compiler. Because of the particular interest in slavery in scholarly research, the compiler has included in the Notes references by the APC to instances in which slaves figure in an appeal. However, a reading of the printed cases will undoubtedly reveal more cases concerning slaves.
While the catalogue itself is complete within the limits described above, much more clearly could and should be done. One of the advantages of web publication is that the contents of the website can be expanded as new research is done. We have included in two reports (Oulton v Savage, 05_1717_00, and Apthorpe v Pateshall, 05_1768_00) samples of such additional research, matter that was discovered in a quick trip to the Massachusetts State Archives. A more ambitious example of additional research is a memorandum that Charles Donahue prepared about the forty-seven cases that originated in actions of ejectment or like ejectment in the colonies. The Notes in the reports reference this memorandum where it is relevant. We have included on the site another memorandum by Mary Bilder that offers advice to students and enthusiasts about how to undertake further research using the catalogue.
A number of the appeals in the catalogue are accompanied by links to digital images of a ‘printed case’. Americans might use the term ‘brief’. The production of a printed case prepared for the hearing of the appeal before the Council became customary or required by a date as yet undetermined. These printed cases, central to the appeals, contain a summary of the facts and the legal arguments.
To date, printed cases for 54 appeals from the 13 ‘American’ colonies have been found, some with multiple copies, the earliest dating from 1727/8.5 For many appeals, the cases for both the appellant and respondent have been located. In others, only the papers of one party have been found. Many include handwritten notations and underlinings, some attributable and others a mystery. All have a similar look and feel, mirroring not only each other but also appeals presented in this era to the Lords Commissioners for Hearing Prize Appeals and to the House of Lords.
The major collections of printed cases are found in the Hardwicke Papers in the British Library, many with notes of Charles Yorke; in the papers of Sir George Lee in the Law Library of Congress; and in the collection of William Samuel Johnson in the Law Library at Columbia University. A smattering of cases has been located in other repositories.
For each appeal for which a printed case has been located and viewed, information as to the holding library or libraries is provided with a link to its images if (1) the copy contains manuscript notes, (2) it is the only copy of the case located, or (3) it is one of several copies located, none with manuscript notes. Where a number of copies meets this last criterion, preference is given to the one at the British Library. Call numbers at holding libraries are current as of 2009.
For some appeals, related documents filed with the Privy Council remain extant.
Privy Council documents within the PC 1 classification at The National Archives at Kew are included with their PC 1 reference number and are linked to their images. Documents are entered as ordered and described in volume 6 of the APC or the online catalogue of TNA. Other classifications at TNA were not searched for relevant material, and only a few selected documents from other classifications are noted here.
The images of PC 1 documents are also available on the Anglo-American Legal Tradition website.
References to the Privy Council’s registers (classified as PC 2 at TNA) are linked to the AALT website.
Additional Resources Available in the Catalogue
As an aid to researchers, the following separate lists have been prepared, all of which can be accessed from the ‘Useful Lists’ index page:
The first four lists organize material that is in the database fields ‘Case Names Long’, ‘Case Names Short’, ‘Appellant’s Case Signature’ and ‘Respondent’s Case Signature’, and ‘Vessels’. The next five contain material that is not in the database. All nine are PDF documents that can be viewed online, or downloaded. The tenth is an HTML page with links, in most cases, to the reports in which the item is cited. The last four are made up dynamically by the user from the database.
Advice on Using the Catalogue
There are a number of ways to navigate through the catalogue. On the bottom of the home page there are links to the ‘Useful Lists’ index page and to three successively more detailed chronological lists with (1) colony and report number only; (2) colony, report number, and case name; and (3) year, report number, case name, and colony.
The report number is broken into three parts separated by underscores, for example, 01_1699_01. The first part designates the name of the colony in alphabetical order: 01 = Connecticut, 02 = Delaware, 03 = Georgia, 04 = Maryland, 05 = Massachusetts, 06 = New Hampshire, 07 = New Jersey, 08 = New York, 09 = North Carolina, 10 = Pennsylvania, 11 = Rhode Island, 12 = South Carolina, 13 = Virginia. The second part designates the year (New Style or Gregorian calendar6) of the first entry in the Privy Council records. The third part is a reference number that we assigned to each appeal from that colony in that year. ‘00’ indicates that it was the only appeal in that year from that colony. If you are looking at a report, you can move to another one by replacing the number of the report you are viewing, which appears at the end of the URL on your browser bar, with the number of the report you wish to see.
