VI 
THE SCOPE OF APPELLATE 
REVIEW 
One of the advantages of an institution which is in the stage of creation and 
growth, before it has been discovered, described, and pinioned by textbook 
writers into a scheme of their own imaginings, is the lack of definition of its 
objectives and the plasticity of the methods whereby it reaches its unguessed 
destination. The Privy Council, combining as it did in relation to colonial 
affairs political with legal functions and being manned from session to session 
by a different crew, is a striking and to the lawyer often provoking example 
of the uncertainties of growing things. The absence of any clearly formulated 
conception of the appellate function and of a consistent and commanding 
guidance is most obvious in the Council's failure to capitalize its strategic position 
to remake the moldy and inadequate conceptions of error jurisdiction. 
The last decades of the seventeenth century in England had seen the struggle 
over equity appeals x and the futile efforts to establish an adequate review of 
criminal causes, 2 but the King's Council was impervious to these currents, 
laying to its heart, apparently, the dictum of Lord Chief Justice Jeffreys, "It 
is practice that is the law." 3 More specifically, the Council, in the face of the 
intransigeance of colonial courts vis a vis the crown, in the face of the frequent 
and palpable lack of technical perfection in colonial practice, and even despite 
the fact that conciliar procedure itself was not bound by the shackles of common 
law error or certiorari procedure, nevertheless failed to take advantage 
of the opportunities offered it to remake the traditional role of the reviewing 
tribunal by adding to the powers of reversal the power of reforming the judgment. 
The circumstance that there came before the Council not only cases at 
common law but also decrees of chancery and sentences of vice-admiralty 
courts created a unique opportunity for a blending of remedies by a body 
which was not as a matter of law committed to the maintenance of precedents 
from any court. Nevertheless, only a few hesitant steps were taken in this 
direction, for the cursus curiae of the several English jurisdictions was given 
a respectful regard, and in general the Council proceeded as if it had been the 
1 i Holdsworth, HEL, 372-75. 
3 Rex v. Rosewell (3 Stale Trials [1719], 
1047). 
2 See the proposed Act of Parliament allowing 
bills of exceptions in criminal cases (H. of L. 
MSS, 1690-91, 21.