estates have ever gone to the heirs of the purchasers notwithstanding the 
law of England." In giving judgment the court stated that 
most of the ancient purchases in the colony at the first settling thereof being made 
by purchase as joint tenants and their heirs ever having had aid by partition after 
the decease of their predecessors; and there never appearing to have been any 
infraction made into the said custom from time out of mind so that the same hath 
become equal to a common law and is by ancient usage the right of the subject and 
the only safeguard against an inexpressable confusion threatened by the putting 
in force the law relied on by the defendant. 
It was adjudged, consequently, that the estate of John Sabeere passed to his 
heirs, the plaintiffs, and that execution issue for a partition accordingly. Defendant 
thereupon appealed to the King in Council. 205 A protest against the 
judgment was also entered by Governor Jenckes and Judges Wickes and 
Helme who termed it "contrary and repugnant to the common law and custom 
of the realm of England." 20e 
The appeal was entered in April, 1730, and was heard by the Committee in 
May, 1731. The Committee advised reversal and that in case execution for 
partition had issued this be superseded and appellant put into possession 
of the moiety adjudged respondents and that respondents make satisfaction 
to appellant for rents and profits received while in possession. It was thus 
ordered by a May 11, 1731, Order in Council, 207 but there was no express 
declaration of nullity of the Rhode Island custom. Nevertheless, unless we can 
assume that the alleged usage was just contemptuously ignored it is difficult 
to escape the conclusion that the purport of the council order, since it affirmed 
common law, was an implicit avoidance of the custom obedient to the ancient 
and basic rule that customs contrary to the common law were void. 
There is no evidence that the judgment in the Rhode Island appeal directly 
affected the status of Connecticut's negotiations, but it must have served to 
emphasize the gulf which separated American and English opinion and the 
almost insurmountable difficulties of evading an admitted repugnancy of law. 
During the years immediately following Sabeere v. Sabeere the Connecticut 
men came no nearer to a solution of their troubles, but on the contrary found 
themselves on the defensive during 1734 and 1735, when Parliament undertook 
an investigation into the conduct of the colonies in general. 208 Finally, 
205 MS R.I. Sup. Ct. Jud. Judgment Book, 
1725-41, 301. 
206 Ibid., 302. 
2or PC 2/91/229, 351, 373, 380, 388. 
-208 g ee j Xalcott Papers, 294-98 (particularly 
resolutions 1 and 2 of the Committee of the 
House of Lords as to the extension of and 
strengthening of the legislative review power), 
300-301, 304, 317-18. A commentary on the 
existing legislative review system is seen in the 
August, 1733, report of Francis Fane on the 
laws of Connecticut transmitted to the Board 
of Trade. Apparently acting in ignorance of 
the declaration of nullity in Winthrop v. Lech-