Introduction

Appeals to the Privy Council from the American Colonies:
An Annotated Digital Catalogue

Introduction to Part 2

“Not True Appeals”

We have included in the catalogue as appeals either (1) cases in which there was an identifiable, final high court decision in the colonies or (2) cases which Joseph Smith included in his book as “appeals.” The Acts of the Privy Council, Colonial Series identifies a larger number of items as “appeals” in the index. In Part 1, we labeled these items “not true appeals” but created a case number for them and wrote reports on them. In Part 2, we have not done so, but we describe them here.

The vast majority of these instances appear in volume 2 of the APC, covering 1680–1720.¹ Our impression is that they are the result of uncertain boundaries with respect to the appeals process and, as the procedures clarified, these instances disappeared. The substantive area in which the uncertain jurisdiction is most evident was admiralty and prize cases. The Calendar of State Papers, both Domestic Series and Colonial America and West Indies (the latter being abbreviated as CSP) contain entries related to many of these matters and are conveniently searchable through British History Online. The notes that follow also contain references to other administrative records of the British Government and to literature contemporary with the items and to modern secondary literature that we have come across.

¹ The items in the following notes appear in Acts of the Privy Council, Colonial Series, vol. 2. The references are to the item number, not to the page number. The link brings you to the specific page in the volume, downloaded from LLMC Digital. (Be patient. The higher the number the longer it takes the browser to get to the page.) The references to the CSP are linked to British History Online, where they refer to a group of pages within which the item number may be found. The links on the first instance of a name brings you to the Index. There are also a few items in APC, vol. 6, with the same range of dates (below, notes 5, 9–10). The only other item that is “not a true appeal” is from St. Christopher and appears in volume 3 [153: petitions of Margaret Bridgewater and others, and Thomas Pilkington and his wife Parnal, formerly Parnal Fenton (Penton) regarding a crown grant of lands to Robert Cunnyngham]. The petitioners alleged their land had been included in error in the grant of land to Robert Cunnyngham and that that grant that had been the subject of a prior proceedings by John Spooner. In relation to this controversy, note that petitions of Robert Cunyngham concerning his lands in St. Christopher claimed by John Spooner and order referring same to committee with petition of John Spooner (5 papers) dated March 1725 are held at The National Archives in Conservation (PC 1/58/2A). We have not seen these papers. It is possible that there is some relation to the appeal of Lambert v Spooner (STC_1721_00).

In general, these items fall into one of four categories: First, some items represent orders referring petitions which relate to legal matters (e.g., the restoration of an estate), but in which the petitioner had not proceeded through the colonial courts.² Some of these items arose in the late seventeenth century when the appeals procedure and institutions were still in development. For example, Benjamin Middleton petitioned in February 1681/82 over the alleged application to his deceased father’s plantation of an Antiguan act requiring resettlement and tax payments to reclaim land lost in the French 1667 invasion.³ This type of petition continued, however, throughout the period. An interesting petition by John Holder, Treasurer of Barbados and Manager of the Bank, requested leave to appeal from the proceedings of commissioners who were tasked with executing an act repealing an earlier Barbados act permitting the issuance of paper currency.⁴

² Antigua: [204: Charles Henderson], [402: Mounteney Boncle (see CSP, vol. 13 [1501])], [567: Paul de Brissack/Brissac (see CSP, vol. 14 [1327])]. Barbados: [115: Mary Ayres, guardian of Thomas Ayres (see CSP, vol. 11 [1010])]; [172: Walter Stephens and creditors of Ralph Moxon and James Holloway (executed for treason), bankrupts (see CSP, vol. 12 [25])]; [206: Anne Baxter's pardon for son, James Baxter]; [774: Dorothy Bishop's petition for her restoration of her husband, Robert Bishop, as Chief Judge of Court of Common Pleas (see CSP, vol. 18 [27])]; [978: Thomas Maxwell's petition complaining of a writ of ne exeat insulam, barring him from leaving the island]; [1163: Governor Robert Lowther and Secretary Alexander Skene dispute over fees and emoluments]; [1307: Society for the Propagation of the Gospel in Foreign Parts complaining about orders requiring the depositing of accounts and papers relating to the Codrington estate]; [1328: Samuel Cox's complaint against Treasurer Edmund Sutton, with result that Cox be “left to this remedy at law.”]; [1338: Charles Irvin [Irvine], rector of St. Philips, complained about proceedings against him]. Bermuda: [70: Joan Somersall, widow of John Somersall, relating to case involving her power to void or alter his will, pending without determination before Bermuda Company (London)]. Jamaica: [184: Sarah Harrison's petition for land granted to her husband, Mark Harrison; for decision that her land was seized by writ of cessavit per biennium and alienated and therefore she is “remedyless” (see CSP, vol. 12 [175], [222], [650])]; [189: petition of Samuel Beake and others, resulting in act for their relief and other creditors of bankrupts possessing Jamaican estates (see CSP, vol. 12 [229], [246])]; [199: petition of Robert Colbeck relating to validity of will of Colonel John Colbeck (possibly relating to “Colbeck Castle”)]; [597: petition of Captain Dawes relating to misconduct and mutiny (see CSP, vol. 14 [1945])]; [618: petition of Usher Tyrrell requesting release of bond and free grant of plantation after French invasion (see CSP, vol. 14 [2290])]; [810: petition of Robert Chaplin, relating to objections to act for bridge as prejudicial to their ferry (see CSP, vol. 18 [1031])]; [1192: petition of Johanna Kupins, relating to escheated land]; Newfoundland: [1087: Simon Church-house’s (Churchouse) defense against the murder of William Fish in Newfoundland; creation of special commission to try John Chambers].

