Ships, slaves, debts, widows, inheritance, bastards, privateers, treason, customs, land companies, minors, orphans, governors . . . the appeals to the Privy Council from the American colonies contain these issues. In each appeal, someone cared enough to pay to have a petition filed and a printed case prepared in London. In many appeals, the underlying matter was sufficiently important to the parties that they were willing to expend significant sums hiring English lawyers to argue the case before the Privy Council. The appeals were an important linchpin of the Atlantic world.
The Appeals Catalogue is an excellent source for undergraduate research papers, graduate papers, law school seminar papers, and other writing projects. For Americans, the Catalogue provides a way to ‘travel to England’ to read the official papers of the British government in these matters. For those readers in the United Kingdom, the Catalogue provides an entry point for American matters that were decided in England by British officials. For readers in Canada, India, Australia, or elsewhere in the world, the Catalogue offers an opportunity for comparative research. This brief guide offers possible investigations and arguments.
The compilers of the Catalogue hope to be able to supplement it with further discoveries and source material. The website has the capacity to include an “Additional Research” note for each report, which could contain information worthy of inclusion brought to the attention of the compilers. Two reports (Oulton v Savage, 05_1717_00, and Apthorpe v Pateshall, 05_1768_00) contain 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.
As the Home Page indicates, this Catalogue includes basic information on appeals from the 13 colonies that became the United States, and some information about those from the Caribbean and Canada prior to 1783. The focus of the Catalogue is on appeals from the 13 colonies, and it includes digital images of considerable primary source materials available in repositories in England and America for those appeals. We hope that digital images can be added for appeals from the Caribbean and Canada at a later date. We welcome information about any new documentary discoveries that researchers might find.
As a reminder for those new to this discipline, the definition of the three major Privy Council primary sources digitized for this project are noted in the paragraphs that follow.
Printed Cases. A ‘printed case’ is basically the eighteenth-century British version of what American lawyers call a ‘brief’. Each side in an appeal prepared a printed case reflecting the facts and reasons (legal arguments) concerning the dispute. Some printed cases contain handwritten notations by the judge or lawyer. The appellant’s case will be the side requesting the appeal; the respondent’s case will be the side defending. The term, ‘counsel’ is used in this Catalogue for the name of the English attorney who signed the printed case. The printed case usually also provides the dates of the underlying court actions in the colonies and any additional useful names. If this Catalogue does not contain images of a printed case, do not draw the conclusion that one did not exist. Unfortunately, only some printed cases survived and have been located. It may also be possible that cases were also submitted to the Privy Council in manuscript form early in the century.
Registers. At the Privy Council, the appeal was recorded in registers, indicating actions taken on any particular day on matters coming before the Council. Matters relating to an appeal and its disposition appear in the registers. The Privy Council registers are large volumes kept chronologically and catalogued at The National Archives (Kew) with the reference number ‘PC2’. In this Catalogue, the PC 2 numbers link to the pages of the register relating to that appeal. These page numbers are drawn from summaries made of the registers in the Acts of the Privy Council: Colonial Series (APC). The APC is largely reliable in terms of having located references to the appeal but may have overlooked on occasion a reference.
Miscellaneous records. Miscellaneous material from Privy Council proceedings held by The National Archives is catalogued as ‘PC 1’. Documents such as petitions, orders of reference, and committee reports for the appeal may be found there.
Secondary sources. The most exhaustive secondary source on colonial appeals is Joseph Smith’s Appeals to the Privy Council from the American Plantations, available digitally on this site. “Personnel and Practices,” in Bilder, The Transatlantic Constitution (chapter 6) provides an overview of the appeals process. The Bibliography offers further guidance.
Investigations and Arguments
The Catalogue can be used to research a variety of topics in which the appeal serves as the architectural foundation for the paper. Possibilities include the following:
1. A case study of an appeal. Each appeal contains an underlying dispute about relationships, wealth, or power. A case study provides a narrative account of the appeal by investigating additional sources. Historical case studies usually require a thesis or argument beyond an investigative recounting of the events. A useful approach to developing a thesis is to ask the question: What does my case study reveal about the people or time or place or politics or law or . . . ? The answer usually can be expanded into a more nuanced thesis.
