COUNCILLORS AND THE LAW OFFICERS IN THE
COLONIES IN AMERICA
Leon T. David*
WE LIVE in an era of emergent nations, in which colonial relationships
have been shattered. In any revolution, order is succeeded by disorder,
and thereafter the prime problem is to bring that disorder into order
and stability again. The substitution of a reign of law from the reign
of men which usually attends revolutions will be our concern for many
years to come. Our Anglo-American colonial system was set up as an
emanation of the prerogative of the Kings. Its colonial governments,
whether under proprietary or royal charter, were considered to be
administrative agencies, not governments in the full sense of the word.
The governor and his council originally were the administrative agents,
engaged in administrative government embracing legislative, executive
and judicial functions. As contrasted to the parent Spanish system, or
the French or Dutch colonial systems, the engraftment of the general
assembly of burgesses upon the councilar form in Virginia,- followed by
similar organizations in later colonies, was destined to have far-reaching
consequences. Just as the commons in England, originally convened as
a part of the King's council, passed from the category of an assembly
for the King's government to an assembly to govern the King, so the
colonial legislative bodies in English America passed from advice, to
consent, to control, by successive stages.
Out of this experience evolved our federal system, under written
constitutions. Likewise, from this experience we derived and perpetuated
the mistrust which abolished the "Star Chamber" and inspired governmental organization under the concept of separation of powers.
Many believe that the lawyers and statesmen who are coping with
our current problems have ignored or are ignorant of our rich and
illuminating experiences. In our own dealings with pre-statehood Alaska
and Hawaii, in our current relationships with Guam, Puerto Rico and
the Virgin Islands, as well as in relation to the emancipated Philippines,
and with our Indian tribes, we perhaps have often ignored the lessons
of our own beginnings. Our Declaration of Independence is a denunciation of administrative or executive government. Yet even Henry VII
in all his administrative glory never had such an array of administrative
agencies, largely free-wheeling, as exist in state and federal govern* judge of the Superior Court of Los Angeles.
1. Chitwood, Justice in Colonial Virginia, Johns Hopkins Press, Hist. Ser.
iii-viii, 399, 415-16, 427-28 (1905).
XXIII,
no.
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ment today. In many aspects, they have become a law unto themselves;
and their coordination and control is again a pressing concern, at least
to some lawyers, whose march forward to new horizons is oriented a bit
by backsights on the receding shores of our legal history.
The council, in its various forms, is the prototype of the administrative
board or commission in which legislative, executive and judicial functions are performed. The curia regis of the English Kings underwent
permutations and transformations, whereby administrative committees
became law courts, while the shrinking core of functions remained in the
King's Privy Council, and the great administrative body, the Camera
Stellata, or Star Chamber, perished with the excesses of the Stuart Kings.
English constitutional history is concerned largely with the rise of
the commons, the control of official functions by the representatives of
the governed. We cannot forget that this history is part of our own.
But our development has been in a further direction. The charters
granted the English colonies in America were written grants and limitations of powers. During the Interregnum in England, this was attempted
in the Instrument for Government (1653).
The new rise of totalitarian doctrines in the world prompts us to
re-examine our history, in which we have attempted to substitute a
government of laws for a government of men. It should be a matter
of concern to every lawyer to study, examine and appraise the legal
structures of government. Having abrogated the personal prerogatives
of a personal monarch, who, when strong, could administer efficiently
and who could require performance of the functionaries of government,
we have substituted the mass of the people for the sovereign. Immediately, it is apparent that for this system to work, every functionary
should have a definite delegation of power and definition of his duties.
We have attempted this in constitutions and statutes. But who will
supervise, and call the officials to account? Whose duty is it to require
performance within the limits of the powers of attorney given officials?
Such responsibilities are widely diffused in our governmental system.
King Ahasuerus proceeded decisively to hang Haman, his conniving
prime minister, on gallows fifty cubits high. From early times, the
English Kings used the special committees of the court to consider such
matters. The Exchequer settled accounts of the sheriffs, and the fiscal
matters of administration. The Council sitting in Camera Stellata dealt
with defiance of the king's commands by powerful men and interests.
King's Bench and Common Pleas dealt with the breaches of the peace,
and so on. Legal history records how by various fictions, individual
interest came to be equated with the King's interest, so as to bring private
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litigation into his courts; and how those administrative committees
became law courts The officers administering this governmental system were the sergeants at law; then the roving inspectors general, the
justiciars; then the justices; and the attorney general.
We are concerned here with the counterparts of the King's private
council, the governors' councils in the American colonies, and the attorneys general in the colonies; and with the King's Privy Council and its
committee which supervised the legislation and the adjudications of
the colonial legislatures and courts.
We will consider how revolution and independence, to a great degree,
were fostered by the lack of definition of what law prevailed in the
colonies; and by a conflict as to what agency was to declare it; by
failures in law enforcement; and by conflicts in the allegiance of the
colonial attorneys general, as between the central power represented by
the governor and council, and the colonial assembly. In addition, the
absence of continuity in organization, authorization, and policy in the
committee of the Privy Council on overseas colonies and plantations
was a contributing factor.
Let us consider first, the role of the attorney general as the personal
representative of the King.
The servientes legem, or sergeants at law, were recognized early as a
professional administrative group in the King's service. Feudal land
law was their speciality. Conduct of the King's affairs led to the creation
of the offices of justiciar, then justice; the establishment of county
circuits and sessions for conduct of such legal business; the general
eyre, the jail delivery, the assizes. The main administrative offices, so to
speak, for final action, were the King's Bench, Exchequer and Common
Pleas at the King's Court, and the committee sitting in Camera Stellata.
When, by De Donis Constitutionalibusand Quia Emptores, the feudal
tenant became directly concerned with his newly recognized property
rights, these sergeants at law became available to represent private
interests when their services as King's counsel were not required. Thus,
the bar was born.
As the King administered his realm and his personal presence in all
the regional sessions became impossible, he appointed a general agent,
his general attorney or attorney-general. 3 With the exception of those
functions assigned to the civil law specialist, the advocate-general, the
attorney general's functions embraced the entire area of the King's
2. Plucknett, A Concise History of the Common Law, ch. 1-3 (2d. ed. 1936).
3. Consult Bellot, The Origin of the Attorney General, 25 L. Quar. Rev. 400 (1909).
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concerns.4 It was his duty to maintain the King's peace in the courts
through conduct of criminal proceedings. This duty sometimes tended
to eclipse the wide range of his agency for the supervision of administration by compelling the performance of duty, or keeping official action
within the bounds of the authority conferred, through a system of
calling to account, or reviewing official action. The division of the
King's council into the law courts had been an administrative functionalization for these very purposes,5 in the first instance. Prior to
Stuart excesses, the Court of Star Chamber had been very important
in this process. The so-called prerogative writs, which include certiorari,
mandamus, prohibition, injunction, habeas corpus, and quo warranto,
were issued to initiate the administrative processes involved where
purported official action was concerned. These writs became important
in the Tudor period, and while they might well have proceeded from the
council itself, their issuance by King's Bench kept the law courts in
public administration.6
In policing the public administration, the Crown proceeded through
the attorney general, and these writs became his principal procedural
tools. Beginning with Elizabeth I, there was a great enfranchisement
of trading companies or private corporations; so much so, that the fight
against monopolies commenced. Policing such corporate privileges was
then, and still is, the function of an attorney general. Since both
proprietary and royal colonial charters were classified in the same group
as other royal concessions, the attorney general was inevitably involved
in the long series of disputes over colonial charters, colonial powers,
and their annulment.
In canon law matters, and the commercial and maritime matters
bound up with the King's prerogative right to collect customs, the King
relied upon an advocate general, or procurator (the term "proctor" is
still used in admiralty). This civil law attorney was intimately involved
in enforcement of navigation and customs acts, in collection of fees imposed on commerce, and in forfeitures for smuggling or violation of
revenue laws. 7 Overseas, this office sometimes was combined with that
of the attorney general. The administrative tools used by the advocate
general were the libel of vessels, the seizure and sale of contraband and
boats which carried it, and suit on bonds exacted to ensure compliance
4. Plucknett, op. cit. supra note 2, at 205.
5. Consult Plucknett, op. cit. supra note 2, at 11-26.
6. Plucknett, op. cit. supra note 2, at 156-57.
7. The development of Admiralty, and its conflict with the common law courts, is
outlined in Plucknett, op. cit. supra note 2, at 590-93.
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with shipping laws. The creation of colonial vice-admiralty courts, where
jury trial was not given as of right; followed by creation of the ViceAdmiralty Court in Halifax (1764) with supreme jurisdiction, raised a
legal and political storm in New England.8
So long as the English colonies remained proprietary, the attorney
general represented the proprietor, and through or with him, the inhabitants were represented in dealing with the Privy Council. He was the
official who enforced their colonial laws. Prior to the grand investigation
by Edward Randolph, which led to the revocation of colonial charters
by quo warranto, and the establishment of the Andros consolidated administration, the royal attorneys general and advocates general in the
English colonies were untrained in the law; nor were they diligent in
the King's business, especially in matters of revenue.