³ Antigua: [60: Benjamin Middleton (see CSP, vol. 11 [396])].

⁴ Barbados: [1055: John Holder's petition dismissed after hearing and the act put into execution]. A similar petition brought to effect a repeal of a law is [1333: petition against action of Committee of Public Accounts requesting the repeal of a law or the stay of proceedings under the law].

Second, some items represent complaints about the inability to bring actions in the colonial court, local court-related prejudices against the petitioner, or alleged extralegal actions by the colonial courts or officials.⁵ For example, John Staunton complained that he could not begin prosecution in Antigua being all the lawyers were attached to his adversary “being every one of them reteyned by them.”⁶ Thomas Maycock complained that his estate had been sequestered without security contrary to the “usual practice of that court.”⁷ Francis Lansa complained about the Governor of Barbados’ arbitrary proceedings in committing Lansa’s counsel to prison for a “pretended crime of forgery.”⁸ In Bermuda, Matthew Newman complained about excessive bail “contrary to the Bill of Rights.”⁹ In St. Christopher, William Freeman began a lengthy proceeding against Governor Christopher Codrington, eventually coming before the House of Commons.¹⁰ Richard Lloyd of Jamaica attended the Council to raise his petition asking for the pardon of Sherry, a “negro slave,” who had been sentenced to transportation for poisoning a “negro child.” Lloyd believed that Sherry was not guilty and that he had been “condemned to be transported on bare suspition [sic] only, which was no conviction in law.”¹¹

⁵ Barbados: [145: George Hannay, relating to allegations of false imprisonment of Richard Pain and Samuel Hanson (see CSP, vol. 11 [1568])]; [1099: John and Elizabeth Bentley asking for relief in debt claims against Richard Downes, Chief Judge of the Court of Common Pleas, who was given jurisdiction over the case]. Bermuda: [795: Charles Walker's petition to be granted probate of will of Henry Ford; related to Johnstowne v. Burton, Report No. BER_1700_01). Jamaica: [164: Matthew Meverall's petition, apparently relating to imprisonment by the late Governor Thomas Lynch after seizing the St. Thomas in violation of the Navigation Act (see CSP, vol. 11 [1998 and others])]; [165: Abraham Gill's petition complaining about imprisonment by the late Governor Thomas Lynch, relating to a contract to transport “4800 negroes” (CSP, vol. 11 [1999 and others])]; [187: petition of Thomas Ryves and others, executors of Thomas Martin [Martyn], relating to office of Receiver General]; [188: petition of Leonard Compear relating to failure to be put into possession of office of Receiver General]; [205: petition of Roger Elletson, relating to the suspension from the practice of law by the Governor; on controversy, see John M. Collins, Martial Law and English Laws, c. 1500–1800 (Cambridge: Cambridge University Press, 2016), pp. 243-44)]; [849: petition of Edward Baugh, request for King’s order to enforce Governor’s execution of writ of sequestration]; [881: petition of John Wilks on behalf of his brother-in-law, Joseph Haynes, imprisoned on complaint of wife for four years by Governor and council as Court of Chancery]; [1031: petition of Catherine Sparling for letters of administration of estate of Priscilla Emery, refused by Governor unless he was granted general release; order in favor of Sparling; see order APC, vol. 6, [176]]; [1184: petition of Robert Saunders, attempting to sue Gersham Elye, who claimed the privilege of members of the Assembly to avoid trial; the Committee finding against the privilege in this case and in the future (see CSP, vol. 27 [348] and ‘Journal, May 1713: Journal Book P’, in Journals of the Board of Trade and Plantations: Volume 2, February 1709 – March 1715, ed. E G Atkinson (London, 1925), pp. 427–431 (British History Online).)]. Montserrat: [1141: Edward Buncombe's complaint about failure of reparations for damages from a French privateer.] St. Christopher: [1281: Christopher Stoddard's complaint about dispossession by person under pretense of grant from Governor].

⁶ Antigua: [1303: Col. John Staunton].

⁷ Barbados: [977: Thomas Maycock].

