Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/464

 450 ///. THE COLONIAL PERIOD Trade, the good offices of that Board might be obtained.* This was an important step, for by the report of the com- mittee of the Council the matter had been referred to the Board.^ The strongest argument against the law was that it was contrary to the law of England, and in the discussion which followed the colony exerted all its strength to minimize the force of this argument. The question is an important one in itself, but the value of the discussion lies in the expression of opinion on the part of the English and the colonial authorities regarding the interpretation and strict construc- tion of the phrase " contrary to the law of England." There were three views held regarding the English law in the col- onies, as to how far it was binding there, and to what extent the colonial corporations had been invested by their charters with law-making powers. The first of these opinions was held by all those who were opposed to the colonial preroga- tives, such as Palmes, Hallam, Gershom Bulkeley, in his " Will and Doom," Winthrop the appellant, in his " Com- plaint " and " Memorial," Dudley and others. According to this view the colonies were erected as corporations within the kingdom of England; they held by and were subject to the laws of that kingdom, and their legislative power ex- tended to the making of by-laws and ordinances only for their own good government, provided the same were not contrary to the law of England.^ From this point of view ^Ibid., I, pp. 200-201. B. T. Papers, Proprieties, R. 108. ' Talcott Papers, I, p. 393. Dudley in his letter to the Board of Trade expresses this view. " On the part of the Crown it would be pro- vided [in case a union of colonies was affected] that the laws of Eng- land, common and statute, which have hitherto always been or ought to have been the laws of all those provinces, should be so declared and the government there directed to present to the King not Magna Charta or chapters of capital laws, but such by-laws as the several provinces In their settlements require, which are not provided for by the common and statute law of England." B. T. Papers, New England, vol. 7, F. 13. For Dudley's motives see Palfrey IV, pp. 367-368. Bulkeley said in his " Will and Doom," " We think that the colony of Connecticut is de Jure (we wish we could say de facto) as much subject to the Crown of Eng- land as London or Oxford." Again, " forgetting . . . that their Courts are but inferior Courts and their laws not laws properly so called or parcel of the Laws of England but only By-Laws, 1. e. the Local, private and particular orders of a corporation."
 * Talcott Papers, T, pp. 174, 249.