charter, various arguments were adduced to justify the distribution provided 
for by the questioned act. First, the antiquity and constancy of such usage in 
the province 239 and the extent thereof in other colonies was shown. 240 Sec- 
"if the King and legislature in a plantation 
could make a law that a man should be tryed 
for his life without a jury." 
239 j Mass. Hist. Soc. Proc, 69-70. In her 
printed Case, respondent alleged that the colony 
enacted an act "about 1641, for distribution 
of intestate's estates; subjecting lands (if not 
otherwise disposed by the owners), in the manner 
of personal estates in England, to an equal 
distribution among all the children, or next 
of kin in equal degree, or to the like effect." 
Presumably meant was the Body of Liberties, 
#81, 82. The former provided that: "When 
parents dye intestate, the elder Sonne shall have 
a doble portion of his whole estate reall and 
personall, unlesse the Generall Court upon just 
cause alleadged shall judge otherwise." The 
latter provided that: "When parents dye intestate 
haveing noe heires males of their bodies 
their daughters shall inherit as copartners, unles 
the Generall Court upon just reason shall judge 
otherwise." See Whitmore, A Bibliographical 
Sketch of the Laws of the Massachusetts Colony 
from 1630 to 1686 (1890), 51. Compare the 
"spurious" version (see ibid., 1-2) set forth 
in 1 Hutchinson Papers (2 Prince Soc. Pub., 
1865), 191. In a 1646 declaration of the General 
Court these provisions of the Body of 
Liberties were set forth as consonant with the 
common law of England (ibid., 234-35). On 
the validity of this contention see R. B. Morris, 
Massachusetts and the Common Law: the 
Declaration of 1646, 31 AHR 447-48. This 
provision was repeated in the Book of the General 
Laws and Libertyes of 1648; see Laws 
and Liberties of Massachusetts (1929), 53-54. 
In the 1660 revised laws of the colony it was 
ordered "that when the husband or parents dy 
intestate, the County Court of that jurisdiction, 
where the party had his last residence, shall 
have power to assigne to the widdow such a 
part of his estate as they shall judg just and 
equal as also to divide and assigne to the children 
or other heires their severall parts and 
portions out of the said estate, provided the 
eldest sonn shall have a double portion, and 
where there are no sonns the daughters shall 
inherit as copartners unless the court upon 
just cause alledged, shall otherwise determine" 
(Colonial Laws of Massachusetts, 1660—1672. 
[1889], 201). The provision was incorporated 
in the 1672 revision of the colony laws (Colonial 
Laws of Massachusetts, 1672—1686 
[1890], 158). Certificates under the colony 
seal from the proper officers were used to show 
the usage and practice under tire act (2 Talcott 
Papers, 80). Many exarpples of usage are to be 
found in Probate Records of Essex County, 
Massachusetts (1916-20), Volumes I — III, passim. 
See also the recital in the Committee report 
on the appeal (3 APC, Col., #322). As 
to the New Plymouth colony it has been supposed 
that gavelkind tenure prevailed there; 
see Morris, Studies in the History of American 
Law, 108. This supposition is based upon enactments 
"that inheritance do descend according 
to the comendable custome of England and 
hold of East Greenwich" (The Compact with 
the Charter and Laws of the Colony of New 
Plymouth [ed. by W. Brigham, 1836], 43, 
279; 11 Rec. Col. New Plymouth, 187) in 
accordance with the tenure of the charter (3 
Thorpe, op. cit., 1842; see discussion supra, 
n. 118, as to effect of the tenure expressed 
in charters), and upon the inclusion of this 
tenure clause in deeds made in the colony (see 
Brigham, op. cit., 53-54; 12 Rec. Col. New 
Plymouth, passim). But the scanty evidence 
available indicates that primogeniture prevailed 
in die colony; see 4 ibid., 75—76. However, the 
laws of 1672 provided: "That when any man 
dyeth intestate, and leaves divers children; the 
eldest son shall have a double portion with 
what he hath already received from him of 
his estate, both real and personal" (Brigham, 
op. cit., 218-82). In the 1685 revision of the 
laws it was provided: "That all the sons of any 
person having lands in fee simple shall be 
heirs . . . the eldest son shall have double to 
any of his brethren; and all the younger equal 
shares of the land of their ancestors . . . and 
where there is no son, all the daughters shall 
inherit alike." And further that "all the 
brethren of the whole blood shall be heirs to 
any person dying without issue; the eldest 
brother to have double to any one of his 
brethren . . . and where there is no brother, 
the sisters of the whole blood shall inherit" 
(Brigham, op. cit., 299). Compare this with 
gavelkind tenure, supra, n. 234. 
2 *° In argument it was asserted that "this law 
of division takes place in Pennsylvania, New