writ o£ error was used to correct errors of inferior courts; the "appeals" referred 
to by Colden were presumably writs of false judgment, which were 
in the nature of writs of error. Labeled as "mistaken" was the argument that 
appeals in matter of fact lay from the Court of Hustings. The argument of 
Colden based upon the supposition that formerly no distinction existed between 
the province of judge and jury was refuted by demonstrating that the 
province of the jury had always been what it was at present. Furthermore, the 
use of writ of error had not been assumed by the King's courts, but had belonged 
to them from time immemorial. The distinction that writs of error 
did not lie in the colonies was grounded on the erroneous premise that only 
the ancient common law extended to the colonies. The supposed necessity of 
an act of Parliament to give writs of error in certain cases was a misuse of 31 
Elizabeth, c. i. 238 
The argument based upon Channel Islands precedents was refuted by use 
of Sir Matthew Hale's History of the Common Law, and it was averred that 
there was nothing to show that the appeal mentioned by Lord Hale did not 
mean "writ of error"; it was certain that writ of error had lain to Calais, which 
enjoyed the same constitutional status. As to charter provisions in other colonies, 
it was retorted that the law of the land, not the practice in other colonies, 
was guiding. The word "appeals" in such charters could still mean "in cases 
of error" only. In Massachusetts and Connecticut it was well known that by 
laws of their own making and in evident deviation from the common law a 
power of appeal in matters of fact had been established. This erroneous practice 
of appealing on matters of fact to the Privy Council was not to be wondered 
at in colonies where the law of England was not so well understood or 
so strictly adhered to as in New York. 237 By the old instruction, a court of 
errors was expressly erected, and by implication a writ of error. The "court 
of appeals" mentioned in the present instruction must necessarily be "the 
court of errors" of the old instruction, because it directed the accustomed writ. 
Therefore the accustomed writ thus mentioned must necessarily intend the 
writ of error implied in the earlier instructions. Jones v. Fullerton from New 
Jersey was cited to support the contention that appeals for error would lie in 
the colonies and that the practice of bringing them had long usage there. The 
the subjects carried with them the laws of 
England, those made before and after Magna 
Carta (2 Veere Williams, 75); (2) that by 7 
and 8 William 111, c. 22, the laws of England 
as they then were and as they should appear 
to be thereafter were made the standards of 
law in the colonies; (3) that by gubernatorial 
instruction life, limb, and property were to be 
taken away only by such laws as were agreeable 
to the laws of England; (4) that from 
the first settlement until the present day the 
laws of England had been the measure of 
right and wrong between subjects in the 
colony. 
238 Rep. Forsey v. Cunningham, 38-43 
237 Ibid., 43-45.