advise the King in lawmaking. Finally, if the acts were not declared null 
ab initio, they were in effect confirmed. 467 
James Abercromby, the Virginia agent, in writing of the hearing declared 
that 
after the most learned Arguments on both sides for and against advising the King 
to declare the Law ab initio void, the Point was determined in our Favour (to 
wit) to go no further than the Repeal, as it stands on the Report of the Board for 
Trade— Never was a Case of so great Importance argued in Council, the King's 
Prerogative, the Validity of the Rules of Government, under which his Representative 
is circumscribed engaged the Attorney General on the side of the Clergy and 
Merchants too, whose Petition to the King in Council was thrown into the Case 
And the Grand Point in Argument was whether this Case, coming by way of 
Petition to the King in Council, in their Legislative or Ministerial Capacity could 
authorize their Lordships to determine in the first Instance what was, or what 
was not, Law. We argued that this could not be done otherwise than by a Judicial 
Appeal to their Lordships, and that then and not till then their Lordships sitting in 
Judgment as Judges, according to the Constitution of Colony Government could 
in the Kings Name, as Judges declare what was Law and, in Support of this Principle, 
urged the Statute of the 17th [sic] of King Charles Ist, whereby the Jurisdiction 
of the Star Chamber and Council Board was taken away in Cases of Property 
etc. 467 a 
It was later related by the clergy that it was the Committee's 
opinion that we had our certain remedy at law, My Lord Hardwick in particular 
delivered it as his sentiment that there was no occasion, to dispute about the Authority 
by which the Act was passed, For that no Court in the Judicature whatever, 
could look upon it to be law by reason of its manifest Injustice alone. If it had 
been there before them by way of appeal, it was declared that they would adjudge 
it to be no law. 438 
The instructional violation appears to have been irrelevant here, if this clerical 
version is to be believed; the significant factor was the substantive injustice of 
the act. Thus, we have upon somewhat attenuated authority obiter dictum to 
the effect that an inequitable colonial act, not necessarily contrary to the laws 
of England, might be regarded as null and void ab initio. Thereupon, the 
Committee likewise advised disallowance of the four acts and the issuance 
of an additional instruction. The acts were accordingly disallowed on August 
10, 1759. 469 On August 29 an additional instruction by the Board of Trade 
467 Ibid. 
4 67 a Abercromby to John Blair, President of 
the Virginia Council, Aug. 3, 1759 (MS James 
Abercromby Letter Book., 179-80 [Virginia 
State Library, Richmond, Va.]). 
468 Perry, ed., Hist. Coll. Rel. Amer. Col. 
Church, Virginia, 510; cf. ibid., 520; Fulham 
Palace MSS, Va., Box 2, #132. 
4 ™PC 2/107/61, 84, 86, 100. There is recognition 
that this disallowance was superfluous