soever, whom it may concern, are to take notice of his Majesty's royal pleasure hereby signified, and yield due obedience to every particular part thereof, as they will answer the contrary at their peril.

Charles J. Hoadly, editor, The Public Records of the Colony of Connecticut, 1726-1735 (Hartford, 1873), VII, 571–579 passim.

74. Defects of Colonial Judicature (1764)

THE

BY LATE GOVERNOR THOMAS POWNALL

Bibliography as in No. 53 above.

HE crown directs its governor to erect courts and appoint the judges thereto. The actual appointment of the judges is no where directly disputed. But the power of erecting courts, according to this instruction, is, I believe, universally disputed; it being a maxim universally maintained by the Colonists, that no court can be erected but by act of legislature. Those who reason on the side of the crown, say, that the crown does not, by erecting courts in the colonies, claim any right of enacting the jurisdiction of those courts, or the laws whereby they are to act. The crown names the judge, establishes the court, but the jurisdiction is settled by the laws of the realm; and "customs, precedents, and common judicial proceedings of a court are a law to the court, and the determination of courts make points to be law." The reasoning of the Colonists would certainly hold good against the erection of any new jurisdiction, established on powers not known to the laws of the realm; but how it can be applied to the opposing the establishment of courts, the laws of whose practice, jurisdiction and powers are already settled by the laws of the realm, is the point in issue, and to be determined. It will then be fixed, beyond dispute, whether the crown can, in its colonies, erect, without the concurrence of the legislature, courts of Chancery, Exchequer, King's Bench, Common Pleas, Admiralty, and Probate or Ecclesiastical courts. ———— If it should be determined in favour of the reasoning, and the claims of the Colonists, I should apprehend that the consideration of the points under this head, would become an object of government here, even in its legislative capacity. In which view it may be of consequence to consider, how far, and on what grounds, the rights of the crown are to

be maintained by courts of King's Bench, &c. and how far the revenues by courts of Exchequer, and how far the crown and subject may have relief by courts of equity. If in this view we consider the defects which must be found in Provincial courts, those point out the necessity of the establishment of a remedial general court of Appeal; but if we view the only mode of appeal, which at present exists, we shall see how inapplicable, how inadequate that court is. I cannot, in one view, better describe the defects of the provincial courts in these infant governments, than by that very description which my Lord Chief Justice Hales gives of our county courts, in the infancy of our own government, wherein he mentions,

"First, The ignorance of the judges, who were the freeholders of the county.

66

Secondly, That these various courts bred variety of law, especially in the several counties, for the decisions or judgments being made by divers courts, and several independent judges and judicatories, who had no common interest amongst them in their several judicatories, thereby in process of time, every several county would have several laws, customs, rules, and forms of proceedings.

"Thirdly, That all the business of any moment was carried by parties and factions, and that those of great power and interest in the county did easily overbear others in their own causes, or in such wherein they were interested, either by relation of kindred, tenure, service, dependence, or application."

Upon the first article of this parallel, it will be no dishonour to many gentlemen sitting on the benches of the courts of law in the colonies, to say, that they are not, and cannot be expected to be lawyers, or learned in the law. And on the second article it is certain, that although it be a fundamental maxim of colony administration, that the colonies shall have no laws contrary to the laws of Great Britain, yet, from the fluctuation of resolutions, and confusion in the construction and practice of the law in the divers and several colonies, it is certain, that the practice of their courts, and their common law, must be not only different from each other, but in the consequence different also from that of Great Britain. In all the colonies the common law is received as the foundation and main body of their law; but each colony being vested with a legislative power, the common law is thereby continually altered; so that (as a great lawyer of the colonies has said) "by reason of the diversity of the resolutions, in their respective superior courts, and of the several

new acts or laws made in them severally; the several systems of the laws of those colonies grow more and more variant, not only from one another, but also from the laws of England."

