must be sought. But the relief sought was based on an untenable interpretation 
of the 320! instruction. In the first place, this interpretation supposed that 
the instruction altered the ancient law of the land that the trial of facts was 
entrusted to the jury and that their verdict thereon was final. The Supreme 
Court proceeded in the main according to the practice of the courts of Westminster; 
hence no verdict had ever been re-examined by any superior provincial 
judicatory. To attempt such re-examination would be repugnant to the laws 
both of England and of the colony; to suppose royal design to change the law 
in such an important aspect was absurd. 205 
Secondly, the very words of the instruction permitted a more reasonable 
interpretation. In common parlance, the bringing of a writ of error to carry 
a cause from a lower to a higher tribunal was an "appeal"; this linguistic 
usage would satisfy the terms of the instruction without altering the existing 
law. Furthermore, the term "appeal" as applicable to cases of error was employed 
in the pre-1753 instructions; 206 Gordon v. Lowther was also cited to 
support the Horsmanden view. 207 In addition, by the instruction the governor 
was "to issue a writ in the manner which has been usually accustomed"; 
such manner could mean only appeals prosecuted by writs of error, the constant 
practice in the colony. The provision forbidding judges below from 
voting as council members, but allowing them to render the reasons of their 
judgment implied that the appeal given was only in error, not upon the jury 
verdict, since they were only judges of the law, not triers of the facts. 208 
Horsmanden argued further that reasons of convenience militated against 
a contrary construction. Since evidence of witnesses was given viva voce, it 
could not be transmitted as part of the record; the court above, therefore, could 
not judge of the facts supporting the verdict without a re-examination of the 
witnesses. Two objections existed to such re-examination —the necessity of a 
trial de novo, lack of a written record rendering impossible confinement of 
appellate proofs to what was offered below, and the encouragement to perjury 
by notice of adversarial proofs. Institutionally, trial by jury would be partially 
abrogated, since verdicts in all causes above would lack finality, result- 
Council, 9-10; 2 Journals General Assembly 
N.Y., 804; 7 Doc. Rel. Col. Hist. N.Y., 677). 
205 29 MS. Mins. N.Y. Council, 11-16; Rep. 
Forsey v. Cunningham, 9-10. A decade later 
William Smith, Jr., made the assertion in his 
memoirs that he had formulated these reasons 
offered by Horsmanden (5 Wm. Smith MSS, 
sub Nov. 12, 1776). 
206 Rep. Forsey v. Cunningham, 10. See also 
1 Labaree, Royal Instructions, #448. The 
language which was garbled by Horsmanden 
reads: "that appeals be permitted to be made 
in cases of error from the courts in our said 
province." 
207 2 Ld. Raymond 1447. Writ of error and 
appeal were used synonymously. See also 
Hodgson v. Ambrose (1 Dougl. 337, 344, 
note [English Reprint]), mentioning "an appeal 
in the nature of a writ of error"; the 
argument of Comyns in Christian v. Corren, 
supra, p. 173. 
208 Rep. Forsey v. Cunningham, 10-11.