THE REACTION IN SOUTH CAROLINA 
Diverse interpretations of this instructional innovation gave rise to controversy 
in New York centering about the celebrated cause of Cunningham v. 
Forsey. But before dealing with that cause let us proceed chronologically to 
examine the problem of interpretation as it first made its appearance in South 
Carolina. In February, 1762, one Egerton Leigh made application to Governor 
Boone for a copy of the instruction in question. Upon this application the governor 
observed that it did not appear that due notice of the instruction had 
been given to the judges of the law courts for their government therein or 
that the same had been made public by record or otherwise for the benefit of 
those concerned. Therefore, it was ordered that a certified copy of the instruction 
be delivered to the Chief Justice of Common Pleas and that this instruction 
be incorporated into the records of that court. 165 In March, 1763, Governor 
Boone informed the Board of Trade that several difficulties had arisen in the 
interpretation of the altered instruction. Boone stated that the Governor and 
Council were not agreed whether proceedings under the instruction were 
intended to be after the civil or common law manner, or whether the appellate 
court was to take cognizance of matters of law only or also of fact. Attempts 
were fruitless to procure copies of proceedings in older colonies of any cause 
removed to the Governor and Council and from thence to the King in Council, 
a program which would have clearly established the propriety of the mode 
pursued. His doubts not dispelled by a local Attorney General's opinion, the 
governor sought from England a complete transcript of a cause begun in a 
colonial court of law, moved to the Governor and Council, and finally determined 
by the King in Council or a minute of the Attorney or Solicitor 
General and distinct directions for conduct in execution of the instruction. 166 
No criterion of practice under the previous instruction existed, since no appeal 
had ever been taken to the Governor and Council in South Carolina. 167 
165 3 MS Pub. Rec. So. Car., 459-61 (So. Car. 
Hist. Comm., Columbia, S.C.). But note that 
on March 12, 1754, Governor Glen had laid 
the circular instruction before the council. 23 
MS So. Car. Council Journal, 133-34. Later, 
on Nov. 29, 1757, Governor Lyttelton had 
communicated to the council his 52d instruction 
as to appeals (26 ibid., 82-83). 
166 CO 5/377/ M 69. Search has failed to discover 
a copy of the Attorney General's opinion 
referred to in this communication. 
167 See CO 5/394/ D 2; 33 MS So. Car. Council 
Journal, 306. A 1730 observer, discussing 
the royal instructions to the governor of South 
Carolina allowing appeals to the Governor and 
Council in cases of error exceeding jfioo 
sterling, stated that "strictly and properly there 
is no appeal known to the laws of England, 
from the courts of common law in civil cases. 
Writs of error are allowable from the Kings 
Bench to reverse judgments erroneously given 
in all inferior courts of record. There are writs 
of error in Parliament and from the Exchequer 
Chamber . . . There are also appeals 
to the House of Lords from decrees in 
Chancery, and there are appeals in the ecclesiastical 
and other courts who proceed according 
to civil law from an inferior to a 
superior judge, but in all these cases the laws 
have settled certain and stated methods of