York the Governor and Council were manifestly less well equipped in legal 
learning than was the Supreme Court, but still they might be proper judges 
of the merits of a cause. If the practice of the courts at Westminster were made 
the law in the colonies, upon what practices there could the Governor and 
Council be made judges of the errors of the Supreme Court in New York? 
Or what writ could issue at New York to inhibit the Governor and Council, 
or to carry the case from there to the King in Council, the instruction directing 
no writ for this purpose ? Further argument was advanced from the context 
of the disputed instructional article. The 33d article permitted "appeals" 
to the King in Council in misdemeanor cases; it could scarcely be doubted that 
the "appeal" here extended to the whole merits, otherwise no judgment could 
be made whether the fine was excessive. The wording of this instruction — 
"you are likewise to permit"—indicated that the intention was the same in the 
preceeding instruction. However, the effect of this argument was vitiated by 
Colden's erroneous version of the language of the instruction. 245 Ultimately, 
all doubts were resolved by consideration of the probable reason for the instruction. 
Royal opinion being that it was unsafe to entrust the authority and 
rights of the crown to colonial courts in the last resort, an appeal on the merits 
to the King in Council had been reserved. Justification of this reservation 
readily appeared in the present opposition to "appeals," in which the judges 
had taken a leading part. Colden found the judicial situation comparable to 
that pictured by Lord Hale as existent in the county courts in England, with 
factions and alliances of bench and bar perverting administration of justice. 248 
From this abstract discussion of the interpretation to be placed on the instruction, 
we return to the instant case. Having received no relief from the 
colony council, Cunningham's attorney, on January 23, 1765, petitioned that 
body for an appeal to the King in Council, for suspension of execution, and 
for assignment of counsel. On February 6 the provincial council allowed petitioner 
copies of the proceedings, but as the members were still of the opinion 
that no such appeal lay to the Lieutenant-Governor and Council, they apprehended 
that they were not authorized to direct further on the petition, 
Colden dissenting from this resolution. 247 Toward the end of February, 
Colden made the extreme proposal to his council that they dismiss all pending 
cases in error and return the records to the court below for further proceedings 
therein. Reasons in writing for Colden's opinion that the Governor and Coun- 
245 Ibid., 696-97. The instruction read: "You 
are also to permit" (1 Labaree, Royal Instructions, 
#458). 
246 7 Doc. Rel. Col. Hist. N.Y., 697-98, 701. 
Cf. Conduct of Cadwallader Colden, op. cit., 
450-51, where remarks of William Smith, Jr., 
in his History of New York are turned against 
this antagonist. 
247 29 MS Mins. N.Y. Council, 58-59; Rep. 
Forsey v. Cunningham, 66-67. See also 2 
Journals General Assembly N.Y., 805; 7 Doc. 
Rel. Col. Hist. N.Y., 706-7; Letter Book of 
John Watts, 330.