452 ///. THE COLONIAL PERIOD colony argued, English common law could be binding be- yond the sea only in case it had been accepted by the col- onist's own choice.^ From the nature of the laws passed, it is evident that the colonial government never considered the common law to be in force within its jurisdiction, and in this belief it said it had never been corrected or otherwise in- structed from the throne. In this connection Governor Talcott pertinently asks, " And why should we be directed to make laws not contrary to the laws of England if they were our laws, for what propriety can there be in making that a directory to us in making a law which was our law before we made it." ^ As this was the case, it is evident that something more was implied in the charter than the making of by-laws. In that document was proposed an object, the religious, civil, and peaceable government of the colony, which could not have been attained by the passing of by-laws. The charter implied a power to enact in the colony that which was law in England and also any good and wholesome law which was not contrary to it; and such limitations could not be to by-laws only.^ Furthermore, the colony insisted that the analogy to a municipal corporation in England was not sound, inasmuch as it was the privilege of English- men to be governed by laws made with their own consent.* The colonies were not represented as were the English towns in Parliament; therefore the only laws made with the con- sent of the colonies were those of their own legislatures, and those were more than by-laws. The opinion of the colony, therefore, was that the phrase, " contrary to the law of England," referred only to laws contrary to those Acts of Parliament which were in express terms designed to extend to the plantations.^ That this had been the practice as well as the theory in Connecticut is evident from Congreve's letter to the Board of Trade, in which he says, " They allow of
- " The common law always hath its limits environ'd by the sea." Tal-
cott Papers, II, Appendix, " Instructions to Agent," p. 492.
- Ibid., II, Appendix, " Instructions to Agent." These instructions
were drawn up by John Read and not by Talcott, II. 489 note.
- Ibid., I, p. 149.
- Ibid., I, p. 159 ; II, Appendix, " Instructions to Agent."
- Ibid., I, p. 152.
