Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/460

 446 ///. THE COLONIAL PERIOD case solely upon the question of the validity or invalidity of the law, but he repeated most of the charges, which were already familiar to the Council and its committee, and thereby, as Mr. Parris said, " very much assisted his case." ^ The legal aspects of the trial have attracted but a small amount of attention from historians, for the incidents were neither dramatic nor politically exciting, yet there were in- volved in the case principles of great moment to the colonists, questions, the solution of which was to affect the future re- lations between them and the home government. The effect of the vacating of the law shows at once that the Privy Council acted without a reasonable understanding of the matter at issue. It based its opinion upon the literal interpretation of the charter from its own point of view, and was entirely without an honest appreciation of the equity in the case.^ Two conditions, defensible in themselves, had come into conflict. For the moment the customary law of one country, arising from one set of historical circumstances, was to be enforced in another country, the agrarian and economic life of which had brought into existence a custom- ary law very different. The common law of England and the common law of the colony did not agree. The latter did not represent the defiant will of a body of law-makers, it represented a principle of land-distribution which the ex- perience of the colony had shown to be best adapted to its own prosperity and continued existence. This becomes clearer when we note what would have been the economic effects of voiding the intestate law. The first result would have been a general unsettling of titles to lands left intestate or alienated after intestate settle- ment. This was due to the fact that a large majority of the people consisted of farmers and agriculturists, possessing » Talcott Papers, II, p. 77. •Govr. Talcott recognized the unfairness of the decision from the standpoint of equity, when he said in a letter to the Board of Trade Nov. 4, 1731, "Your Lordships will be best informed of the reason, necessity and usefulness of our laws by considering the state and cir- cumstances of our country so many ways diflFering from that of Eng- land." B. T. Papers, Proprieties, S. 36. Talcott Papers, I, p. 250; II, p. 225. It is worthy of notice that Winthrop's own counsel declared against the judgment of the Council afterwards. Talcott Papers, II, p. 72.