examined and such final order made thereon as was consonant with the common 
law of England. 257 Shortly thereafter, on September 24, the Board of 
Trade made a representation to the Council Board on drafts of instructions 
prepared for Sir Henry Moore, recently appointed governor of New York. 
As to the 32d article, the Board represented that it appeared that from the 
reign of James II to 1753 liberty of appeal from inferior courts to the Governor 
and Council had been confined by either commission or instruction to 
"cases of error only." By the 1753 alteration the express words confining appeals 
to "cases of error only" were omitted, but it did not appear that the 
change operated in any colony to vary or to create doubts as to the former 
practice until the recent assertions of Colden. It did not appear from the office 
records what particular reasons induced the alteration, but it was conceived 
that it was intended to avoid ambiguity as to whether liberty of appeal extended 
to criminal causes. It was further conceived that confining such appeals 
to cases of error only was so absolute a principle of law and so well established 
by usage and constitution of the kingdom that it was thought unnecessary 
to point it out by express language in the instruction. However, to 
re-establish peace in the province and to quiet the subjects' minds the words 
heretofore inserted were restored, thus expressly confining appeals in civil 
cases to the Governor and Council to "cases of error only." 258 
On October 3 the draft instructions for Governor Moore containing the 
alteration of the Board of Trade were referred by the Committee to the crown 
law officers. 259 Shortly before this, agent Charles, in behalf of the New York 
Council and Assembly, had petitioned the Privy Council to the same effect 
as in his earlier petition, but with no appreciable result. 260 Attorney General 
Yorke and Solicitor General De Grey, in their report of November 2, advised 
that no change be made in the instruction which might prejudice the pending 
appeal as an authoritative interpretation of the former instructional article. 
They were further of the opinion that the 1753 alteration did not vary the 
sense of the instruction as it stood previous to that time. The words "in cases 
of error only" appeared to have been struck out of the instructions as superfluous 
and improper. For, it was asked, in what cases could an appeal lie but 
"in cases of error only"? That is, error in law, upon the record of a judgment 
given in a court of common law, wherein according to English procedure the 
evidence of the facts upon which the jury gave their verdict did not appear, 
and errors both in law and fact upon the face of an interlocutory or decretal 
order of a court of equity, where the evidence was in writing and the court 
judges of both law and fact. The expression in the 37th article of the 1753 
257 PC 1/51. 
259 PC 2/111/370. 
260 PC 2/111/366. 
258 7 Doc. Rel. Col. Hist. N.Y., 762-63.