all the plantations, 119 and it was against reason, as well as law, that a daughter 
should be co-heir with an only son. Therefore, it was urged that the Connecticut 
law governing intestacy was null and void as contrary to the laws of the 
realm, unreasonable, and against the tenor of the charter. 120 
socage, and socage was not gavelkind (Plucknett, 
Book Review, 3 New England Quarterly, 
575). There is some support for this view that 
gavelkind was a separate tenure (see Robinson 
on Gavelkind [sth ed.], 6-7), but there is also 
evidence that gavelkind was regarded as a 
species of socage tenure (see Launder v. 
Brooks [Cro. Car. 561]; Wiseman v. Cotten [1 
Sid. 125, 127]). More telling are the cases that 
a custom could not be created by patent (see 
Robinson on Gavelkind, 55). See also the discussions 
in Cheyney, The Manor of East 
Greenwich, 9 AHR 29-35; Carr, Our Manor 
of East Greenwich, 29 LQR 349; Barnes, 
Land Tenure in English Colonial Charters of 
the Seventeenth Century, in Essays in Colonial 
History Presented to Charles McLean Andrews 
(1931), 4; Rider, The Meaning of the Phrase 
"The Manor of East Greenwich in our County 
of Kent" in the Charter of Rhode Island in 
1663 (n.d.), passim; 2 Andrews, Colonial 
Period, 139; Haskins, Gavelkind and the 
Charter of Massachusetts Bay, 34 Trans. Col. 
Soc. Mass. 483. 
119 6 Winthrop Papers, 488. To estimate the 
validity of this contention it is desirable to 
refer the reader to the discussion in Chapter 
VIII of the doctrines concerning the extension 
of the laws of England to the colonies. Note 
also the fact that in a 1722 Privy Council 
Memorandum (2 Peere Williams, 75) it was 
said to have been established upon appeal to 
the King in Council from the plantations that 
in a new and uninhabited country settled by 
English subjects, the laws of England governed, 
the settling subjects carrying their laws with 
them. In a conquered country, the King 
could impose such laws as he pleased. In such 
conquered countries the laws and customs 
thereof maintained, unless contrary to religion 
or malum in se or silent; in such cases the laws 
of the conquering country prevailed (Peere 
Williams was not published until 1740). In 
contrast with the Privy Council doctrine is a 
1720 opinion by Richard West, counsel to the 
Board of Trade, where the distinction beween 
an uninhabited and a conquered country is 
omitted. West was of the opinion that "the 
common law of England is the common law 
of the plantations, and all statutes, in affirmance 
of the common law, passed in England, antecedent 
to the settlement of any colony, are in 
force in that colony, unlesse there is some 
private act to the contrary" (CSP, Col., IJ2O 
#117; 2 Chalmers, Opinions, 202). Compare 
the added sentence in 1 ibid., 195, viz., 
"Let an Englishman go where he will, he 
carries as much of the law and liberty with 
him, as the nature of things will bear." See 
also the 1724 opinion of the crown law officers, 
Yorke and Wearg (ibid., 220). For further 
discussion of these views see Campbell v. Hall 
(20 Howell, State Trials, 239); Goebel, The 
Struggle for the Falkland Islands (1927), 99 
et seq. 
The question, then, is whether Connecticut 
was to be considered as a conquered or an uninhabited 
colony. We have seen discussion of 
the question earlier in the Connecticut-Mohegan 
Indian controversy (supra, p. 441). The 
"whereas" clause of the colony charter which 
affords as good an answer as any relates that 
"the same colony, or the greatest part thereof, 
was purchased and obtained for great and 
valuable considerations, and some other part 
thereof gained by conquest," 1 Thorpe, Federal 
and State Constitutions, 529. But then difficulty 
arises in the application of the juristic 
concepts of "conquered" and "uninhabited" to 
the actualities of the settlement of Connecticut 
(see 2 Andrews, Colonial Period, cc. Ill—v). 
Since for the most part die machinery of settlement 
was the purchase of lands from the 
Indians (see De Forest, History of the Indians 
of Connecticut, 83, 162-67, x 75 — 77> 182-83), 
it is difficult to see how such settlement fits into 
the category of either "conquered" in fact or 
"uninhabited." It is probable that by "uninhabited" 
was then meant countries populated 
by aborigines only, since no important countries 
settled by English subjects were "uninhabited" 
in the literal sense. See argument of 
counsel Wallace in Campbell v. Hall (op. cit., 
280) ; Forsyth, Cases and Opinions on Constitutional 
Law (1869), 17, 20. But if Virginia was 
by a legal fiction regarded as conquered (supra, 
p. 470), was Connecticut any less so? However, 
it would seem that the weight of authority inclined 
in the direction that the common law of 
England was, by the charter, made the standard 
to which the laws of Connecticut must conform. 
120 g Winthrop Papers, 488.