In this colonial era, the granting of patents to overseas lands, of
charters to trading companies, or to communities, was regarded as the
sovereign's personal act, proprietary in nature. This was the common
legal theory in all of the colonizing countries. From the time of Edward I, privileges, governmental in nature, had been conferred on
English cities, towns and boroughs, or their claims of right to the same
had been confirmed and recognized by a charter under the royal sign
manual. Under the feudal system, the grant of manors carried with it
the right to conduct manor courts. In the towns, there had been a
metamorphosis of the merchant guild whereby it became a governing
body of burghers or selectmen, the collect of those having the liberties
of the town. One admitted to the liberties, entered into a formal contract to observe the by-laws, and to contribute his scot and lot. In the
bargaining with the King for such grants, the king's officers were sometimes to be excluded in favor of the local authorities. °
When overseas grants were made and trading companies established,
they were considered to be of the same general legal character as the
8. Following the Navigation Act of 1696, commissions were issued by the Board of Trade
to the governors of Massachusetts, New York, Maryland, Pennsylvania and Virginia as
vice-admirals to set up special vice admiralty courts, naming the judges and other
officers. Appeals lay to the High Court of Admiralty until 1748; dual appellate jurisdiction
with the Privy Council thereafter to 1766, until new admiralty courts were set up under
the Townshend Acts (1767). Morris, Encyclopedia of American History 58 (1961).
The governor was ex officio vice admiral of England. 1 Hutchinson, History of the Colony
and Province of Massachusetts Bay 300 (Mayo ed. 1936), in relation to Governor Dudley.
9. Consult Encyclopedia Brittanica, titles: Charter; Chartered Companies; Company and
Corporation Law; Monopoly subtitle Monopolies by Grant and Patent, and Legal Aspects
(14th ed. 1959).
10. In 1315, it was charged against the city of Bristol that three of the king's sergeants
were run out of town, and that the town imprisoned three others. 1 Rot. Par. 360(a) (b),
361.
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borough charters. The establishment of governments under them was
considered to be the same, in essence, as the privileges enjoyed by the
cities. The charter was a personal contract between the King and the
contracting parties. In this, Magna Carta and the Charter of the Forest
were no exceptions. Since they were personal contracts, charters were
terminated by the death of the sovereign. Consequently, with the same
frequency with which state legislatures now pass validating acts at the
commencement of each session, each English monarch upon his accession customarily made his Confirmatio Cartarum, affirming the charters,
grants and privileges enjoyed under his predecessors. Sometimes the
King made new demands as the price of confirmation. Sometimes, such
confirmation was the price of support for the monarch, as when William
of Normandy faced the trained bands of the City of London in 1066.
Early confirmations referred generally to the ancient privileges and
liberties, without defining them. Under Norman legalism, with the
growing strength of the monarch, the proof came to depend upon the
production of the written grants. As rights or liberties were claimed
against the King and his officers, the writ of quo warranto brought the
claim before the King's courts for justification. If breach of a condition of the grant was claimed, quo warranto likewise was employed
and frequently resulted in nullification of the charter." When the
charters of mighty London were thus annulled, the apogee of royal
prerogative was reached.
Upon any breach by the King of such a compact, the only remedy
of the subject was by petition or recourse to arms like that made by
the barons who wrested Magna Carta from King John; the "Appeal to
Heaven" as the Massachusetts General Court once stated.
The legal concepts attending the royal grants or charters, and the
prerogative writs of mandamus, instituted in the King's prerogative
courts, underlay the heated political discussions which burst into the
red flame of the American revolution.
Within our colonial era, by three revolutions in England, the King's
11. Quo warranto was first employed against individual proprietors of the Massachusetts
Company; but they refused to surrender the Charter, and after the Restoration, it was
considered in force and effect. Consult Osgood, The American ColOnies in the Seventeenth
Century (1904).
The Massachusetts charter was annulled in 1684. I Hutchinson, op. cit. supra note 8, at
3, 4, 288. Rhode Island and Connecticut surrendered their charters, and secured new ones
(1663-64). Quo warranto was employed to annul proprietary authority in Delaware, Maryland and the Carolinas.
12. In the bid for royal power, much was made of the action by quo warranto by which
the charter of the city of London itself was annulled: 8 Howell, A Complete Collection of
State Trials 1039-1347 (Hansard ed. 1814). The charter was restored by 2 Wm. & Mary,
sess. 1, ch. 8 (1689).
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agents to govern the realm became the agents of the realm to govern
the King. The successive crises in which the affairs of church and state
were inextricably entwined peopled some colonies with persons who
detested the sovereigns, others with those who supported them, with
those who supported the Parliament, with those who detested it, and
with those glad to be rid of both. In that period, the royal prerogatives
diminished; although, except in the Interregnum, there was a Privy
Council in which the residium of royal power was exercised.
In the revolution of 1689, Parliament overthrew the Stuarts and
brought William and Mary to the throne by invitation. The Act of
Settlement was made as a treaty with the new sovereigns. In view of
the annual settlement, it was asserted 60 years later that Parliament had
bought out the royal prerogative or proprietary rights with scant exception, and that the Crown had surrendered them. 3 Only the Penns had
the pre-vision to secure Parliamentary confirmation of Pennsylvania's
proprietary charter before this time.
In the eyes of the ministers of George III, the Privy Council's functions were now delegated to it by Parliament in the exercise of its
powers, a position bulwarked by the rise to power of the cabinet as
the parliamentary element in the Council. The general assertion of
Parliament of the right to govern the colonies (Declaratory Act,
March 18, 1766) forced the colonies to assert the continued existence
of their charters, despite the change of circumstances.
Even as the attorneys for the cities and towns were employed with
the defense of their rights and privileges, the English colonies sought
defense and vindication of their charter rights through their attorneysgeneral.14 The relationship of this officer to administration was there13. In the coronation oath, 1 Win. & Mary, sess. 1, ch. vi, 3 Stats. at Large 12, the monarchs undertook to govern "according to the statutes in Parliament agreed upon, and the
laws and customs."
14. Chalmers, Opinions of Eminent Lawyers on various points of English Jurisprudence
Chiefly Concerning the Colonies, xxii-Iiii (London, 1814) listing American lawyers whose
opinions were given to the Lords of Overseas Colonies and Plantations, including Chief
Justice Lewis Morris of New Jersey.
James Abercromby, who served in both the office of attorney general and advocate
general of South Carolina, later was employed by North Carolina and Virginia as colonial
agent. He proposed to the lords the reform of the colonial administration (1752) but the bill
he presented to Lord Halifax, President of the Board of Trade, was not adopted. It was a
penetrating proposal to meet the points at issue in the colonies. See Goebel, Cases and
Materials Upon the Development of Legal Institutions 168, 578-82 (1946).
The Privy Council required that agents for the colonies be appointed, and resident in
England. In 1660, Captain John Leveritt, as agent for Massachusetts, contended that
appeals in law suits did not lay to the Privy Council.
3 Palfrey, History of New England 309 (1858, 1898). Both William Penn and Benjamin
Franklin served as such agents.
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fore of great importance. Was he to represent colonial rights or was
he a handmaiden of the Crown? This issue was continually present
throughout the colonial period. Was the attorney general, like Coke,
the defender of colonial liberty, or was he an administrative "stooge"
of the governor and council, who might by diligence become another
one of the "atrocious judges" for sustaining the power of the central
government?
Spain's colonial adventures began a century before England's were
made possible by the defeat of the Spanish Armada. In Spain, the
Council of the Indies developed as the special agency under the Council
of Castile to deal with colonial matters. In England, there was a corresponding delegation of function to Privy Council committees. 15
Charles I (1625) set up a Commission of Trade. In 1632, there was a
short-lived committee on New England Plantations. From 1634-41,
there was the Commission on Foreign Plantations, but special committees often served. In the Interregnum (1643-59), there was a
Parliamentary Commission for Plantations; the Council of State took
over its functions, and itself constituted standing committees for trade
and plantations. Beginning in 1653, the Protector's Council directed
plantation affairs, with new committees assisting, known as the Committee for Foreign Plantations (1655) and the Committee for America
(1656); both replaced by the Council of State in 1659.
In 1660, after the Restoration, the King appointed a Privy Council
committee for trade and plantations, whose members were known as the
Lords of Trade, reporting to the Privy Council as a whole. This administrative arrangement bogged down. In 1668, a special council for
trade and plantations was reinstituted. By 1675, its functions were
assigned to the Lords of Trade.
15. The colonial adventures of Britain in America lagged a century behind those of
Spain, despite the claims based upon the early exploration of the Cabots (1497-98).