⁸ Barbados: [1308: Francis Lansa's complaint about the Governor’s arbitrary proceedings against him and counsel Mr. Bleinman].

⁹ Bermuda: [1097: complaint of Matthew Newman for excessive bail “contrary to the Bill of Rights”; APC, vol. 6 [198: finding Newman guilty but bail excessive] and vol. 6 [201 (62)–(64): complaints of E. Jones, Secretary and Provost Marshal against Governor Bennett, including prosecution of Newman for accusing Governor of bribery]. See also St. Christopher: [1173: Robert Cunningham's complaint about refusal of release on bail].

¹⁰ St. Christopher [845: William Freeman's complaint against Christopher Codrington regarding two pretended justices of the peace and other matters]; additional details at APC, vol. 6 [42], [49]. For additional information about complaint, see Scott Mandelbrote, “Christopher Codrington,” in ODNB]. A number of printed materials are extant for the Freeman complaint: William Freeman, The case of William Freeman Esq; and others, the proprietors of lands in the Charibbee islands in America, under the government of Coll. Codrington, the present chief governour there ([?London], [1702]) (Eighteenth Century Collections: Gale CB129543710) (by subscription); William Freeman, A copy of the petition of William Freeman, Esq; in behalf of himself and others, against Col. Christopher Codrington Governour of the Leeward Islands. Presented to the House of Commons the 19th. of February, 1701. With some remarks thereon, ([London?], 1702) (Eighteenth Century Collections: Gale CW103852970) (by subscription); William Freeman, A copy of the articles exhibited by Mr. Freeman to the House of Commons against Col. Codrington: and some observations and remarks in answer to the same. ([?London], 1702) (Eighteenth Century Collections: Gale CW3303852984) (by subscription). Montserrat [127; see CSP, vol. 11 [1276]] also involves William Freeman with respect to a “disputed partition void because not made in legal form.” On Freeman, see David Hancock, “‘A World of Business to Do’: William Freeman and the Foundations Of England's Commercial Empire, 1645–1707,” The William and Mary Quarterly, 57 (2000), p.3–34 (JSTOR); The Letters of William Freeman, London Merchant, 1678–1685, ed. David Hancock (London Record Society, 2002). Our thanks to David Hancock for information regarding Freeman’s relationship with Codrington.

¹¹ Jamaica [1086: petition of Richard Lloyd]. For quoted explanation, see ‘Journal, May 1709: Journal Book N’, in Journals of the Board of Trade and Plantations: Volume 2, February 1709 – March 1715, ed. E. G. Atkinson (London, 1925), pp. 23–40 (British History Online) (orders in Council on the petition and report of Colonel Lloyd at the Council). Lloyd seemed to suggest that Sherry was in London with Lloyd. Lloyd suggested that he might be “permitted to return again to Jamaica, he being so useful to the petitioner’s plantation there.”

Third, some items represent references to the Committee for Hearing Appeals or Board of Trade of complaints relating to admiralty courts, prizes, or similar matters.¹²

¹² Antigua: [1142: Edward Chester], [1241: John Dean and the Three Sisters]. Barbados: [1133: David Creagh and John Clark and the St. James]; [1158: Raynes Bate and Thomas Stewart and the Camwood]. Bermuda: [1133: David Creagh and John Clark and the St. James]. Jamaica: [1153: petition of Thomas Simpson [Simson] and the widow of Charles Gandy requesting relief from prosecution by Charles Chaplain [Chaplin], Collector, relating to failed effort to outfit two sloops to patrol the island).

Lastly, several relate to the appeals process itself. In 1702, Barbados merchants brought a petition to the Committee for hearing appeals complaining about the “Clause inserted in the Governors Instructions for allowing Appeals” from judgments on Barbados. The complaint appeared to be that appeals were only permitted on cases over 500 pounds. The merchants were apparently heard at two meetings in July. The Committee referred the matter to the Board of Trade to “consider not only this clause but also for what lesser sum appeals may fittingly be admitted,” as well as a method to admit appeals from the Inferior courts of Barbados to the Governor and Council.¹³ In 1711, London and Bristol merchants petitioned for confirmation of all Jamaican judgments “grounded on the laws and statutes of England and the known customs of that island.”¹⁴ In 1714, Samuel Bernard and Kingston freeholders and inhabitants petitioned in favor of possible confirmation of a Jamaican act pulling down buildings without apparent indemnification (in the aftermath of the 1712 hurricane). The Committee advised against confirming the act unless indemnification was provided for and, in the alternative, suggested a different approach more likely to be confirmed.¹⁵

¹³ Barbados: [856].

¹⁴ Jamaica: [1138].

¹⁵ Jamaica: [1211].

These “not true appeals” emphasize the gradual imposition of categories and rules on the system of appealing from the British colonies to the Privy Council. Researchers should be cautious about comparisons made in number and types of appeals between this early period and the later periods when the institutional structure had become clarified.

10 December 2018.