Case 2GI and in several other decisions, 262 no English court had ever declared 
null and void an act of Parliament by judicial review. 263 There is, however, 
no evidence that it was argued at the Cockpit hearing in Philips v. Savage 
that the confirmed act had the force of an act of Parliament, and it is furthermore 
extremely doubtful if Northey's doctrine could be supported. 
A second question arises as to what action could be taken in the case of a 
confirmed act which was later regarded as repugnant to the laws of England 
and the charter limitations. In 1727 the Board of Trade transmitted three confirmed 
acts of Massachusetts to the crown law officers, desiring their opinion 
whether the acts were repugnant to the charter, and if they were, whether it 
was now in the King's power to repeal them. 264 These acts passed in 1692/3 
and 1695/6 were concerned with the settlement and support of the ministry 
in the province. 26s In an August 16, 1732, opinion of the crown law officers 
in the matter, it was advised that the acts were probably not void as repugnant 
to the charter restriction. But, the opinion continued, "if they were really void 
in themselves on this account yet no extra-judicial declaration that they are 
so would be conclusive, but the only method of bringing that matter to a 
determination would be by some judicial proceeding." 266 If this opinion is 
coupled with the earlier opinion as to the force of a confirmed colonial act, 
acceptance of the theory of judicial review of acts of Parliament is made 
out. But there is no explicit statement as to the force of confirmed acts in 
the later opinion. The declaration as to the need for judicial proceedings is 
consistent with the 1696 statutory provision and the practice thereunder, since 
this was not the case of an act of Parliament extending to the plantations. 
Philips v. Savage was not without bearing on later Connecticut proceedings. 
In July, 1738, Ferdinand John Paris, solicitor for respondent Savage, explained 
the argumentative technique successfully employed in Philips v. Savage and 
suggested a course of action for Connecticut. As a procedural precaution, 
Paris warned the colony against allowing numerous appeals questioning the 
validity of the act. 267 Also stressed was the necessity of intervention by the 
crown law officers regarded conciliar confirmation 
as comparable to the adjudgment mentioned 
by Holt. See also Ellesmere, supra, note 
257. 
201 8 Co\e Rep. 113b, 118 a. 
262 See Day v. Savadge (Hobart 85); City of 
London v. Wood (12 Mod. 669, 687-88); cf. 
Thornby v. Fleetwood (10 ibid. 114, 115). 
263 p or discussion of these cases see Plucknett, 
Bonham's Case and Judicial Review, 40 Harvard 
L.R. 30, passim; Corwin, The "Higher 
Law" Background of American Constitutional 
Law, 42 ibid., 367-80; Boudin, Lord Co\e and 
the American Doctrine of Judicial Power, 6 
N.Y.U.L.R., 236-46; Thome, Dr. Bonham's 
Case, 54 LQR 543-52. 
264 CSP, Col., 1726-27, #784. 
265 See 1 Acts and Res. Prov. Mass. Bay, 62, 
101, 216. 
266 Add. MS, 36,142/300-311. 
267 Many parties might be unable to afford the 
expense of the necessary proofs, others might 
injure the cause by a weak defense. Besides, it 
would impoverish the colony to expose many 
parties to the charges of individual appeals (2 
Talcott Papers, 83),