Frobisher's discovery of Baffin Land (1576) prompted further efforts by the East India
and Muscovy Companies to develop a Northwest passage to the Indies. Sir Humphrey
Gilbert obtained a patent for discovery and colonization which sank with his vessel (1583)
and his half-brother Sir Walter Raleigh had no greater success, in reference to Virginia. Sir
Francis Drake claimed New Albion or California for Britain in 1597, but no colonial
efforts followed. After the defeat of the Spanish Armada (1588) had made the seas safer
to sail, the incorporation of trading concerns for New World development was accelerated.
In 1606, the Plymouth or North Virginia Company and the London or South Virginia
company were chartered. With the founding of Jamestown (1607) a period of company
government ensued, in which the governor and his council, company-appointed, conducted
the government, under laws they established. To this point, there was no essential organizational difference from the Spanish system. The feature which was to become the most
significant factor in later years was the institution in August 1619 of a General Assembly,
composed of two burgesses from each town, hundred or plantation. This was the provision made in Spain for the Cortes, but it was probably coincidental only.
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William III appointed a new body, the Board of Trade, which combined both Privy Councillors and paid members. This functioned in
colonial relationships until after the American revolution, with various
internal administrative changes. Originally, it was empowered to supervise plantation affairs, to recommend persons for appointment as colonial
officials, and to review colonial legislation. At the beginning of the 18th
Century, two Secretaries of State were added to the Privy Council and
the Secretary of State for the Southern Department took over appointment of colonial governors, until an order in 1752 restored the power
of the Board to nominate governors for consideration of the Privy
Council. Beginning in 1766, colonial affairs were channelled through
the Secretary of State; but between 1766-1782, there was administrative
coordination, in that the Secretary was also the First Lord of Trade and
president of the Board. Through him, instructions were issued from
time to time to the royal governors. As centralization progressed, the
Secretary undertook appointment of provincial officials. In conflict with
this array of officials, especially the governors, the provincial assemblies
in New York, Massachusetts and New Jersey exercised their power over
appropriations to curb the royal officials. When in 1761, it was directed
that the governors appoint judges to serve at the pleasure of the Crown,
taking them out of local control, there was concerted opposition.",
When the Board of Trade and Plantations was set up in 1696, it was
composed of two nobles and eight commons, and John Locke was-then a
member." Necessarily, it required legal counsel. It had the right to
secure opinions from the Solicitor General and Attorney General of
England. On occasion the Lord Chief Justice Holt was called upon as
an adviser.18 Where treaties were involved, the King's Advocate General
was called in.'"
By 1718, pending legal matters were so numerous that Richard West
became full time counsel. He was paid three hundred pounds a year, and
both the Solicitor General and the Attorney General were called upon occasionally. In 1766, the Board was blamed for bumbling the Stamp Act
crisis and was reduced to an advisory body, but was restored in 1768
when a Secretary of State for the colonies was appointed. 0
The Privy Council, through the Board in all of its phases, was required to consider and approve all colonial laws (except in Maryland,
16. Morris, op. cit. supra note 8, at 58-59.
17. Chalmers, op. cit. supra note 14, at viii.
18. Id. at x-xi.
19. Id. at xii.
20. Id. at xii-xv.
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under the Lord Palatine, and in Pennsylvania, prior to 1700). Of some
8,563 acts submitted for approval, it disallowed 469. In judicial matters, there were some 1,500 appeals taken from the American colonies
from 1693-1783.21
Here, indeed, is an administrative hodgepodge. One concludes there
never was a fixed or complete plan for colonial administration, nor
professional administration of it. The attempts to organize and
systematize were too late when undertaken by the well-devised plan
under which Andros and Randolph labored. It took Braddock's defeat,
and the cost of the war in America, to stir interest in the colonies and
their governments, but this was largely a fiscal interest.2 2 There were
discerning governors, council members and law officers, but not even
they could neutralize the cumulative effects of the turmoils in English
constitutional development, the neglect and inattention, and the selfhelp in the colonies which the former had engendered. 3
It might be said that in the colonies, there was no general resistance
to government by orders from the Privy Council so long as the local
judge and jury determined whether a defendant had violated them. But
the consolidation of the law making power, the power of veto over
colonial legislation, and the passing upon appeals from the courts in
the Privy Council or the governors' councils was intolerable.24
The English colonies in America had been established with the hope
that they would bring commerce and wealth to the mother country.
In the early years they did not. There were timber and ship's stores
and indigo and tobacco which the Yankee sea captains would eventually
hawk about the ports of the West Indies and Europe and trade .which
was carried on without compliance with navigations and customs acts,
sometimes with countries engaged in conflict with England. The Western
Hemisphere was a little world of its own. Engrossed in the wars with
the Spanish, Dutch and French, beset by internal warfare and revolution, the colonies shifted for themselves. Toward the close of the 17th
Century, it was apparent to the fiscal authorities in England that the
administration of the customs in the new world was inefficient and
21. Morris, op. cit. supra note 8, at 58.
22. The colonies generally failed to meet their commitments in mounting and supporting
Braddock's expedition. Consult 2 Freeman, George Washington 21-34, 38-46, 48, 93 (1948),
23. In connection with the establishment of the commissioners of Trade and Plantations
to solve the problems presented, it was wondered what to do about New England, "and
there was feare of their breaking from all dependence upon this nation."
Penepacker, The Duke's Laws: Their Antecedents, Implications and Importance,
Anglo-Am. Leg. fist. Ser. 1, Number 9, at 41 (1944).
24. Consult Smith, Appeals to the Privy Council Iront the American Plantations 1-214,
523, 551 (1950).
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half-hearted. Governors, assemblies, councils, attorneys and advocates
general appeared to have become very lax where the King's revenue
was concerned, which when collected at all, was placed in colonial
treasuries. Colonial courts, operating with juries, had been engaged in
admiralty causes. English advocates had never heard of such a thing
before and it seemed that juries did not do their duty in the trials that
came before them.
In English America, the pattern for colonial organization in both
proprietary and royal colonies included a governor. He represented
the proprietors in the proprietary colonies. As one after another of
the proprietary colonies became royal colonies, and as royal colonies
were established, he became the representative of the Crown, and was
guided by instructions from the Privy Council since he held office
under the royal commission. He was a vice-admiral, invested with
admiralty powers, and he and his council technically were the admiralty
court, though such powers sometimes were exercised by the other judicial
bodies which were set up. The governor and his council was the last
court of appeal in the colony from which appeals were taken to the Privy
Council in England, and in some colonies, in early times, it was also a
trial court. The council members in the proprietary colonies were
appointed by the proprietor. One reason for the failure of the proprietary
governments was that frequently such council members never left
England."5 In some colonies, the attorney general was a member of
the council.
South Carolina was typical. Commencing in 1726 the governor and
council constituted the court of appeal from which appeals were carried to the Privy Council under a series of instructions. 2 6 After John
Rutledge became attorney general in 1764, both he and the council
were greatly concerned with making the directions for appeals to the
Privy Council effective.2 7 Numerous acts of South Carolina were
nullified.2 8
The governor's council, beside its judicial functions, was an upper
25. Twelve men were appointed to the Council for the Carolinas, but were largely non-
resident, and the governor almost unilaterally exercised power.
Gregoire, Records of the Court of Chancery of South Carolina, 1671-1779, 9 Am. Leg.
Rec. Ser. 25 (1950).
Massachusetts really passed from company to colony, by a determination made to
transfer the company headquarters to the colony, dropping those who would not emigrate.
The policy was carried out in 1629, and John Winthrop thereupon was named governor,
and Thomas Dudley, deputy.
1 Mass. Col. Rec. 49, 52; Tyler, England in America (1580-1652) 193 (1904).
26. Goebel, op. cit. supra note 14, at 230-33.
27. Id. at 385-90.
28. Id. at 475, 534-36, 597, 605-06, 613, 633-34.
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house of the legislature whose assent became necessary to legislation.
On the other hand, it acted unilaterally in matters which were comparable to those handled by orders in council in England. The legislative assembly, particularly in Massachusetts, sought the power to
nominate the members of the council. This produced stalemates, for
if the council members supported the General Court, they could be
opposed by the governor, and if they supported the governor, they
would not be renominated to the council.
In New York, Governor Hunter who was vested with the duties of a
chancellor in equity, asked the Board of Trade in 1711 what to do, as
he felt his inadequacy. He was advised his council could set up any
court required; but when it was so established, the Assembly in 1727
asserted it was illegal, not having been set up with its consent.2
As in Connecticut, the general court, or general assembly of a colony,
composed of the representatives of towns, boroughs or parishes, usually
determined capital offenses, granted and determined appeals from the
courts of first instance and granted divorces, and the like. 0 These
brought the attorney general before them.
From his position in the hierarchy, the attorney general was politically
buffeted from all three elements: the general assembly, the council and
the governor. The control of the appointments and the salaries on the
civil lists was a consistent objective of many colonial assemblies.
