it had received confirmation by the King in Council. Furthermore, the confirmation 
was made by those who had granted the 1691 charter to the colony 
and who were indisputable judges as to conformity to the charter. 230 This 
confirmation was augmented by five additional or explanatory acts which had 
been expressly or tacitly approved by the King in Council. 231 To this argument 
appellant answered that if the law were void, the confirmation added 
nothing to its validity. 232 Next, it was attempted to show that the act was 
not repugnant to the laws of England. Admitting that the colony rule differed 
from primogeniture (the general rule governing descents in England), respondent 
pointed out that many customs prevailed in the mother country 
which were repugnant to the general rule. Yet the legality of such customs as 
gavelkind and borough English was never questioned, although circumstances 
did not afford the same justification for such deviation as in newly 
settled countries. So, as rules of descent varied and conflicted in England, it 
was impossible but that the rule of descent in America should vary from one 
rule or other in England. 233 The similarity of the Massachusetts rule of descent 
to gavelkind was urged at the hearing. 234 
Assuming for forensic purposes that these arguments failed and that the 
repugnancy of the act was established, a new line of argument was taken 
by counsel. It was insisted that in the charter there were no clauses restrain- 
230 5 Mass. Hist. Soc. Proc, 72. The act was 
confirmed by an Order in Council of August 
22, 1695 {PC 2/76/195). 
231 5 Mass. Hist. Soc. Proc, 72-73. Two acts 
receiving actual confirmation were Chapter 46 
of the laws of 1692-93 (1 Acts and Res. Prov. 
Mass, hay, 101), confirmed at the same time 
as the main act (PC 2/76/195) and Chapter 2 
of the laws of 1730-31 (2 Acts and Res. Prov. 
Mass. Bay, 579), confirmed by a January 27, 
1731/2, Order in Council (3 APC, Col, p. 
845). The reliance placed upon the language of 
the confirming orders was without significance, 
since such language was the formal style for 
such category of conciliar orders. Three acts received 
tacit approval in that they were neither 
disallowed nor confirmed within the three year 
period specified by the charter (see 3 Thorpe, 
Federal and State Constitutions, 1883). These 
acts were Chapter 2, Laws of 1710-11 (1 Acts 
and Res. Prov. Mass. Bay, 652), Chapter 24, 
Laws of 1715-16 (2 ibid., 31), Chapter 10, 
Laws of 1719-20 (2 ibid., 151). Cf. 2 Talcott 
Papers, 80. 
232 Notes from the Lee MS read: "If law void 
the confirmation nil valet 295 [Coke's] Inst. A 
confirmation only makes good a voidable estate. 
301. 
"5 Co\e 56a. King's grants shall not issue 
to 2 purposes. 
"If King grants lands to villein does not infranchise 
yet it would in case of a common 
person." 
233 5 Mass. Hist. Soc. Proc, 79. 
234 It appears that it was asserted: "That [law] 
is not contrary to the laws of England which 
law allows and the laws of England allow of 
lands being divided as here. [Marginal citations, 
1 Inst. 175, 140 a] Judges must take 
notice of custom of gavelkind by which case 
all brothers divide by custom. Britton 187b. 
Lands partible between brothers and sisters by 
custom. Hale, folio 220, lands descended to 
sons and daughters" (Lee MS). The further 
point was made that "gavelkind is a socage 
tenure. Charter is that lands should not be 
[held] by knight service but by common 
socage. 2 Anderson 115" (ibid.). On the 
charter tenure, see 3 Thorpe, Federal and 
State Constitutions, 1870. It was, however, 
noticed that "this law differs from gavelkind 
in the extent" (Lee MS). 
Under gavelkind the estate was partible 
among the sons equally (Robinson, The Common 
Law of Kent; or, The Customs of Gavelkind 
[1741], 90-91); the double share to the