methods of proceedings are alike, and that there is as great a variety of opinion concerning 
the matter that has been here briefly hinted at. 73 
In 1735 John Randolph of Virginia, in discussing the controversy over the 
equity jurisdiction in New York, observed that the New York lawyers blindly 
followed a common error in their assumption that acts of Parliament were 
in force in the colony. The common law should be the only rule; if acts of 
Parliament were allowed to be pleaded, uncertainty would prevail as to which 
were in force. Those declaratory of the common law served rather as evidences 
of the law, than as statutes of binding quality. 74 
In none of the colonies where the question of the applicability of English 
statutes was discussed does there seem to have been much attention leveled 
at the royal charters as expressions of policy. Irrespective of the circumstance 
that a particular plantation had once been chartered or still cherished such an 
instrument of government, it was arguable that the standard of the law of 
England to which colonial enactment must conform or must not be repugnant 
implied at least the opportunity of judicious selection in the statute book by 
the chartered authority. An argument from charter provisions was made by 
Daniel Dulany of Maryland in 1728, but he settled upon the "Rights of Englishmen" 
paragraph of the patent for his disquisition, obviously because the lawmaking 
power was vested by the charter in Lord Baltimore. 75 In Rhode Island 
we have seen no more than intimations of reliance upon the charter. In a 1729 
answer filed to an appeal to the Governor and Council from a probate order 
of the Newport town council it was averred that only such acts of Parliament 
were in force as specifically extended to the plantations or by some law or 
custom were introduced as being consistent with the public good and constitution 
of the colony. 76 Some years later it was also claimed that the courts 
had admitted such statutes "as relate to the common law." 7T The reference 
to custom or judicial practice, we think, may have been made with the rights 
of lawmaking granted by charter in mind. 78 
The Rhode Islanders seem to have had an exaggerated idea as to their constitutional 
(viz., charter) privileges, for in a 1741 cause the extension to the 
plantations of 5 George 11, c. 7, wherein they were specially mentioned was 
contested by counsel on the ground of inapplicability; 79 the court prudently 
73 MS Observations, 26. 
74 John Randolph to Capt. Pearse, May 20, 
1735 (Wm. Smith MSS). 
73 The Right of the Inhabitants of Maryland 
to the Benefit of the English Laws, in Sioussat, 
op. cit., 98-99. For the clause relied upon see 
3 Thorpe, Federal and State Constitutions, 1681. 
7<i Ms Petitions to R.I. General Assembly, 
1728-33, #51- 
■>Übid., 1748-50, #35- 
78 On this mode o£ thought see 1 Winthrop, 
History of New England (ed. by J. Savage, 
1853). 388-89. 
79 In Peckham v. Allen the Superior Court of 
Judicature upon argument of a special verdict 
held that the act was in force in the colony. In 
his reasons of appeal appellant alleged that the 
act "was against law and equity and destruc-