regarded the 1699 act as in force; 295 but the question was not further agitated 
before the Privy Council. That the imperial administrators finally capitulated 
to the colonial view on intestate distribution is seen by the treatment accorded 
New Hampshire 29e and Pennsylvania statutes 29T governing intestacy. 
While these three appeals— Winthrop v. Lechmere, Philips v. Savage, and 
Clar\ v. Tousey —clearly established that colonial legislation was subject to 
judicial review, not all the implications of the doctrine were understood. Particularly 
confused was the distinction between a disallowance and a declaration 
of nullity, a matter which evoked from Benjamin Whitaker, Chief Justice 
of South Carolina, a representation (February, 1742/3) to the Board of 
Trade canvassing the legal status of acts repugnant to the laws of England. 
As an initial premise, it was stated that all acts of assembly were made 
by an authority derived from the crown which enabled the governor, council, 
and assembly to make laws provided they were as near as might be agreeable 
to, but not repugnant to, the laws of England. 298 In some cases acts had been 
made in the plantations not only contrary to the royal instructions and the 
prerogative of the crown but also disagreeable or repugnant to the laws of 
England. 299 The question, then, was whether such laws were void when they 
were first made or were voidable by the royal disallowance and might be put 
into practice until the royal pleasure should be signified that the same were 
repealed. A further question was whether judges of the colony courts when 
295 s ee Digest Early Conn. Probate Rec., 
1729-50 (comp. by C. W. Manwaring, 1906), 
15, 40, 50, 124-25; Acts and haws Connecticut 
(1786), 53-54; 2 Douglass, Summary, Historical 
and Political (1755), 174. 
296 Matthew Lamb, Board of Trade counsel, 
reporting on March 17, 1747/8, on An Act 
in Addition to an Act Entitled an Act for 
the Settlement and Distribution of the Estates 
of Intestates, etc. (3 Laws of N.H., 9) 
stated that many objections might be made if 
the law were a new enactment, "as the course 
of descents and distributions of intestates 
estates is thereby greatly altered from the 
course of the laws of England in that respect." 
But the law was additional to several 
acts already in force which had a settled 
course (CO 5/926/B 4). 
297 Lamb in a December 5, 1749, report on 
An Act for Amending the Laws relating to 
the Partition and Distribution of Intestates 
Estates (2 Charter and Acts Assembly Prov. 
Pa. [1762], 22) related that "this and some 
other of the neighboring provinces have particular 
laws relating to the distribution and 
division of intestate's estates which are different 
to the laws of England but as they 
have been heretofore passed and confirmed 
here, I can make no objection thereto" (CO 
5/1273/ V 62). See also Russell, The Review 
of American Colonial Legislation by the King 
in Council, 159-60. Compare the attitude 
shown in the disallowance of a North Carolina 
act of December, 1762, appointing the 
method of distributing intestates' estates. The 
Committee reported that the act varied from its 
parliamentary prototype, 22 and 23 Charles 
11, c. 10, in that in the distribution provided 
therein the legal representatives of deceased 
children were not included (4 APC, Col., 
#566). 
298 Under the 1739 commission to Governor 
Glen, laws, statutes, and ordinances were 
"not to be repugnant, but as near as may be, 
agreeable to the laws and statutes of this 
our kingdom of Great Britain" (2 Labaree, 
Royal Instructions, p. 819). This was the 
ordinary commission provision; see supra, 
a. 25. 
2m CO 5/369/G 118.