ing the King from granting any new powers to the province, nor any clause 
declaring that the crown and the assembly should never jointly enact any 
laws different from those prescribed in the charter. 235 Thus by the above 
confirming Orders in Council the crown enlarged the legislative power beyond 
the bounds set by the charter. 236 In the same vein it was advanced 
whether the true construction of the charter was not a general direction to 
the province to make laws not repugnant to the laws of England, but subject 
to the judgment of the crown. If the crown did not object, any law made in 
the province might subsist. 237 But seemingly this view was modified by a 
query whether the repugnancy meant by the charter was not a repugnancy 
to such laws as English subjects qua such had a right to and of which the 
King could not deprive them. It was alleged that there could be no inconvenience 
for the King to allow any law in the plantations which he thought 
reasonable, if there was a power in the King and plantation legislature to 
introduce it. And as the King to whom appeal was then made had not disallowed 
the law, he had already declared that he did not esteem the law so 
repugnant. 238 
Then veering away from the question of the legislative power under the 
eldest son provided by the Massachusetts act 
probably had a Biblical origin; see Deuteronomy 
21: 15, 17; St. Luke 12: 13; 15: 12; Robinson, 
op. cit., 9-10. Cf. Taylor, History of Gavelkind 
(1663), 8; Egleston, The Land System 
of the New England Colonies, 4 Johns Hopkins 
Univ. Studies (1886), 600. Among Lee's notes 
on the hearing is the following: "Here the 
eldest son has a double portion per Hebrews. 
1 Sid. 137 [Wiseman v. Cotten]" (Lee MS). 
Under gavelkind lands were divisible between 
males to the exclusion of females of the same 
degree (Robinson, op. cit., 90-91). But a custom 
of division prevailed in a few places in 
England wherein lands were divisible among 
males and females in the same degree, as provided 
by the Massachusetts act (Robinson, op. 
cit., 36-37; Taylor, op. cit., 100-101). Also 
under gavelkind the widow of intestate took 
one-half of the lands for life as dower, conditioned 
upon not remarrying and continence 
(Robinson on Gavelkind [1897], 139-41; 
Sandys, Consuetudines Kanciae, A History of 
Gavelkind [1851], 185—206; Lambard, Perambulation 
of Kent [1826], 503). Under the 
Massachusetts act the widow took one-third of 
the realty for life unconditionally. See also the 
comments of Gershom Bulkeley on the Connecticut 
pre-statutory pretensions of gavelkind 
tenure (Wyllys Papers, he. cit., 345-47). 
235 5 Mass. Hist. Soc. Vroc, 70, 
2s& lbid., 77. 
237 In the Lee MS we find the following: "The 
charter gives power to make laws not repugnant 
to the laws of England. In the same charter 
there is a proviso that all laws not disallowed 
by the King in three years shall be in force and 
therefore if the true construction in this charter 
should not be a general direction to the 
province to make laws not repugnant but subject 
to the judgment of the crown and if the 
crown does not object any law made in the 
province may subsist." 
Then Rex v. Kemp (4 Mod. 275) was discussed 
by respondent counsel. "Justice Eyre 
took the difference that if tire King be not 
deceived in any matter suggested by the grantee, 
but is only mistaken in his own affirmation 
and surmises though it be in the law itself, such 
grants are good, and such construction shall 
be made as may tend to their support. 2 Cro. 
34, 11 Co. [2] Auditor Curie's Case. 
"The King having reserved a power of judging 
to himself, if he and the legislature can 
introduce this law touching descents I think 
he has done it in this case effectually by consenting 
to this law. And in this case the King 
is the sole judge and has nothing to control 
him but the laws of England" (Lee MS). 
238 Lee MS. It was questioned at the hearing