In two instances at least, a governor and council were established to
govern without the addition of a representative assembly. This was in
West Florida, in 1765, where the Spanish had been supplanted by the
English. West Florida at that time fell within the jurisdiction of General
Gage. The Lords of Trade appointed a governor, Johnstone, and a
council was set up. Edmund Wegg was commissioned attorney general,,'
The inhabitants petitioned for an assembly but this was refused.3 2 Claiming that they had been derelict in their duty, but largely because of their
opposition to him, the governor purported to suspend the attorney
general and chief justice. However, the attorneys general had the right
to communicate with the Privy Council directly; and following Wegg's
report, supported by a petition of the inhabitants on his behalf, he was
33
returned to office.
After her conquest, Canada was governed upon an ad hoc basis from
29. 5 Documents Relative to the Colonial History of New York 208, 232.
30. Bacon, Civil Government in the New Haven Colony, 1 New Haven Historical Soc.
Papers 11 (1865).
31. 2 Mississippi Provincial Archives 190, 341, 506-09, 319 (Rowland ed. 1927).
32. Id. at 305.
33. Id. at 506-09, 532.
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1763-1774. In the latter year, the Quebec Act was passed, retaining
the council as the legislative body, subject to the royal veto, and the
powers of all but local taxation were reserved to the British Parliament.
Religious toleration was established. Civil cases at law were not subject to trial by jury. This establishment of administrative government,
and recognition of Canadian boundaries which cut into the claims of
Virginia, Massachusetts and Connecticut westward to the Ohio River,
was a cause of complaint set out in our Declaration of Independence.
What were "the laws of England"? The status of royal orders in
council as "laws," meaning those not adopted by the consent of a
4
parliament, was challenged continually in the conflict with the Stuarts.
The "common law" was customary law, developed by the law courts.
Statutes as we know them were regarded as compacts, made between
the sovereign and those who gave consent through their representatives;
similar to the consejo or acuerdo in the Spanish system.3 5 What were
the judicial precedents? There was no official reporting. From 1688 to
1788, not a single treatise on law was published in the English colonies.3 6
It was 1765 before Blackstone organized precedents into a coherent
text, constituting the first significant modern code. The tremendous
popularity of Blackstone in the colonies prior to the American revolution
attested to the vacuum which it began to fill.
The bulk of the common law was land law, feudal in origin, not
generally adapted to colonial conditions where land was plentiful, though
titles often were derived by grant from the royal patentees. The attempt
to operate under Locke's feudal Fundamentals in the Carolinas lasted
only a generation. Only Pennsylvania made a blanket adoption of the
English law, and as a consequence, the "Philadelphia lawyer" was the
only professional in the field for many a year. There were qualified
adoptions of the English law in New York,37 Carolina 3' and Maryland.
But what were the investigating officers from England to think of the
theocratic systems? In the New Haven Colony, as in early Massachusetts,
the "word of God" was adopted and all other legal systems were ex34. As in Maryland: 2 Bozmnan, History of Maryland 41 (1837).
35. Consult Encyclopedia Brittanica, title: Petition (14th ed. 1959); Plucknett, op cit.
supra note 2, at 286-92.
36. Jackson, The Supreme Court in the American System of Government 34 (1955).
37. Reporting to the Board of Trade, Governor Dongan in 1687 transmitted an outline
of the court system. 1 Documents Relative to the Colonial History of New York 147.
The royal officials transmitted the code of laws to the Privy Council in 1699, with derogatory comments. 6 id. at 600.
38. Consult Gregoire, op. ct. supra note 25. The English common law was adopted in
1715, so far as consonant with local conditions.
AMERICAN UNIVERSITY LAW REVIEW
[Vol. 12
cluded.39 In this respect, from the signing of the Mayflower Compact
to the Declaration of Independence, Massachusetts was a legal maverick,
40
since the theocratic state was always out of step.
Unlike the Spanish system, where national law had been made directly
applicable to the overseas colonies, or the French, in which the full
power to modify the national law was vested in the Governor and Council of Nouvelle France, the English colonial charters conferred local
legislative powers only so long as the enactments "be not contrary to
the laws of England."'
Where the applicability of English law was in question, it was held
generally by colonial assemblies that it was not adapted to their circumstances unless it had been adopted. 42 Under the general restriction, there was room for argument, which occurred time and again
when governors or councils refused assent to enactments of the colonial assemblies. 41 Ultimately, the Privy Council made the determina39. Bacon, Civil Government in the New Haven Colony, 1 New Haven Historical Soc.
Papers 11 (1865).
40. The Bible was the law book; magistrates were laymen. After the trial of Anne
Hutchinson for violation of the Fifth Commandment, i.e. dishonor of her elders by dis-.
puting their religious views, in 1637, the deputies became aware of the dangers of magistral
discretion, and as a result, there was drafted the Body of Liberties, a convention adopted
by the towns, as a basic code. Consult Winthrop's Journal in History of New England,
1630-1649 at 151 (Hosmer ed. 1908). The Privy Council disallowed the Mosaic Code as
the penal law: 1 Hutchinson, op. cit. supra note 8, at 49.
41. Consult McDonald, Select Charters and Other Documents Illustrative of American
History 1606-1775 (1906), for such provisions, as follows:
Virginia, second charter, par. XXIII at 16;
Virginia, third charter, par. VIII, at 19;
New England, Patent for Council of, at 20;
Virginia, Ordinance for (1621), at 36;
Massachusetts, first charter (1628-1629), at 40-41;
Maryland, Charter, par. VII, at 57;
Providence Plantations, Patent (1643), at 93;
Carolina, first charter, par. 6th, at 123;
Rhode Island, charter (1663), at 130;
New York (1663-4) Grant to Duke of York, at 138;
New Jersey Concession (1664-5), at 143;
West New Jersey Concession, at 182;
Pennsylvania, charter, at 187;
Massachusetts, second charter, at 210;
Georgia, charter, at 242;
Royal Proclamation Concerning America, at 269.
By 7 & 8 Win. III, ch. 2, an "Act for Preventing Frauds, and Regulating abuses in the
Plantation Trade," it was provided in the Ninth section that all laws, by-laws, usages or
customs in the colonies repugnant to the laws and statutes of England or the statute in
question, or to any law hereafter made in England, so far as the same related to and mentioned the colonies or plantations were declared "illegal, null and void, to all intents and
purposes whatsoever."
42. 1 Hutchinson, op. cit. supra note 8, at 3.
43. This sometimes was determined upon appeals. Thus in an early action in Massachusetts under Assistant Samuel Symonds it was held a town did not have power to
LAW OFFICERS
tion.44 Disapprovals were many, and were evaded by substantial reenactments of the disapproved laws,45 aided by the time lag involved in
46
reference to London.
In the process of determining the applicable law, one would expect to
find that the attorney general would be of prime importance. One must
conclude that the attorneys general in the colonies in many instances
were incapable of doing so; and in other cases, though able and wellintentioned, were unable to procure convictions in the colonial courts
in cases of state interest. On the other hand, it must be said that attorneys general of England, such as Northey, ruled in favor of the colonial
contentions 47 in important matters such as the status of colonial charters.
The Privy Council committees continually sought legal advice on colonial
matters, and some of this came from distinguished members of the
48
colonial bench and bar.
But the piecemeal determination of legal questions, especially those
in the field of public administration, case by case, is rarely adequate for
administration. The hammering out of doctrine, applicable to the relevy execution upon a person for failure to pay a tax voted to erect a dwelling for the
minister, to which he did not assent. This was the first of a number of instances where
official action was refused enforcement for want of what we now term "due process of
law." Consult 2 Hutchinson Papers 1 (Prince Society Publications, Albany 1865).
In 1681, the Massachusetts General Court half-heartedly complied with the Privy
Council's order to revise many offending laws; but in doing so, asserted that the Massachusetts Colony was not governed by the laws of England, not being represented in the Parliament. One of the required changes: legal process which had issued in the name of the
colony was required to issue in the name of the King.
5 Palfrey, op. cit. supra note 14, at 198, 200.
44. Exception: in Maryland, the Lord Palatine could legislate without submitting the
laws to the Privy Council. But having constituted an assembly, the assembly refused assent
to laws he promulgated, and he vetoed laws the assembly passed. Many demanded that
the laws of England be adopted.
Siousset, The English Statutes in Maryland 1 (1903). Certain English statutes were
selected and adopted.
Bozman, History of Maryland 1, 41, 42, 56 (1837). Then there was agitation that
appeals should go to the King, not the proprietor or the council: Maryland Archives,
II Proceedings of the Council 140. The proprietary was displaced in 1692, but restored in
1715.
45. By the laws of 1683-84 (Pa. Laws 1683 ch. 66; 1684, ch. 167), Pennsylvania enacted an act for the liberty of conscience, which was vetoed by the Privy Council. Noting
the prior disapproval, the General Assembly proceeded to reenact the statute a few years
later. B. Franklin, Charters of Pennsylvania and City of Philadelphia at 3 of statutes
(1742).
