It suggests that at least the Council had vindicated its work as a court and, 
more importantly, had kept vital the notion that there was a core of basic 
matter in the law of England from which there could be no deviation. As to 
the first of these achievements, what has been recounted in this volume supplies 
the muniments upon which the Council's pretensions rest. As to the second, 
it was less the constant use of declarations of nullity, for these were rare 
enough, than the fact that a fear of the impendence of such action was not 
allowed to abate. From the day that it was decided onward Winthrop v. 
hechmere remained a specter that was never laid. Its availability as precedent 
appears, indeed, as late as the year 1774. 
In Finney v. Byrne an appeal was taken from the Supreme Court of the 
Lower Counties on the Delaware, and an opinion given in the cause by colonial 
counsel Thomas McKean was dispatched to England. McKean pointed 
out that respondents claimed lands in controversy as brother and sisters of the 
half-blood of the intestate by virtue of a colonial act which was contrary to 
the common law and had not received royal approbation. He then advanced 
Winthrop v. hechmere as applicable in the instant case. 638 From a wholly 
unexpected quarter, however, came advice that the precedent was not reliable. 
Richard Jackson, disillusioned by years of dealing with the plantations, stated: 
I am inclined to think that the Act of Assembly mentioned will not be deemed so 
far repugnant to the common law as to be therefore void—if it should, a great 
part of the acts of Assemblys of all the colonies, which have received the royal 
approbation will be void on the same ground. I am aware of the case referred to, 
but do not think it to be relied on, as the act on which it decided is yet the law 
of the colony and universally submitted to. 639 
Owing to the catastrophe of the Revolution, Finney v. Byrne was never 
argued; 64 ° posterity was thus cheated of a possible further precedent on the 
declaration of nullity. The two opinions of counsel, however, are a sort of 
final memento of an era: the colonial lawyer, aware of the possibility of a 
declaration of nullity, proffers his precedent; the English barrister concedes 
the possibility, but is doubtful of the force and effect of a decision circumvented 
by an intractable citizenry. On so inconsequential a note the tale of 
judicial review by the Council comes quite characteristically to an end. The 
issues over which judges, politicians, and lawyers had been backing and 
filling for a century were swept from the hesitant maneuverings of administrators, 
to be settled on the sanguinary fields of battle. 
638 53 Frankjin MSS, #13, pp. r2-i3. For the 
record see 76 ibid., #12. For the only Privy 
Council record of the appeal see PC 2/118/237. 
Counsel McKean cited 2 Douglass, Summary, 
Historical and Political (1755), 174, as the 
source of his knowledge of Winthrop v. Lechmere. 

639 76 Franklin MSS, #14 e. 
640 22 ibid., 76.