The APC frequently consolidates appeals from more than one case in the colonies when the cases dealt with the same or similar issues or have overlapping parties. In most cases what the APC does is reflected in the Privy Council records themselves. Later in the history of the appeal, different cases may be treated differently, for example, by having a different committee report for each case. The catalogue’s reports consolidate appeals when the APC does, but normally list at the head of the report the short names of all the cases involved in the appeal. All the case names are also found in the full contents lists referred to above. Other references to reports, however, for example, those that appear in the returns from searches, list only one name for each report.
There is a blue navigation bar at the top of each report. In addition to providing links to the home page, a list of Abbreviations used, the Bibliography, and the search engines, it allows one to navigate to the first, previous, next, and last report in chronological order for the entire database or in alphabetical order by colony and then by date within each colony (i.e., in report number order).
Citations in the reports are normally given in short form. The Bibliography, which is available on the navigation bar of the reports, gives the full references. With the exception of references that appear in a large number or all reports, the Bibliography gives the report number in which the item is cited, with a link to the report itself. The Bibliography begins with a list of Abbreviations that are used throughout the catalogue. This list can also be reached from the navigation bar.
The basic search engine that appears on the home page searches most of the fields and most of the tables in the database. The most important fields that are not included are those that contain references to the APC, to the original Privy Council registers, and to the documents that we found at The National Archives. There are specific searches for these fields. The basic search engine searches for ‘words’ (i.e., any string of alphanumeric characters that begins and ends with a space or mark of puncuation or the beginning or ending of the field). The basic search engine is not case sensitive. It returns a list of reports that contain the searched-for item. It is a little slow, and would be even slower if it did not have the limitations that it has. Because the basic search engine searches the database rather than the reports, it will sometimes return words that are in the database but which, for one reason or another, are not included in the reports.
Because the basic search engine combines alphabetical characters and numeric characters, one can search for ESTC numbers. It will accommodate Boolean searching either by using MySQL’s markers or by using the words (all upper case) AND, OR, or NOT; it will accommodate string searching (use double quotation marks); it will accommodate truncated searching by using ‘*’. It uses MySQL’s rather large list of stop words (but such words may be included in string searches). It will not search for punctuation, but punctuation may be included in string searches. (The underscore character is not regarded as punctuation; hence, one can search for a specific report number if one enters the number with its underscores.) Truncated searching may be combined with Boolean searching, but combining Boolean searching with string searching sometimes produces unpredictable results.
Boolean searching using OR and NOT almost always produces the desired results. The same cannot be said of AND. It frequently delivers more than one asked for because the way we have interpreted it is that the first-named item must be included and the second-named item may be. It thus is no different from searching for the first-named item. You can narrow the search further by entering the two words again and putting a plus sign (+) before each of them (and leaving out AND). This may, however, miss a report that you are looking for because MySQL searches by rows, and many reports contain more than one row. An example of a search with the double pluses that achieves the desired result is ‘+attorney +general’ in the basic search engine. That seems to turn up all the attorneys general in the fields searched. An example of a search that does not achieve the desired result is ‘+Anne +George’ in the specific search engine for the APC. There is, in fact, one case that has records from both reigns (Lillie v Bromfield), but they are noted on different rows in the report, so the search returns a null result.
We have also provided a number of specific search engines that search one or more of the fields in one or more of the tables. Fields that contain the names of parties, the names of participants, the names of counsel, and the names of vessels may all be searched specifically. Specific search forms are also provided for the fields that reference the APC and the original registers. Another specific search form is provided for searching the references to the TNA documents in PC 1.
As already explained (1b, Report name), the reports in the catalogue frequently combine a number of separate cases, all of which are given names. Returns from searches, however, list only one name for each report. The results of the search will be found someplace in the report (which is linked in the return), but will not necessarily have anything to do with the case name or names.
If the database contains an image of the item being referred to, there will be a link marked ‘view’ in the right-hand margin of the line.
View images are provided in PDF for the pages of the APC that describe the case or cases that are the subject of the report, and the same holds true for the descriptions of the case in the CSP that are referenced in the APC. The view links on the lines noting the entry in the original registers of the Privy Council (PC 2) take you ultimately to the relevant image on the AALT website at the University of Houston, after stopping off at a page that lists all of the PC 2 entries relevant to the report. (The view links open on a new page or tab, so that you will not lose your place in the report.)