46. Colonial assemblies devised the expedient of enacting laws, to be effective by their
terms for less than the three years that Privy Council review might take.
1 Hutchinson, op. cit. supra note 8, at 48.
47. In 1690 and 1693 opinions were given that the charters of Connecticut and Rhode
Island, respectively, had not been validly revoked by quo warranto in the general annuilment of charters undertaken after Randolph's reports, and those of the royal commissioners
investigating matters in New England, 1664-66.
48. Chalmers, op. cit. supra note 14.
AMERICAN UNIVERSITY LAW REVIEW
[Vol. 12
lationships of men and their government, presupposes an active and
adequate bar. The absence of such a bar until late in the colonial
period, may well have been an insidious factor in the administrative
deterioration which made revolution possible and even inevitable.
Until well into the 18th Century, the lawyer was a pariah in most
colonies. He was prohibited from practicing his profession, and in some
colonies, from being a member of the assembly.4 9 In the early years, the
prosecuting officers were laymen; the sheriff in the lower courts sometimes carried on the legal proceedings." Likewise, the attorney general
for the colony was frequently unskilled in the law. This undoubtedly
hastened the day when the Privy Council or the English Secretary of
State made such appointments to secure some proficiency.
The duties of the attorney general undoubtedly were thought to embrace the powers of that office as exercised in England under the writs
making the appointments to the office and as developed in the courts.
Some definitions of duty were made by colonial statutes. An early
statute is of interest: By act of the Rhode Island General Court or
Assembly in 1650, the attorney general was to
have full power to impleade any transgression of the laws of this State
in any Court of this State; but especially to bringe all such matters of
penall law to try all of the Generall Court of Tryalls, as also for the
tryall of the officers of the State at the General Assemblies and to impleade
in the full power and authority of the free people of this State, their
prerogatives and liberties; and because envy, the cutthroat of all prosperitie will not faile to gallup withe its full careers, let5 the sayed Attorney
be faithfully ingaged and authorized and supported. '
Here, for the first time, the colony adopted the style of a state. For
the first time the attorney general was made the public guardian, to
bring to trial the officers of the state itself. In this, we have the
recognition that the attorney general is not a handmaiden of the executive, but the general attorney of the free people for defense of their
liberties. The civil list shows that the office in Rhode Island was filled
by the General Assembly until the Andros administration took over in
1689.52 But, under the Royal Charter of 1663, the Rhode Island General
49. Arnold, II History of Rhode Island and Providence Plantations (1874); Chalmers,
op. cit. supra note 14, at 206; Charles Warren, A History of the American Bar 11-15, 60,
135-136, 141, 225-227, 232, 235-236 (1913), op. cit. supra note 1, Virginia: Chitwood, at
514; Hening, 1 Va. Stats. at Large 482, 495.
50. Thus, in Delaware, the High Sheriff presented and prosecuted criminal cases in the
name of the King. 1 Records of the Court of New Castle in Delaware 3 (1904).
51. Act of General Court, 1 Rhode Island Col. Rec. 225-26 (May 23, 1650).
52. In Rhode Island, the General Assembly in 1649 appointed Richard Knight as General
Sergeant, William Dyre as Attorney General, and Hugh Bant as Solicitor General. In 1654,
and annually thereafter for a time, each successive assembly appointed a committee to
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Assembly passed an act "directing the Duty of his Majesty's AttorneyGeneral in this Colony," in which he was to
give unto such courts general sessions [assize and goal delivery], due
advice and information concerning any criminal matters, breaches of the
peace, or wrong done his Majesty, or any of his subjects that shall come
to his knowledge, and draw up and present to such courts all informations
and indictments, or other legal process, against any such offenders as by
law required, and diligently by a53due course of law to prosecute the same
to final judgment and execution.
This, indeed, was a significant change.
In Maryland, the Crown seized the government from the proprietor
in 1654-1658. The appointment of the attorney general stems from this
period. 4 The proprietor made an appointment in 1658 but after the
Restoration, affairs proceeded as in the other royal provinces. The
archives reveal that the attorney general was to sue, pursue, prosecute,
and plead on behalf of the proprietor, or in his defense, as a general
attorney. He reported to the governor and council and received directions from them and, with their approval, appointed the deputy attorneys and clerks for the county courts. He was charged to represent the
public interest in matters "relating to the Liberty of the Inhabitants or
their Possessions. 515
As early as 1675, legal inactivity in the King's interests led to the
dispatch to America of the deputy auditor-general, Edward Randolph. 6
It was neither the first time nor the last that special commissioners, like
the Spanish oidores, were sent out to investigate and report.5 7 Randolph
outdid them all. His energy was such that royalist Lieutenant Governor
Hutchinson reported that New Englanders said, "he went up(on) and
down the land, seeking to devour them." ' He found governors, assemrevise the laws. The attorney general and solicitor general were appointed by the general
assembly until 1689, when the Andros administration took over; and John Green, Richard
Bulgar, James Rogers, William Dyre and Edward Richmond are found serving thereafter.
Joseph Jencks Smith, Civil and Military List of Rhode Island 1647-1800 at iii, 1-3 (1900).
53. Acts and Laws of the English Colony of Rhode Island and Providence Plantationsin
New England in Ainerica 15 (Samuel Hall, Newport 1768) (1677).
54. 41 Archives of Maryland 100 (1922).
55. Hammonds, The Attorney General in the American Colonies. 4 (Anglo-American
Legal History Series 1, Number 2, 1939).
56. 3 Osgood, op. cit. supra note 11, at 231.
57. For instance, four commissioners were sent out in 1664-66, to New England, and they
demanded and Plymouth, Connecticut and Rhode Island agreed, that all householders should
take the oath of allegiance; that all men of competent estates be freemen; that all persons
of orthodox belief be admitted to the churches of their choosing and that all laws derogatory to the Crown be expunged. Masachusetts refused to answer the King's command to
send representatives in 1666 to answer for noncompliance.
Morris, op. cit. supra note 8, at 38.
58. 1 Hutchinson, op. cit. supra note 8, at 270.
AMERICAN UNIVERSITY LAW REVIEW
[Vol. 12
blies and law officers reluctant to enforce acts concerning trade and
revenue, and juries unwilling to convict for violation of the revenue laws.
While such matters were generally considered as belonging to governor
and council as the admiralty court, Massachusetts had set up her own
system in which juries were permitted to serve.59
Since prosecutions for violations of law were initiated by private
complaints, Randolph himself undertook to prosecute nine cases for
violation of acts of trade. In eight of these, there was an acquittal.
Though this may have resulted from inadequate grounds for the prosecution or Randolph's own ineptness, it was officially regarded as contempt
for the king's laws on the part of Massachusetts juries. When in the
ninth case, a fine was levied and ordered paid into the colonial and not
the royal treasury, this opinion was reinforced; and when Randolph
himself was required to pay the court costs in the others, it was regarded
as utter contempt for royal authority."0 He urged the Massachusetts
General Court to enforce the acts concerning trade, but they did nothing. 1 He accumulated much evidence concerning non-enforcement in
the several colonies, and scurried back and forth to England with his
findings which, as in many cases of administration, may have been rank
hearsay.
As a result of these inquiries in the New England colonies, in New
York and in Pennsylvania, an order was secured which required the
governor to take an oath before a special commission that he would
enforce the trade laws. 6 2 Secondly, quo warranto proceedings were instituted to annul colonial charters whereby the way was paved for royal
administration and the well-devised and tactlessly executed Dominion
of New England (1685-1688) under Governor Sir Edmund Andros,
which included New York, New Jersey and Pennsylvania.
On April 28, 1680, Anthony Checkley was employed by the Council
as attorney general in Massachusetts to try witchcraft cases.0 3 Twentyone years later, in 1701, he reported to the General Court that he was
ignorant of the law that should govern the King's attorney's, and that
a code of laws should be adopted." Thus, it may well be said, and
documented by instances from the other colonies, that the failure to
59. Wroth, The Massachusetts Vice-Admiralty Court and the Federal Admiralty Jurisdiction, 6 Am. Jour. Leg. Hist. 250, 253, 256-57 (1962).
60. 3 Osgood, op. cit. supra note 11, at 222-23, 234, 239.
61. 1 Hutchinson, op. cit. supra note 8, at 279.
62. 1 Hutchinson, op. cit. supra note 8, at 234.
63. Mass. Hist. Soc., Proceedings 1922-23 3d Series, Ivi:171-172 (1923); Suffolk County
Court files No. 1857, Council Record of 1680.
64. 7 Mass. Prov. Acts & Resolves, Appendix II at 709 (1692-1702).
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appoint capable attorneys general in law enforcement brought about an
inevitable crisis, at a later day, when strict enforcement of laws was
sought and administrative practices were centralized and tightened. 5
The first attorney general was appointed in Pennsylvania in 1683.
