reported to the Council. The same machinery was employed for rejection, 
commonly denominated "disallowance." Where disallowed, the acts became 
inoperative upon notice to the enacting colony of disallowance —until such 
notice, the acts continued in full force. 1 This was the common course; but in 
a few instances acts were declared null and void ab initio in the routine legislative 
review process. When this was done, all action taken under the provincial 
statute was totally lacking in validity. The distinction is the one familiar to 
lawyers, between voidable and void. 2 
The second type of review was that in the course of a judicial proceeding. 
This occurred, as already remarked, in the exercise of the appellate function 
by the Privy Council, and since no mere disallowance was possible under such 
circumstances, an unfavorable determination was inevitably a declaration of 
nullity. It is further to be noticed that circa 1760 there prevailed among the 
law officers of the crown the conviction that the courts at Westminster had 
repeatedly declared void certain colonial acts invoked in English litigation. 
Proofs of this practice are not satisfactory, but considering the then state of 
law reporting, the opinion of the lawyers cannot lightly be tossed aside. In 
any event, it suggests we have to do with a matter of doctrine the intendment 
of which is far reaching—as well for the constitutional ideas of England as 
for the colonies. 
Having marked the circumstances under which a declaration of nullity 
could be made, we shall consider next the legal basis for the exercise of this 
power. So far as concerns Privy Council proceedings, the declaration by a 
judicial process depended immediately upon the charter or the terms of the 
governor's commission; the declaration in course of legislative review rested 
upon act of Parliament. This difference in source is important, since on its 
face the action in the first case is related to the prerogative, and in the second 
case to the supreme lawmaking power. 
1 See 1 Chalmers, Opinions, 295. Cf. Labaree, 
Royal Government in America (1930), 224- 
25- 
2 In point of sheer bulk the process of legislative 
review completely overshadowed the 
Council's judicial business; moreover, the 
Board of Trade in 1760 termed conciliar judicial 
power of "less importance and inferior 
dignity" to the legislative (5 Stat, at Large Pa., 
699). It is consequently surprising that modern 
writers who have studied the "disallowance" 
should have disregarded the declarations of 
nullity in the legislative review process, particularly 
since the American states after the 
Revolution themselves experimented with special 
bodies to determine the validity of statutes. 
Back of these superficial distinctions, 
See Russell, The Review of American Colonial 
Legislation by the King in Council (1915); 
C. M. Andrews, The Royal Disallowance of 
Colonial Laws, 24 Amer. Aritiq. Soc. Proc. 
(n.s.), 342; McGovney, The British Privy 
Council's Power to Restrain the Legislatures 
of Colonial America: Power to Disallow Statutes, 
Power to Veto, 94 U. of Pa. L.R., 59. 
Some writers have failed even to distinguish 
between a "disallowance" and a "declaration 
of nullity" upon judicial review; see Coxe, 
Essay on Judicial Power and Unconstitutional 
Legislation (1893), 207-13; Russell, op. cit., 
227; Aumann, The Doctrine of Judicial Review, 
20 Kentucky Law Journal, 277-78, note.