ing in encouragement to litigiousness. The expense attending such appeals 
would be intolerable, as the proofs before the Governor and Council would 
have to be reduced to writing to form the civil law apostles for Privy Council 
appeal, although proper officers for this purpose had never been appointed. 209 
Pressure of business would overwhelm the appellate courts, and tedious complaints 
to the King in Council would be increased. The subject would be 
exposed to insecurity and danger, and there would be infinite delays of justice 
encouraging contention, with witnesses of all characters having equal credence 
with appellate judges and with new modes of introducing proof established 
by dictate of power without law. 210 
Following entrance of these reasons, the other Supreme Court judges were 
desired by the provincial council to present the reasons for their disobedience. 
It was then moved that the opinion of some of the legal profession be taken 
on the question whether the crown could legally constitute a court in the 
province with authority to hear civil causes by way of appeal from common 
law courts, according to the course of the civil law, upon the whole merits, 
to re-examine the evidence given to a jury, and to reverse or control its verdict. 
All the lawyers present immediately responded in the negative. 211 It was thereupon 
moved that the Attorney General deliver his opinion whether the King 
by the -p.d article of the instructions had constituted such a court. Kempe then 
declared his opinion that the crown meant by this article to constitute the 
Governor and Council a court of errors, not a court of appeals of the latitude 
expressed in the question. 212 
After some evasion Justice Smith was prevailed upon in council on December 
12, 1764, to give his reasons for not allowing the requested appeal. Smith 
declared that the Supreme Court could take no notice of an appeal from the 
verdict of a jury. For, in the first place, the judges by their commissions were 
only constituted judges of the law and were limited in their proceedings by 
the practice of the courts of Westminster, wherein no appeal from any verdict 
209 Ibid., 11-12. It was asserted that according 
to civil law usage there would have to be 
interrogatories, cross-interrogatories, examinations, 
cross-examinations, and production of 
exhibits; that the evidence produced at a 
common law trial of 12 or 24 hours, especially 
where title to realty was involved, 
would if reduced to writing swell the 
apostles to an enormous size. 
210 Ibid., 12-13. See 7 Doc. Rel. Col. Hist. 
N.Y., 679-80, 684-85, as to Colden's strictures 
upon Horsmanden's conduct in publishing 
these proceedings in council. 
211 29 MS Mint. N.Y. Council, 16-17; 2 
Journals General Assembly N.Y., 804; Rep. 
Forsey v. Cunningham, 14. 
212 2 Journals General Assembly N.Y., 804. 
Compare the Colden version, that Horsmanden 
proposed that the question be put to the lawyers 
then attending who were hesitant to 
answer; that the council refused to put the 
question or to enter into the minutes the refusal 
to put the question; that then William 
Smith, Jr., stated the question and answered 
it himself, as did the Attorney General (CO 
5/1071/PP 67).