His functions were those established for the attorney general in England,
at common lawY6 But Randolph reported that he, David Lloyd, refused
to sue on bonds posted by shipowners as security against violation of
the shipping laws.
Under the Andros regime, the attorney general and advocate general
of New York served in East Jersey, and appeals went to the governor
and council in New York."8 With the Revolution of 1689, Andros, Randolph and Joseph Dudley (predecessor of Andros as governor of Massachusetts), were indicted in Massachusetts for "treason to the liberties"
of the colonies. But by an Order in Council, they were sent to England
for trial. 9 Thereafter, Andros was returned to Virginia as its royal
governor, and Randolph to New York as Surveyor General of His
Majesty's Customs. Upon first arriving in America, Andros was directed
to appoint an attorney general at once, resident in the colonies. This
appointee was James Graham (Gresham).7 ° His duties included the
determination of whether land grants, sought before the governor and
council, were adverse to the royal interest; to advise the governor on
matters of state and policy; and to have charge of the King's litigation. 71
65. From 1691-1728, the Massachusetts
the advice and consent of his council of
The General Court contested this, as a
Attorney General Northey of England.
Royal Instructions to British Colonial
In 1777, the General Court again took
Governor nominated the attorney general, with
assistants, under direction of the Privy Council.
violation of its charter, and were sustained by
Governors (1670-1776) 389 (Labaree ed. 1935).
over nomination of the attorney general. Mass.
Hist. Soc., Proceedings 1895-1896 2d Series, 285-88 (1896).
66. Consult People v. Miner, 2 Lane 396-99 (N.Y. 1868) and People v. Kraemer,
68 N.Y.S. 383, 386 (1900) for a general description of his functions in England;
Bellot, The Origin of the Attorney-General, 28 L. Quar. Rev. 400, 414 (1909); 207 Hansard,
Parl. Deb. (Commons) No. 75, cols. 427-34; 7 Holdsworth, History of English Law, 457.
67. Calendar of State Papers (American and West Indies Col. Series 1697-1698) 183; id.,
(1699), at 382-83.
68. Consult Burlington Court Book of East New Jersey, 1680-1709 (Reed and Miller ed.)
5 Am. Legal. Records (1944), Am. Hist. Assn.
69. The indictment was by the General Court. Andros was indicted for treason and the
death penalty demanded. Before trial, and after bail had been refused, the Order in Council was received.
I Hutchinson, op. cit. supra note 8, at 4.
The theory that he was an officer of Massachusetts, and only incidentally of the Crown,
appears implicit in the claim he was guilty of treason to the liberties of the Colony.
70. Op. cit. supra note 65, at 388-89, n.37. Graham accompanied Andros to Massachusetts,
as attorney general for the Confederation. I Hutchinson, op. cit. supra note 8, at 301 n;
Palfrey, op. cit. supra note 14, at 553-54.
71. Hammonds, op. cit. supra note 55, at 9.
AMERICAN UNIVERSITY LAW REVIEW
[Vol. 12
Reporting to the Council of Trade and Plantations in 1699, the Governor complained he did not have adequate legal advice; that lame indictments were drawn and hence seizures in admiralty were lost. 2 Two
years later, he reported "ten pieces of eight" would bribe the attorney
general at any time. 73 In 1701, an advocate general in admiralty was
appointed. 4
In 1767, Jeremy Gridley was attorney general in Massachusetts,
assisted by Jonathan Sewall as special attorney general. There was some
conflict over the arrangement, political perhaps, which led to the creation
of the title of Solicitor General for Sewall.
Throughout the larger colonies, as trade increased and population
grew, the attorneys general were assisted by deputies who primarily
concerned themselves with criminal prosecutions in counties without a
King's attorney.7 5
In 1700, Chief Justice Atwood from New York visited Boston to
survey the judicial administration there. He was aghast at both the
law dispensed and the procedures followed. 7 The general investigation
made by the Board of Trade showed Connecticut and New Haven to
have poor legal administration, as well. 77 This reflected upon the incapacity of law officers, attorneys general, judges and the community
attitudes.
The Navigation Act of 1696, having provided for vice admiralty
courts, the post of advocate-general was much sought for, since the
forfeitures under the acts brought fees to the office. The most famous
figure to occupy such a post, no doubt, was James Otis, Jr., but his
fame came when he resigned to urge the illegality of Writs of Assistance
in Paxton's Case (1761) alleging that acts of Parliament against the
English constitution were void, and that no power lay to issue such a
writ. The court deferred opinion until it could send to England for legal
advice which maintained the validity of such writs. In the stirring arguments of the trial, John Adams stated that "independence is born."7 8
72. Great Britain Public Record Office, Calendar of State Papers, Colonial Series, [American 2nd West Indies 1699] 210-11, n.41 (Sainsbury ed. 1860).
73. Id. [American and West Indies 1701] at 15.
74. Required to give "particular regard to pirates and illegal traders", Sampson Sheldon
Brougham was commissioned advocate general in Massachusetts, Rhode Island, Connecticut, New Hampshire and New Jersey. 2 Acts of the Privy Council of England, Colonial
Series [1680-1720] 363 (Grant and Monroe ed. 1908).
75. Cummings & McFarland, Federal Justice 14 (1937), citing 1 Del. Laws 1797 at 57;
2 N.Y. Col. Laws 1894 at 406.
76. 4 Documents Relative to the Colonial History of New York 929 (O'Callaghan ed.
1853).
77. 5 id. at 31.
78. Haines, The American Doctrine of Judicial Supremacy 60 (2d ed. 1932).
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LAW OFFICERS
John Adams earned fame when he defended defendants charged with
murder, arising out of the slaying of a naval officer who was trying to
impress them.7 9
In 1770, Samuel Quincy, as solicitor general, prosecuted the soldiers
involved in the so-called Boston Massacre for murder.8" He was assisted
by Robert Treat Paine. 8 The soldiers were defended by John Adams
and Josiah Quincy, Jr.82 The Crown did not shield its officers from trial
before the civil court; its solicitor general prosecuted them. But it was
a patriot who was primarily instrumental in the defense. Here is one
of the outstanding examples of justice under law, in an hostile atmosphere, extant in Anglo-American law.
When, because of agitation and unrest, the Governor of Massachusetts
was instructed in 1770 to change the meeting place of the General Court
from Boston to Cambridge, both the attorney general and his solicitor
general gave opinions to the General Court that this was within the
power of the Privy Council and the Governor. The General Court urged
Lt. Governor Hutchinson to disregard this opinion, stating officially:
The opinion of the attorney and solicitor general has very little weight
with this house in any case, any further than the reasons they expressly
give us are convincing. This province has suffered so much by the unjust,
groundless and illegal opinions of these officers of the Crown, that our
veneration or reverence for their opinions has much abated. We utterly
deny that the attorney and solicitor general have any authority or jurisdiction over us, any right to decide questions
in controversy between the
83
several branches of the legislature here.
They went on to say, that the people only had the right to "appeal
to heaven."
In Pennsylvania, the court system excluded the governor and council
as a court, unless made a court of appeal by law. 4 But it was given
power to punish maladministration and malfeasance by officials, just
79. For a good presentation, consult Bowen, John Adams and the American Revolution
331 (1950).
80. Son of Col. Josiah Quincy, brother of Josiah Quincy, Jr., who adhered to the royal
cause and left Boston in 1776 despite the opposite course of his father and brother. The
case: Regina v. William Wemms and Seven Others, 10 Am. St. Trials 415 (1770), which
gives the record. A readable account is Bowen, op. cit. supra note 79, at 342-405.
81. Paine's career included service in the Massachusetts General Court (1773-1774), the
Provincial Congress (1774-1775), Continental Congress (1774-1778); signer of the Declaration of Independence; Speaker of the Massachusetts House of Representatives (1777);
member of the Council (1779), attorney general of the state (1777-1790), and judge of the
Supreme Court of the state (1790-1804).
82. Samuel Quincy's younger brother, who previously had opposed him in similar causes;
a patriot who died in 1775 after a trip to England.
83. 3 Hutchinson, op. cit. supra note 8, at 389-95, quotes the documents in exchange between himself as lieutenant governor and the General Court.
84. Consult Stimson, American Statute Law § 202 (1886).
AMERICAN UNIVERSITY LAW REVIEW
[Vol. 12
as Star Chamber did in England.8" In 1663, for the purpose of trying
cases against counterfeiters, John White was appointed attorney general.86 Samuel Hersent was appointed in 1685. In 1696, John Moore was7
appointed advocate general, and later was appointed attorney general.1
Thereafter, the office appears to have been regularly filled."8 The attorney general was himself a member of the governor's council, and thus
linked to the political administration."
