lands was in question or the prerogative or rights of the crown affected. It was 
cautioned that a delay in determining the matter would be construed as a 
tacit withdrawal of the instruction. 224 
On January 2, 1765, Colden rendered to his council an exhaustive opinion 
on the controverted matter of appeals, 223 a mighty bit of fireside jurisprudence. 
The lieutenant-governor alleged that the opposition arguments failed to distinguish 
between laws and the execution thereof; the King could establish 
diverse methods of judicial procedure suited to individual colonies, although 
such variously constituted courts all administered the common law. Secondly, 
it was essential to the royal prerogative that "appeals" lie to the King, otherwise 
the dependence of the colonies could not be preserved. Then, launching 
into a pseudo-historical argument, Colden alleged that appeals to the King in 
person existed by the early common law and were confirmed by Magna Carta. 
At that time no distinction between appeals and writs of error existed, since 
there was then no distinction between judges and juries. Writs of error were a 
later introduction in the courts of Westminster, and were not part of the 
common law. Their use was confined to courts where assumed powers were 
confirmed by usage, unless extended by act of Parliament. This was made 
more evident by the case of the Channel Islands where judicial trials were by 
jury and the remedy was by appeal to the King in Council, not by writ of error. 
The reason for this distinction was that the islands were not part of the realm 
of England; the case of the Isle of Man was similar. 220 
It was evident, said Colden, that by the common law no writ of error could 
lie in the colonies, because they were no part of the realm of England, and no 
act of Parliament had extended writs of error thereto. The King had not given 
the Governor and Council power to determine on writ of error, but only on 
appeals, by which the whole cause was brought up for transmission, if necessary, 
upon further appeal to the King in Council. From the other colonies 
Colden referred to the appeal reservation clauses in the Pennsylvania and 
Massachusetts charters and to the fact that in Connecticut appeals were obtained 
by petition for royal mandatory writs. Appeals were allowed in several 
other colonies, and he had no knowledge of any instance of an appeal refusal 
227 The earlier arguments as to the construction of the instructional 
language and as to convenience were repeated. 22S To the principal objection 
that "appeals" deprived the subject of the privilege of trial by jury, it was 
234 7 Doc. Rel. Col. Hist. N.Y., 683-85. 
225 For an account o£ this rendition, see 
Letter Boo\ of John Watts, 321-22; 2 Aspinwall 
Papers, 549-50. 
226 7 Colden Papers, NYHS Coll., Pub. Fund. 
Ser. (1923), 1-3. But Colden was in manifest 
error in his assertion that jury usage prevailed 
in the Channel Islands. Presumably he regarded 
the twelve jurats as jurors. 
227 Ibid., 3-4. 
228 Ibid., 4-6. It was also stated that the words 
"appellant" and "appellee" in the instruction