to the prosecution be transmitted under seal. 237 The Order in Council thereon specifically included for transmission the commission under which the court below sat. 238 But in later cases there was little mention of the transmission of such documents for the hearings. 239 In misdemeanor cases during the early years of the century appeals were usually made directly from the court of original jurisdiction to the King in Council. This practice was sanctioned by the governor's instructions as to misdemeanor appeals. 240 But the growth of intracolonial review in these cases tended later to decrease the scope of conciliar review; for, confronted with previous review by writ of error in the colony, the Council Board probably felt constrained to the same scope of appellate review. The picture of criminal appeals is not complete without some reference to the cases of seizures under the Navigation Acts, which as we have noticed previously were penal in nature. In ordering heard the appeal of Jahleel Brenton from the Massachusetts Court of Assistants condemnation of the Three Brothers, the Council Board, in July, 1697, gave the parties liberty to produce at the hearing what evidence they could relating to the appeal, "either by witnesses viva voce or by proofs upon oath in writing, notwithstanding the same be not attested under the seal of any of his Majesty's colonies." 241 This liberality was a product of the terms of the 1692 conciliar order admitting the appeal 242 and of the loss in transmission of depositions under the colony seal taken by respondent consonant to the terms of the admitting order. 243 Among the papers of John Comyns, counsel for the appellant in the 1701 Cole and Bean appeal from a Carolina Vice-Admiralty Court condemnation, is found a list of witnesses to be called to prove various issues involved in the appeal. 244 These issues requiring witnesses included the proceedings below, different usage in other plantations where governors had given time for procuring registers, the certificate of freedom of the London Collector of Customs, the under-appraisement of the ship and cargo, and confinement of the bidding on the seizure to an agent of the governor and the informer. 245 The record in a previous cause was to be used to prove the custom of trying Navigation Acts 237 PC 2/81/404. 233 PC 2/81/410. 239 However, in King v. Rex (1749), a petition from Antigua for a writ of error to the Governor and Council and, if necessary, an appeal to the King in Council, it was prayed that petitioner be allowed copies of the minutes, acts, and proceedings of the court as well as of the record upon payment of the usual fees (PC 2/101/244). 240 1 Labaree, Royal Instructions, #458. 241 PC 2/77/40. 242 2 APC, Col, #480. 213 PC 2/77/38. 244 Rawlinson MS., A 270/43-47. For further discussion of this cause, see supra, pp. 145-46. 245 To prove all the proceedings below or any part thereof, Butler and Walsh were to be called; to prove the different usage in other plantations, Morgan, Matticks, Savage, Randolph, and Gardner were to be called; to prove the certificate of freedom of Collector Shaw, Townsend and Butler were to be called; and to prove the under-appraisement and the