Delaware was settled by the Swedes, taken by the Dutch, and seized
by the English. The territory was conveyed to William Penn in 1682,
but Lord Calvert claimed it as part of his Maryland grant. After 1704,
Penn granted the area a separate legislature which was under the
governor and council of Pennsylvania; but in 1710 Delaware was
accorded its own council. Thereafter, it had its own attorney general,
and a deputy attorney general as well. 0°
In Virginia, the governor and his council were often in conflict. Collectively, they sat as a Court of Quarter Sessions, but in early years
there was no attorney general to advise them. They could defer decisions until opinions could be received from England. On October 12,
1643, Richard Lee was appointed attorney general. The procedure for
appointment varied, but it would seem that the governor usually made
the appointment, subject to confirmation sometimes by the council,
sometimes to the House of Burgesses, and othertimes to the Crown. 1
In 1703, the attorney general was required to live at the capital, Williamsburg. He was allowed a salary of 100 pounds annually, which later
was reduced to 70 pounds. His duties included the prosecution of
criminals before the general courts and circuits in the colony and
advice to such courts when needed. 2 As early as 1665, a prosecuting
attorney had been appointed in Accomack County, and by proclamation
of Governor Spottswood in 1711, they were appointed in every county.
Up to this time, criminal prosecutions were instituted by informers,
but the composition of criminal offenses by them had become a racket;
hence, the need for an official law officer. Such prosecutors were regarded
85. 1 Pennsylvania Colonial Records 20, 79, 95, 96 (1852).
86. Lloyd, The Early Courts of Pennsylvania in the 17th Century 113 (1910); 1 Mitutes of the Provincial Council of Pennsylvania (1683-1700) 87, 94.
87. Lloyd, id. at 113.
88. Consult generally Lawrence, Courts of Pennsylvania in the 17th Century, 1 Pa. B.A.
Rep. 353 (1895); Rutherford, Pennsylvania's Attorney General, 14 Pa. BA.Q. 54-62 (1942).
89. 3 Minutes of the Provincial Council of Pennsylvania [1717-1736] 113, 237 (1851).
90. 1 Laws of the State of Delaware [1700-1797] 57, 472 (1797).
91. Chitwood, Justice in Colonial Virginia, Johns Hopkins Press, Hist. Ser. XXIII, no.
iii-viii, 518 (1905).
92. Id. at 518, n. 106.
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LAW OFFICERS
as deputy attorneys general, and were required to see that the Commonwealth received the fines collected. 3
The Carolinas had a stormy colonial history. In 1693, the governor
was authorized by the proprietors to appoint an attorney general, and
in 1694, the proprietors appointed Ferdinando Gorges, but there is no
evidence he ever served as such.9" In 1696, Jonathan Amory was attorney general. 91 In 1698, a remarkable legal figure, Nicholas Trott, received
the appointment, set up the court system and then became chief justice.
In 1708, the chief justice received 100 pounds a year. Colonel Moore
then received sixty pounds a year as attorney general, and forty pounds
per year as judge of the admiralty court.9 6 In 1719, in an unprecedented
revolutionary proceeding, this same James Moore was elected governor;
and despite this unorthodox beginning, the Crown recognized him as
such. In 1708, the lord proprietors commissioned William Saunders to be
both attorney general and advocate general, under a broad statement of
the traditional duties of both. In case the attorney general could not
reach some courts on his circuit conveniently, he was authorized to
appoint a deputy to prepare indictments in his stead.97 In addition to
the fixed stipend, it would appear that fees also were allowed. 98 The
first instance of settling an annual salary upon the attorney general in
lieu of all fees appears to be the South Carolina constitution of 1776,
wherein the attorney general was to be chosen jointly by the assembly
and the council and commissioned by the governor, at an annual salary
of two thousand one hundred pounds, in lieu of all charges upon
criminal prosecutions.9 9
Before the Declaration of Independence, the Privy Council had
determined whether colonial laws were in conflict with the laws of
England, as provided in the charter, and construed the charter powers
themselves. Its judicial committee had dealt with appeals from the
courts and council of the overseas colonies. Under the Continental
Congress and the Confederation such functions were discharged, if at
all, by its committees.
When the Constitution was established as the supreme law of the
land (art. VI), the making of treaties and appointment of officials by
the President was subject to the Senate approval. In these respects, the
93. Id. at 517-19; 518, n.106.
94. McCready, History of South Carolina Under Proprietary Government 259 (1897).
95. Supra note 72 (American and West Indies 17021 at 205.
96. Oldmixon, The History of Carolina (1708), reprinted in 2 Historical Collections of
South Carolina 390 (1836).
97. Act of July 29, 1769, S.C. Pub. Laws 1790 ch. 25 § 273.
98. 3 North Carolina Records [1713-17281 166 (1885).
99. 2 Poore, Federal and State Constitutions 1619, n.31 (1897).
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Senate, whose members were appointed by states, was a counterpart
of the governors' councils, or the Privy Council itself.
In considering the other Privy Council-colonial relationships, the
Continental Congress itself assumed some of its functions. For instance,
it created committees to adjudicate prize cases and admiralty matters;
and finally set up the Court of Appeals in Cases of Capture (17801787).1 ee When the Constitution became effective in 1789, the original
jurisdiction of the Supreme Court in respect to cases affecting ambassadors, other public ministers and consuls, and those in which a state
shall be a party, became that of the Privy Council rather than devolving
from any other historic parallel. Even as the Privy Council was to
disapprove colonial laws contrary to the laws of England, the supremacy
clause of the Constitution vested the corresponding power to determine
whether legislation is within the powers conferred or reserved by state
and federal constitutions. This power has no other judicial antecedent
than those inhering to the Privy Council as a revisory body and court
of appeal.
The United States Constitution does not provide for an attorney
general, nor does it define his powers. 1' Neither does the Constitution
by its terms vest in the Supreme Court the power to use the prerogative
writs in order to supervise governmental administration." 2 The inferior
federal courts and the attorney general of the United States are creatures
of Congress. The attorney general "of the United States" is less than
that; like the royal attorneys general of the colonies, he is the attorney
for the President, for the most part; 10 3 and his adviser in matters legal,
political and executive."0 4 He has disclaimed any duty to give Congress
legal advice. 05 Until recent administrative reorganization, he was not
100. Hogan, The Court of Appeals in Cases of Capture, 1780 to 1787, 33 Ore. L. Rev.
95 (1954).
101. The issue was raised early, in Heyburn's Case, 2 U.S. (2 Dall.) 409 (1792), where
the attorney general sought mandamus to compel the circuit court to act on pension
claims under statute. The Justices of the Supreme Court were divided as to applicability
of the common law powers of the attorney general and of the court.
102. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
103. The Judiciary Act of 1789 made him the legal adviser of the President, and of the
heads of the executive departments when necessary to the duties of -their departments.
Consult 5 U.S.C. § 291, 303-304 (1958).
104. McGuire, Place of the Official Lawyers in the United States Government, 33 Case
& Com. 67, 69 (1927).
105. 17 Ops. A.G. 357 (1890); 18 Ops. A.G. 218 (1892). The declaration of Attorney
General Wirt to this effect (1820) has remained the active policy. Creation of solicitors in
the various departments, concerned with their special functions, commenced early. Cummings & McFarland, op. cit. supra note 75, at 81-92.
Caleb Cushing's attempt as Attorney General to systematize relationships was not adopted:
H.R. Exec. Doc. XI, No. 95 and S. Exec. Doc. VIII, No. 55, 33d Cong,, 1st Sess. (1854).
LAW OFFICERS
even in control of legal matters in the 52 or more agencies in the Executive Department, which set up their own law departments. 1 6 Except within limited situations defined by statute, he is not vested with the power
of the People, under which he can bring before the courts the agencies'
excesses of power or jurisdiction; in fact, when they are assailed, he
0 7
The
and the Solicitor General are bound to maintain their authority."
attempt to place legal machinery in the hands of the federal government, to inhibit the excesses of organized capital by antitrust acts,
or those of labor by a Taft-Hartley Act, have produced bitter resistance.
Labor prefers federal jurisdiction because remedies against it, such as
the old common-law writs, require congressional authority, and such
jurisdiction has been successfully limited in the political arena. But,
under the Supremacy Clause of the Federal Constitution, every judge
is charged with the duty and vested with the power to apply the Constitution and federal laws thereunder. (art. VI.)
When Andros and Randolph were indicted for "treason to the liberties" of the colonies by the Massachusetts General Court, they were
whisked away to England by royal command. In re Neagle, 135 U.S. 1
(1890), established the rule that the allegedly official conduct of federal
officers is to be determined in federal courts, which whisked Neagle,
charged with murder, from the custody of state officers into federal immunity. The officers and men involved in the so-called Boston Massacre
were tried in the local court. Neagle was not.'
