Talcott, forwarded instructions containing the familiar arguments for a reversal 
of Winthrop v. Lechmere. 28i Finally, in April, 1742, a petition for leave 
to appeal from the February, 1740/1, judgment was presented to the Council 
Board and referred to the Committee; upon a favorable Committee report the 
appeal was ordered admitted on the usual security in May. 283 Although the 
appeal was ordered heard in February, 1742/3, no further action was taken 
in the cause until June 2, 1743. 280 On this date Clark presented a petition to 
(ibid., sub Aug. 19, 1740; 9 Pub. Rec. Col. 
Conn., 589). It has been alleged that an appeal 
to the King in Council was refused in the 
colony (2 Talcott Papers, 88). Upon argument 
plaintiff claimed that the common law of England 
governed descent in the colony, citing the 
Case of the Earl of Derby (2 And. 115) to the 
effect that lands held under the Great Seal 
should descend according to the common law. 
Defendant replied that the common law did 
not extend to the plantations (citing Blankard 
v. Galdy [2 Salk,. 411], and Smith v. Brown [2 
ibid. 666]), that natural law prevailed until 
the King declared his law there, and that the 
1699 act was in force or natural equity prevailed. 
Plaintiff in rebuttal alleged the 1699 
act was "vacated and repeald" and that "the 
law of nature and nations acknowledged primogeniture" 
(1 Law Papers, 27-28). 
284 Particularly singled out were: (1) the 
significance of Philips v. Savage, Connecticut 
possessing the same legislative power under its 
charter as Massachusetts; (2) the Act for the 
more easy Recovery of Debts in his Majesty's 
Plantations and Colonics in America (5 Geo. 
11, c. 7) which in effect established the same 
principle complained of in Winthrop's appeal, 
viz., die equal treatment of realty and personalty; 
(3) the constant usage under the act, 
as evidenced by certificates; (4) the agreement 
of the distribution with English customary law; 
(5) the nonextension of the laws of England 
to the plantations and the prevalence of natural 
law therein, citing Blankard v. Galdy and 
Smith v. Brown. Also relied upon for this assertion 
was an opinion of the crown law officers 
in connection with the operation of fines 
levied and recoveries suffered in England of 
lands in the plantations. Presumably meant was 
the 1730 opinion of Yorke and Talbot (2 
Chalmers, Opinions, 174); it scarcely supported 
the proposition for which it was cited (1 Law 
Papers, 23-26, 28-31). It was also argued that 
the suggestion derived from Winthrop v. Lechmere, 
that the colony could make a law regulating 
intestacy "were it not contrary to the 
law of England," was "inconsistent with an 
hypothesis that the law of England is our law" 
(ibid., 23-26, 28-31). The colony's interpretation 
of the crown law officers' opinion was 
termed mistaken by the partner of Wilks, since 
"those opinions are confined to the statute and 
do not extend to the common law of England, 
for that it has always been understood here that 
the common law of the land extends to all our 
plantations, and that the people there are equally 
intitled to it as the people here, as their common 
birthright" (ibid., 52-53). This view was said 
to be "shocking" in the colony (ibid., 71). See, 
too, Law's comment upon the trial below in 
Clark v. Tousey: "That wherever the rules of 
the common law take place, ad questionem 
facti respondent juratores non judices, how unaccountable 
will it be then to say the common 
law extends here to make the eldest son heir 
and not to make the jurors, judges of the fact 
and of titles to land. This very appeal shows to 
a demonstration that we are out of the verge of 
the common law. Such an appeal from Westminster 
would at once be rejected. Why? Because 
the tryal was within the jurisdiction of 
the common law qui sentit onus sentire debit et 
commodum" (ibid., 67; cf. ibid., 68). Therefore 
solicitor John Sharpe further expounded 
the distinction between the extension of 
statute law and the common law to the plantations 
(ibid., 74-75). 
285 9 Pub. Rec. Col. Conn., 588-89; PC 
2/97/120, 125, 137; 1 Law Papers, 52. Even 
before this admitting order was known in the 
colony the assembly upon petition of Tousey resolved 
to advance respondent in new 
tenor bills to defend the appeal (8 Pub. Rec. 
Col. Conn., 463). In October, 1742, Eliakim 
Palmer, appointed agent in place of the deceased 
Wilks, was directed to obtain the services 
of solicitors Paris and Sharpe or of other 
learned counsel to assist and defend respondent 
Tousey in the most vigorous manner possible 
(ibid., 506). See also 1 Law Papers, 66. 
286 9 Pub. Rec. Col. Conn., 590. Solicitor John 
Sharpe was confident that the 1699 act could