The view links that are marked on the printed cases, on the handwritten documents in The National Archives, and on the relatively small number of ‘Other Documents’ for which we have provided images take you to an intermediate image list. These are arranged by library or archive and list each of the images that concern the report that are in that library or archive, normally by linked page numbers. (The page numbers are our creation, and do not necessarily correspond to the page or folio numbers on the original; these latter are given in the reference on the image list.) Clicking on the page link will bring you to the image in question; it is embedded in an HTML frame, which provides the means to navigate through the document. The previous and following images (where they exist) are listed in the upper left-hand corner of the frame, and large navigation arrows at the top and bottom of the image allow one to flip back and forth. A few of the image holders have a link in the upper right-hand corner to images of higher resolution than those that are displayed. These images are sent directly to your browser (which may object to receiving them because of the size). From there they can be downloaded and manipulated if you want, say, to study watermarks or a particularly puzzling piece of handwriting.
These pages have been tested in Internet Explorer 8 and Firefox 24.0. They do not look quite the same in those browsers (the vertical spacing on some pages is a bit different), but they work in both. We would appreciate hearing of any difficulties that users encounter with other browsers. (We are aware that IE 11 seems to have a mind of its own when it comes to vertical spacing. We do not recommend it if it can possibly be avoided.)
Additional Resources Available Elsewhere
Related materials can be found in manuscript, print collections, and online. These documents include petitions, committee reports, opinions of law officers, orders of reference, and filings found in local colonial court records. For example, the Journals of the Board of Trade and Plantations, 1704–1782 and the Calendar of State Papers, Colonial are available at British History Online with some links to images of the documents in the case of the CSP. The CSP is also available with The National Archives collection CO1 (Privy Council and related bodies: America and West Indies, Colonial Papers) in digital form in ProQuest’s Colonial State Papers for those with access to a subscription. Citations to related documents in those series are not generally noted here unless referenced in the APC. Grace Griffin’s Guide to Manuscripts enumerates many printed cases and related materials available at the Library of Congress in transcription.
In their works, Joseph Smith and Mary Bilder provide many additional citations to related primary and secondary materials. The bibliography of manuscript sources in Bilder’s dissertation, Salamanders and Sons of God, is an especially rich resource. Only a limited number of additional resources are noted on this website. These include: (1) reference to manuscript drafts of printed cases, (2) the reporting of the colonial case by an early American reporter, and (3) library holdings of extremely relevant manuscript collections. No attempt has been made to bring up to date the bibliographies of Smith and Bilder with later secondary resources. Only when necessary to make sense of an APC entry were additional secondary sources consulted and noted in the database. Researchers are encouraged to check for new resources as more and more materials, including colonial court records, become available online every day.
Those interested in the later history of the Privy Council should consult the ambitious records project devoted to the Judicial Committee of the Privy Council, Privy Council Papers Online (1792–1998). The modern Judicial Committee has its own site.
Researchers are encouraged to email the Ames Foundation upon the discovery of additional printed cases along with verifying documentation. Please include “Colonial Appeals” in the subject line of the email.
Compilation of the list of appeals and related data from the Acts of the Privy Council, Colonial Series and location of extant printed cases and documents were carried out by Sharon Hamby O’Connor, Associate Professor Emerita at Boston College Law School, bolstered, supported, and assisted throughout by her husband and photographer, Ron O’Connor. The project was the inspiration of Mary Sarah Bilder, Professor of Law at Boston College Law School, who provided invaluable scholarly advice and counsel throughout the process and who has worked assiduously to insure the catalogue’s long-term accessibility on the web. It was nurtured into existence by the wise guidance and continual assistance of the late Morris L. Cohen, Professor Emeritus at Yale Law School. Its presentation on this website was made possible through the generous support of the Ames Foundation and the extraordinary commitment and dedication to the enterprise of its Literary Director, Professor Charles Donahue, Jr., Paul A. Freund Professor of Law at Harvard Law School. Its design and functionality are all due to the combination of his technical sophistication and his willingness to deal in depth with an historical period far removed from the medieval era of which he is master. Temple Goodhue, the proofreader for the project, added a degree of precision to this presentation that could never have been achieved without her. The technical support team at the Harvard Law School Library, especially Annie Cain, who manages the Ames server, and Stephen Chapman, Manager, Digital Strategy for Collections, provided excellent assistance throughout the process. Filippa Anzalone, Associate Dean for Library and Technology Services and Professor of Law, and Nick Szydlowski, Digital Services and Institutional Repository Librarian, at Boston College Law School thoughtfully enabled the presence and preservation of the project through the website Digital Commons @ Boston College Law School. Jason Liu, Law School Technology Consultant, also at the Boston College Law School graciously prepared black and white images for the many documents from The National Archives. Devon Coleman and Michael Rios assisted with the linking to images of original documents. The librarians at the various repositories holding printed cases and Privy Council documents were unfailingly helpful. Special thanks are due to Paul Johnson at The National Archives at Kew. At the British Library, our special thanks go to Frances Harris, Richard Davies, Jonathan Sims, the staff of Imaging Services, and especially to Arnold Hunt, Curator of Modern Historical Manuscripts, for his steadfast perseverance and patience. Much appreciation is extended to Robert C. Palmer, Cullen Professor of Law and History at the University of Houston, for his enhancement of the online availability of Privy Council resources. The efforts of A. Mitchell Fraas, Schoenberg Scholar-in-Residence at the University of Pennsylvania Libraries, the cooperation of the officers of the American Society for Legal History, and the generosity of Linda Price, daughter of the late Joseph Smith, enabled the inclusion of a scanned copy of Smith’s monumental work, Appeals to the Privy Council from the American Plantations, on this site.