2. A comparison of two (or more) appeals on a single issue. The appeals often raised similar issues in different colonies. A comparative study seeks to explain the reason for the similarity or difference in the outcome. The Catalogue may be used for various comparisons:
- Appeals from different mainland colonies.
- Appeals from a mainland and Caribbean colony
- Appeals from different Caribbean colonies
- Appeals from one of the 13 colonies and a Canadian colony
- Appeals from a colony in this Catalogue and one from India or Australia
3. Development of the law. The significance of the appeals for development of Anglo-American law has not been studied in depth. Although the decisions in the appeals were not printed contemporaneously, many important legal arguments were raised and decided.
- Relationship to English law. Were the decisions in appeals perceived to be an exception to dominant English law? Did the arguments made in these appeals influence or alter English case law or legislation? How did the appeals expand the scope of legal possibilities for the English judges? How did the appeals relate to English law reform efforts?
- Relationship to American law. What influence did the appeals have on contemporary colonial law? What influence did the appeals have on American law in the late eighteenth and early nineteenth century? Did the appeals help to create “American” doctrinal positions on common law and statutory interpretive issues?
For undergraduates or others just entering this field, a good contemporary source of basic English law is Thomas Wood’s An Institute of the Laws of England (1724 or later editions) (available by subscription online and in a modern reprint). A later contemporary source is William Blackstone’s Commentaries on the Laws of England (1765–1769) (available online and in many reprints). Be aware that Blackstone did not always state what the law actually was but rather what he thought it should be. There are many secondary sources to help decipher English law. J. H. Baker, Introduction to English Legal History may be of assistance; for greater detail, consult monographs and articles on a chosen topic. (Baker has good selective bibiographies for each chapter).
4. Pleading and Practice. The appeals contain important clues as to significant differences from and similarities to English pleading and procedural rules. In eighteenth-century English court proceedings, legal problems were litigated using specific forms of action and accepted pleading and procedural rules. The appeals indicate some instances where colonial law or the appeals themselves diverged from English precedents and procedures.
A particularly interesting example of divergence relates to title to land. As is well known, English practice in the eighteenth-century was, as a general matter, to try title to land by means of a variety of the action on the case known as ejectment. For historical reasons, the English action of ejectment was framed in the form of a claim by a lessee of the land that he or she had been ejected from the land. By the eighteenth-century, the lease, in many, but not all cases, was fictional as was the lessee. The case was described as John Doe (or Richard Roe) on the demise (i.e., lease) of X (the real party at interest) v Y (the defendant). In some cases colonial practice followed this form, and colonial lawyers seem to have been quite imaginative in devising names for the fictitious lessee. We find, for example, ‘Timothy Thrustout’ or ‘Thomas Turf’. In some cases – and this seems to have been particularly common in New England, though it is found elsewhere – the colonial courts seem to have reached the same result by other means. In particular, we find an action that is described in the Privy Council registers as ‘trespass and ejectment’. This action may have begun as an ordinary action of trespass to land, but when the parties came into court, the plaintiff made a declaration (the initial pleading in eigthteenth-century practice) in ejectment. By the time that the case reached the Privy Council the fictitious lessee, if one was ever alleged, was forgotten, and the case was styled simply as X v Y, the person claiming ownership against the possessor. How this action worked can only be determined by careful study of the surviving colonial records, which we have not undertaken. The practice may well have varied from colony to colony, perhaps even within colonies, and it may well have varied over time. What we have tried to do in the Notes for these appeals is to identify those lessees who are likely to be fictitious, and those who are not. Professor Donahue’s Ejectment Research discusses the terms used to describe actions for land, but much more could, and should, be done with the underlying colonial court records.
