cordance therewith the colony laws and judicial practice had been in strictest 
conformity to the laws of England; that such extension of the laws of England 
and such judicial practice had been further enforced by Privy Council adjudications. 
It was further insisted that the terms of the 32d instruction referred 
to such appeals as were known to the laws of England and long used 
in the colony, that no appeals other than in cases of error in law had ever been 
brought in the colony until the instant case. Consequently, the instruction 
must have reference to appeals in matter of law, since the judges below were 
excluded from sitting on appeal. Although there were several species of appeals 
known to the law, yet examples were common to prove that carrying up 
a cause by writ of error was called an appeal. Whenever an appeal was made 
on matters of fact, the errors were corrected, not by judges, but by the inquest 
of a jury. The Colden construction would do violence to the true sense of both 
instructions by which constitutional jurisdictions and some judicial procedure 
as established in England were clearly intended to be transferred to the colony. 
Furthermore, such interpretation would be ruinous to the subject by rendering 
the first trial useless, by delaying justice, by enhancing costs of litigation, and 
by opening the door to perjury on the second trial. 242 
On January n, 1765, the lieutenant-governor required the opinion of the 
provincial council whether by the 32d instruction the King had directed the 
governor to allow appeals in all civil cases from the provincial courts of common 
law and whether by the same instruction the Governor and Council were 
directed to hear and determine such appeals. The council, in reliance upon the 
opinions of the judges and learned counsel, were unanimously of the opinion 
that no other appeal than on error was the intention or meaning of the crown 
by this instruction and that they could not take cognizance of any other appeal 
243 
Colden, dissenting from this opinion, signified his reasons to the Board of 
Trade. If by "appeal" were understood "writ of error," the subject was restrained 
in causes below the appealable minimum from that relief which 
the subject in England had by right in all causes above 40s. value, unjustly 
and contrary to law. 244 If "appeal" meant "writ of error," the local jurisdiction 
would not provide for security to be given on appeal, since it was provided 
for by act of Parliament. Further, execution would not be ordered suspended, 
since a writ of error itself suspended execution. In English writ of error proceedings 
the appellate system embodied a hierarchy of judicial skill; in New 
242 Ibid., 56-58. 
243 29 MS Mini. N.Y. Council, 33; Rep. 
Forsey p. Cunningham, 29-30; 2 Journals 
General Assembly N.Y., 804-5; 7 Doc. Rel. 
Col. Hist. N.Y., 696. 
244 7 Doc. Rel. Col. Hist. N.Y., 696. Can this 
argument be taken to mean that the instruction 
applied only to "appeals," that as to 
writs of error there was no appealable minimum 
or one of only 40s?