Colden. On the contrary, it was maintained that the colonists carried out with 
them those laws of England in force, not those of antiquity; furthermore, the 
common law could not readily be distinguished from acts of Parliament. The 
second moral proposition above was contrary to the common law and dangerous; 
the royal prerogative might erect new courts, but procedure therein had 
to be according to the course of the common law. Finally, 4 Henry IV, c. 23, 
was enacted in order to prevent such appeals as were now contended for. 232 
On the same day the provincial council delivered a lengthy refutation of the 
contentions of Colden, argument by argument. In answer to the assertion that 
the anti-Coldenites failed to distinguish between laws and their execution, it 
was asserted that the King could not alter the adjective law without the least 
alteration in the substantive law. Every court erected by crown authority must 
be so modeled in its essential parts as to have a known and common law jurisdiction. 
Wherever such newly modeled courts were essentially different from 
those known in the law, it amounted to an alteration of the law. Although 
different methods of procedure were found in the various colonies, the essential 
provinces of the judges and juries were preserved in each. 233 An appeal 
in the sense of a writ of error, it was conceded, was essential to the royal prerogative 
and to the maintenance of the dependence of the colonies. As the 
colonies were not parcel of Great Britain, no remedial writs would lie from 
the superior to the inferior jurisdiction, except writs of error. For if errors of 
colonial judges could not be corrected by judges of the kingdom, the laws of 
the dependent colonies might be insensibly changed or judgments might be 
given to diminish the superiority of the mother country. That appeals upon 
matters of fact were not necessary to support this dependence was obvious, 
for the outcome of a question of fact between subject and subject could not 
possibly effect such independence. 234 
The lieutenant-governor had contended that by writ of error the cause 
was not removed, but that some disputed points in law were determined, which 
might have no relation to the merits of the cause. To this it was replied that 
by writ of error the record was removed and that the merits in law arising 
from the matters of fact contained in the record necessarily received their determination 
in a court of errors. The citation of Magna Carta to confirm the 
subject's right to appeals was refuted, as was the latent distinction alleged to 
run through the argument of Colden that the colonies were entitled to the 
common law tempore Magna Carta, but that no subsequent laws extended 
to the colony. 235 But even at the time of Magna Carta and previous thereto, 
232 ibid., 60-65. 
233 Ibid., 31—33. 
234 Ibid., 33—34. 
235 Ibid., 35-37. In support of the refutation 
it was asserted: (1) that it had been adjudged 
by the King in Council that in the colonies