5. An investigation of the Privy Council appeals process. Many questions about the Privy Council appeals process remain uninvestigated. How did the Privy Council sort out what type of appeals it should handle? How did litigants in the colonies learn of the process? What did the British empire look like from the perspective of those involved with appeals? What was the relationship of arguments made in one appeal with another? Was the appeals process different with respect to colonial appeals than admiralty appeals or appeals to the House of Lords? For students interested in the history of the Judicial Committee of the Privy Council, the appeals can be used as sources for the early development. Later Privy Council materials can be accessed on the website Privy Council Papers Online.
6. An investigation of the English lawyers and related officials. Some of the lawyers who argued the appeals were among the greatest of English crown law officers and some (e.g., William Murray, later Lord Mansfield) went on to become important judicial figures. Charles Yorke, who appears more often than anyone else in our reports, was active in politics all his life, briefly became Lord Chancellor (as his father had been), and then committed suicide. The appeals have largely been ignored in studies of the careers of these men.
Cautionary Advice about the Catalogue
For all researchers, we suggest reading the ‘Advice’ section of the Introduction to the Catalogue when approaching a project. In addition, the ‘Useful Lists’ may be of considerable assistance.
Colonial court records. Note especially, that the Catalogue contains information about the appeal once it was appealed to the Privy Council. It does not contain much information about the underlying colonial case, nor any about the subsequent proceedings in the colony after the appeal was decided. Care should be taken in interpreting the appeal in the absence of consulting these colonial court records which provide useful clarification and explanation. Court records can resolve discrepancies. In one case, Oulton v Savage (05_1717_00), the APC describes Cornelius Waldo as an appellant while Smith’s treatise places Waldo as a respondent. A trip to consult the original Massachusetts records resolved the matter in the APC’s favor. Court records can be used to ascertain whether a reported colonial case is really the case appealed to the Privy Council. In Apthrope v Pateshall (05_1768_00) the court records and newly edited colonial reports resolved the question and, in turn, allowed us to cast light on what really was at issue in the case.
The lower court records may often be found through the local public or historical records offices. For colonial American courts, an excellent guide to such archives is Michael Chiorazzi and Marguerite Most’s Prestatehood Legal Materials. Careful consultation should be made of court record books (recording the procedural stages and disposition of the case) and the case files. An entire case file may include depositions, evidence, jury votes, maps, and other documents. In some colonies, consultation of the legislative assembly records or petition records may also produce related materials.
Sometimes, much can learned without a trip to the archives. We found reports of three of our Massachusetts cases in Quincy’s Reports, a book which has been in print since the mid-nineteenth century, and which has recently been given a new edition. We include images of the relevant pages of Quincy’s Reports on our site. Other colonies also have early printed reports. Additional research could explore, for example, the reports of cases that are included here and also in Barton’s Virginia Colonial Decisions or in Harris’s Maryland Reports. A comparison of the arguments made in a printed colonial case and those made in one of the printed cases on appeal might be a particularly appropriate topic for a law student’s paper.
Participants. Only a starting point for the participants in an appeal is provided by the Catalogue. For each appeal, the Catalogue provides a case name derived from the abstract in the APC and a list of persons named in the APC abstract. The case name and the list of participants, however, may not include every person involved in the appeal. Others may be found in additional printed documents. Be aware also that names are often spelled many different ways. Investigating the relationship among the people in the appeal is imperative. In some cases, particularly where ‘repeat players’ are involved (for example, the cases involving the Waldo family in Massachusetts or the Corbin family in Virginia), it may be possible to recontruct the social situation that gave rise to the litigation. Many people can be located using genealogical materials. One simple starting point is to search for the name through a search engine such as Google Books. Names may also be searched through a local historical or genealogical society. Paid sites such as Ancestry.com or Fold3 contain many useful records and may sometimes be used for free under a short-term trial membership. If you are a member of a university or public library, you may be able to obtain access to subscription sites.