Under the third article, I fear experience can well say, how powerfully, even in courts, the influence of the leaders of party have been felt in matters between individuals. But in these popular governments, and where every executive officer is under a dependence for a temporary, wretched, and I had almost said, arbitrary support to the deputies of the people, it will be no injustice to the frame of human nature, either in the person of the judges, of the juries, or even the popular lawyer to suggest, how little the crown, or the rights of government, when opposed to the spirit of democracy, or even to the passions of the populace, has to expect of that support, maintenance, and guardianship, which the courts are even by the constitution supposed to hold for the crown - Nor would it be any injustice to any of the colonies, just to remark in this place, how difficult, if ever practicable it is in any of their courts of common law to convict any person of a violation of the laws of trade, or in any matter of crown revenue. Some of our acts of parliament direct the prosecution and punishment of the breach of the laws of trade, to take its course in the courts of Vice-admiralty: And it has been thought by a very great practitioner, that if the laws of trade were regulated on a practicable application of them to the state of the colony trade, that every breach of them should be prosecuted in the same way. That there should be

an advocate appointed to each court from Great Britain, who, having a proper salary independent of the people, should be directed and empowered to prosecute in that court, not only every one who was an offender, but also every officer of the customs, who through neglect, collusion, oppression, or any other breach of his trust became such. —-Here I own, was it not for the precedent already established by some of the laws of trade, I should doubt the consistency of this measure with the general principle of liberty, as established in the trials by a jury in the common law courts. If these precedents can reconcile these proceedings to the general principles of liberty, there can be no more effectual measure taken; yet such precedents should be extended with caution. The defect in most, and actual deficiency in many of the colonies, of a court of equity, does still more forcibly lead to the necessity of the measure of some remedial court of appeal and equity. . . .

Thomas Pownall, The Administration of the Colonies (London, 1765), 75-80.

CHAPTER XI-COLONIAL LOCAL

GOVERNMENT

75. The Business of a County Court (1681)

BY CLERK EPHRAIM HERMAN

The county court in the southern and middle colonies was rather administrative than judicial, and was the agent of local government. No detailed record of later date than 1681 has been found available. Bibliography: Armstrong, Record of the Court at Upland, Introduction; E. Channing, Town and County Government; G. E. Howard, Local Constitutional History.

June 14th 1681

AT

--

TT a Court held att Kingsesse for Upland County in Delowar River by his maytis authority

The Co Continued this action till next Co" day;

Deft

}

the deft 29 default

This action referred till next Court by reason that there's noe Court without Justice otto whoe is a party.

Justice Henry Jones & Justice George Browne were boath fyned for not attending ye Court to suply their places Each 10 pounds according to ye Law booke.

HANNA SALTER Plt

ANDRIES HOMMAN Deft

The Pt not appearing was nonsuited wth Costs;

William Boyles acquaints ye Cort that one Robberd michill next heir of Robberd hoskins deceased, is att p'sent alyve in England, and that hee ye sd will Boyles is by him ye sd Rob: michill desiered to take Care of ye Estate of ye sa deceased hoskins wth in this Country;

Upon Complaint of Christiaen Claassen; ordered that william Baale Give sattisfact: to Cristiaen for what Land hee had Cleared and all further Improovem in Equity

Claes Jansen brings in ye Eare marke for his Cattle & hoggs & desires that ye same may bee recorded; Granted & is as followeth viz! the foremost syde of yeEars halfe cutt away;

Justice George Browne appeared and sate in Cot being hindered to come sooner for want of a passage over ye Creeke;

LASSE DALBOO Plt
SWEN LOM Deft

Jurys names

James Sanderlins Will Boyles John Boeyar harmen Ennis will: orian andries peterss: & oele raesen

The Pt declares agt ye def!

for a peece of Land Lying in ye Schuylkill etc. The def! replyes that hee has had ye first grant & survey & paid quit rent.

The Pit craues a Jury wch was Granted and ye Jury Impannelled & sworne & ye: Case before them debated, they went out and returning brought in their verdict as followed viz! wee find for the deft: the Co doe passe Judgem! according to verdict;

Justice Otto Ernest Coch acquaints the Court, that hee has bought and paid of ye: Indian proprieto a certaine swampy or marshy Island called by ye Indians quistconck Lying att the upper End of Tinnachkonck Island in ye river opposit andrews Boones Creeke; and desires ye Cor approbation. The Co haueing weH Informed themselves about ye p'misses, doe allow thereof.

Upon ye Peticon of magist! Jacobus fabritius; ordered that ye Church wardens of ye Peticon Church doe take care that Every one of those as haue Signed & promissed towards his maintaynance, doe pay him ye sumes promissed, upon payne of Execution agst ye: deffective;

The def! alleadging that hee was not tymely arrested; The Case is referred til next Court;