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)
BY LATE GOVERNOR THOMAS POWNALL
THE 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