1 March 2014 n.s.
2 Older treatments include George A. Washburne’s monograph, Imperial Control of the Administration of Justice in the Thirteen American Colonies, 1684–1776, Arthur M. Schlesinger [Sr.]’s article “Colonial Appeals to the Privy Council,” and Harold Hazeltine’s article “Appeals from colonial courts to the King in council with especial reference to Rhode Island.” More recently, Mary Sarah Bilder has brought to light the changing nature of the substance of appeals over time in The Transatlantic Constitution: Colonial Legal Culture and the Empire. For the colony of New York, note also the recent work of Daniel Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830. Work on the topic continues to appear as newer historians explore this era. See, for example, Craig Yirush’s article “Claiming the New World: Empire, Law, and Indigenous Rights in the Mohegan Case, 1704–1743,” and Arthur Fraas’s dissertation “They Have Travailed Into a Wrong Latitude:” The Laws of England, Indian Settlements, and the British Imperial Constitution 1726–1773.
3 Smith (p.73) states that in addition to the 14 appeals of Edmund Randolph, there are 16 appeals before 1696, but he does not name them. It would seem that they are the following: Massachusetts (Thayre v Savage, three appeals of Jahleel Brenton); New Hampshire (Walton v Walford, Barefoot v Wadleigh, four appeals by William Vaughan); New York (Ward v Palmer, Darvall v Hall, Wright v Cornwall, Billop v West); and Virginia (Bland v Codd, Ludwell v Toton).
4 Owen and Tolley, in Courts of Admiralty in Colonial America, p.237, note that “terms for vessels were used loosely by the colonists. For example, a ‘ship’ is technically a three-masted square-rigged vessel but in all likelihood the term was most often used as synonymous with the generic ‘vessel.’” Vessels here are described using whatever term is applied in the APC.
5 In attempting to locate printed cases, the compiler followed up the leads of Joseph Smith and consulted various printed guides, such as Charles Andrews and Frances Davenport’s Guide to the Manuscript Materials for the History of the United States to 1783; Grace Griffin’s Guide to Manuscripts relating to American History in British Depositories; the Library of Congress, Handbook of Manuscripts; and John Raimo’s Guide to Manuscripts relating to America in Great Britain and Ireland, plus the online catalogues of historical societies and major research libraries and the online ESTC. Tips from librarians sometimes led to other findings when material had not yet been catalogued. With the exception of some of the copies of the respondent’s printed case in Fothergill v Stover, all printed cases were viewed by the compiler. In the case of Fothergill, a librarian at the holding institution verified ownership and whether there were manuscript notes.
It was not possible to consult the papers of Privy Council members attending hearings of appeals or all papers of counsel on the appeals. Efforts were made to check archive entries for counsel in the Oxford Dictionary of National Biography if they covered the years in question and if the description of the holdings held out some hope of finding a printed case within them. The librarian at Lincoln’s Inn reports that though it holds some papers of counsel, no printed cases are within their collection. Charles Yorke’s copies of his cases are in the Hardwicke collection. Sadly, the papers of Alexander Forrester, who is second in number only to Yorke as counsel on the signed cases located so far, do not seem to have survived.
6 Until 1753, the APC gives the day of the month in Old Style. That means that although the year begins on 1 January and not 25 March, an appeal filed before 1753 in the first few days of January will be designated by the preceding year in the Gregorian calendar.