Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/468

 454 ///. THE COLONIAL PERIOD in that particular, which we are when we make the law, that it might not be determined to be contrary to the law of Eng- land." 1 The opinions of the English lawyers of this period, so far as I am able to discover them, are neither definite nor com- plete. In a report to the Board of Trade, Attorney General Yorke and Solicitor General Talbot upheld the colony's position regarding by-laws. They affirmed that the assem- bly of the colony had the right by their charter to make laws which affected property, on condition that such laws were not contrary to the law of England; but, although it seems probable that they intended " law of England " to cover the whole law, they did not make it clear what they meant by this term.^ Yet these same lawyers in a later judgment declared that in one particular case, the barring of an heir to entailed lands lying in the plantation by a process of fine and recov- ery in England, the common law did not extend to the planta- tions, unless it had been enacted in the plantation where the entailed lands lay.^ The Board itself supported the colony against adverse criticism ^ when it stated that according to the charter the laws were not repealable by the Crown, but were valid without royal confirmation unless repugnant to the law of England.^ The most definite expression of opinion, however, was adverse to the view which the colony took. Mr. West, in a judgment rendered regarding admiralty juris- diction in the plantations, took the ground that wherever an Englishman went there he carried as much of law and liberty with him as the nature of things allowed; that, in conse- ' Talcott Papers, I, pp. 149-150. 'B. T. Papers, Proprieties, R. 130. Aug. 1, 1730. ' Talcott Papers, I, p. 238. II, Appendix. " Instructions to Agent," p. 493. Opinion. " " Copy of a Representation of the Board of Trade to the House of Lords" Jan. 23, 1733-34. British Museum, 8223 e-15. Mentioned by Wilks, Talcott Papers, I, p. 294. In 1760 the Board took a different view " supporting his Majesty's right to examine into every provincial law and to give or to withhold his negative upon any good reasons which may be suggested to him by the wisdom of his Privy Council or by his own royal prudence and discretion." B. T. Papers, Proprieties, Entry Book, I, flF. 299-307; Cf. opinion of House of Lords, 1734, Tal- cott Papers, I, p. 297.
 * Ibid. I, p. 152, Winthrop's 8th Complaint. II, pp. 75-76, Parris'