Review of official action is curtailed by statutes restricting judicial
review. Administrative government in the hands of determined partisans
insulated from legal control, and even from legislative control, is indeed,
as Lord Hewart said, The New Despotism. It differs little from the
problem of control presented two centuries ago in the governor-council
relationships. To it has been added the tool of publicly financed propaganda, psychological science, directed against the policies of the Executive and the Congress itself; and the Executive's quarrel with the Supreme
Court.0 9
The Department of Justice was set up under President Grant, Act of June 22, 1870, §§ 118, 16 Stat. 162. The attorney general's duties have grown, statute by statute.
106. Some betterments have been effected. 26 U.S.C. §§ 3930-3932; 5 U.S.C. § 306; 28
U.S.C. § 503, 508 (1958). But they have not implemented all the recommendations of the
Commission on Organization of the Executive Branch of the Government, Legal Services
and Procedure Task Force Report (1955) and, A Report io Congress (1955).
107. Anticipatory opinions re administration are not given. Actual nonjusticiable matters
or controversies must be involved before a department, bureau or officers. Consult opinions listed, 5 U.S.C.A. § 304, n. 5 (1927).
108. Consult In re Neagle, 39 Fed. 833, 838 (1889), 135 US. 1 (1890); Buchanan, David
S. Terry of California ch. xiii (1956).
109. Mr. Justice Robert H. Jackson has stated that today "not one of the basic power
AMERICAN UNIVERSITY LAW REVIEW
[Vol. 12
Out of the colonial experience, there grew an opposite concept of the
attorney general who, by the substitution of the People for the Crown,
becomes their independent attorney general, the watchful guardian of
the public right independent of the Executive, supported by constitutional jurisdiction in many state courts to supervise official action and
public administration. But, if any group of determined men should
attempt to set up dictatorship in the federal structure, *there are no
processes of law to say nay to such usurpations. No federal attorney
general has yet arisen to combat official abuse of power before the
courts. He has supported it where the Executive has supported it.
Violations of the Constitution must therefore be urged by the private
citizen, unaided by officialdom, over the jurisdictional hurdles placed
in his way and the vacant abyss of want of jurisdiction, where Congregs
has not vested it in some federal court. This supports a fatal tendency
to destroy a self-reliant federal system by centralized encroachments,
immune from judicial scrutiny.
Under state constitutions, disregarding some which have organized the
attorney-general function in the federal image, attorneys general are
made independent constitutional officers."" Likewise, the courts, as at
common law, generally are constitutionally vested with power, not
dependent upon the legislature, to issue all of the prerogative writs
applicable to scrutiny and control of governmental administration; to
conflicts which precipitated the Roosevelt struggle against the judiciary has been eliminated
or settled, and the old conflict between the branches of government remains, ready to
break out again whenever the provocation becomes sufficient." Jackson, The Suprene
Court in the American System of Government 9 (1955).
110. The only states establishing the office by statute appear to be: Connecticut: Gen.
Stat. § 148 (1930); Indiana: Burns' Ann. Stat. § 44-1920 (1933); Oregon: Comp. Laws
Ann. Tit. 6, § 90-401 (1940); Vermont: Pub. Laws § 409 (1933).
Although some state constitutions only create the office, the powers are held to be
those existing at common law: Pierce v. Superior Court, 1 Cal. 2d 759, 37 P.2d 460 (1934) ;
Van Riper v. Jenkins, 140 N.J. Eq. 99, 45 A.2d 844 (1946); Comm. v. Margrotti, 325
Pa. 17, 188 Ati. 524 (1936).
Some limit the powers to those established by statute: Walker v. Georgia Ry. & P. Co.,
146 Ga. 655, 92 S.E. 57 (1917); State v. Milwaukee Elect. Ry. & Light Co., 136 Wis. 179,
116 N.W. 900 (1908); People v. Hopkins, 47 N.Y.S.2d 222 (1944).
Where his powers are to be as prescribed by law, according to the Constitution,
the common law powers so conferred cannot be restricted by statute: Fergus v. Russel, 270
Ill. 304, 110 N.E. 130 (1915).
In sixteen states, -the specification of all duties is left to the legislature, apart from those
specifically given in the Constitution or inferred from the nature of the office at common
law.
In most states, the attorney general is elected. But in New Hampshire, he still is
appointed by governor and council: N.H. Rev. Laws ch. 1, § 93; ch. 15; ch. 16, § 95
(1942); and in New Jersey, Pennsylvania and Massachusetts by the governor with the
consent of the senate: N.J. Const. art. VII, § 2(7) ; Mass. Const. art. II, IX; Pa. Const.
art. IV, § 8.
LAW OFFICERS
the end that our agents shall not exceed nor abuse the powers of attorney
given them by statutes and constitutions."1
Today, we have a recrudescence of mediaevalism, in which our governments, particularly the national, have reversed the role of the legislative
body and the executive in expanding areas of concern. Instead of
execution of the plans and policies of the Congress with the Executive
holding the veto power, we find that the plans and policies are those
of the Executive, leaving the legislative function one of acquiescence
or consent. The multiplication of administrative agencies and their
insulation from either legislative or judicial control in actual operation
pose again the same problems of power and responsibility in administration that ministerial government embraced in the 17th and 18th
Centuries.
The trial of constitutional issues as they are presented in the course
of individual lawsuits, by individuals, is not an effective method to curb
excesses of power. For instance, the Internal Revenue Service has
often refused to follow the law as declared in one circuit court of appeal
in any other circuit. In the federal system, there is no officer charged
with legal policing of administration to keep it within bounds. The fight
111. Examples are numerous of attorney general action:
May maintain an action to purge the Great Register of names of persons fraudulently
registered: Pierce v. Superior Court, 1 Cal. 2d 759, 37 P.2d 460 (1934), 96 A.L.R. 1020
(1935).
May enforce the terms of a charitable trust: Stowell v. Prentiss, 323 Ill.
309, 154 N.E.
120 (1926), 50 A.L.R. 584 (1927).
May seek forfeiture of public office for constitutional violation against acceptance of
free passes: Coco v. Oden, 143 La. 718, 79 So. 287 (1918), 8 A.L.R. 679 (1920).
May sue to enjoin unlicensed person from practicing medicine: State ex rel. La Prade v.
Smith, 43 Ariz. 131, 29 P.2d 718 (1934).
Forfeiture of office of public officials for malfeasance or misconduct: La. Const. art.
III, VII, § 31; Iowa Code, §§ 64.3, 666.4 (1950); Okla. Stats. ch. 51, §§ 33, 94 (1951);
Atty. Gen. v. Tufts, 239 Mass. 458 (1921); Atty. Gen. v. Flynn, 331 Mass. 413 (1954).
In Nebraska, the attorney general is to "defend the legislature": Neb. Rev. Stats. ch. 84,
§ 209 (1943, reissue 1948).
May investigate the conduct of public officers: Okla. Stats. ch. 51, § 100 (1951).
May institute quo warranto proceedings for usurpation of office or privileges: Okla.
Stats. ch. 12, § 1533, ch. 74, § 18c (1951); Idaho Code § 6-602 (1947); Cal. Code Civ.
Proc. § 803 (1951).
May inquire into public peace, safety or justice at request of the governor: N.Y. Exec.
Law § 63 (1962).
Is to report misappropriation of public funds or misuse of public property: Idaho Code
9 67-2702 (1947).
May bring mandamus to compel an election as required by law: Yett v. Cook, 115 Tex.
205, 281 S.NV. 837 (1926).
May sue to abate public nuisances: Withee v. Lane & Libby Fisheries Co., 120 Me. 121,
113 At. 22 (1921).
May sue to test the constitutionality of a statute: Wilentz v. Hendricksen, 133 N.J.Eq.
447, 33 A.2d 366 (1943).
AMERICAN UNIVERSITY LAW REVIEW
over the adoption of the Administrative Procedure Act demonstrated
the built-in resistance to legal scrutiny of the executive processes.
A strange contradiction of our time is the fetish made of the Bill of
Rights, rights of the individual against government in retail, while a
wholesale revolution in the broad constitutional relationships rages about
our ears. Legal history tells us that no usurpation of authority is little
or unimportant. In complexes of administration, the individual citizen
ordinarily does not have the money, time or knowledge to legally resist.
He is forced to the mediaeval device of group representation if he is to
prevail at all.
Conceding that no attorney general, nor a court from which he seeks
the prerogative writs, can force compliance in a crisis without the executive power, the legal processes have demonstrated that their moral force
is sufficient in most instances to prevent the hole in the dike from becoming a breach in the walls.
Legal history urges again the importance of the attorney general to the
liberties of the people, and that he should have full power, like the early
attorneys general of Rhode Island, to bring to "tryall the officers of the
State at the General Assemblies and to impleade in the full power and
authority of the free people of this State, their prerogatives and liberties;" and because they must, in enforcing the powers of attorney under
sayed atwhich all officials act, be opposed by powerful forces, "let the
11 2
torney be faithfully ingaged and authorized and supported.
Above all, history says, let him be independent, the servant of the
Law.
112. Supra note 51.