petitioners would have been able to bring such judgment and the merits of 
the cause before the King in Council upon appeal by virtue of the additional 
instruction. But in the jury charge the judge, declining to proceed as requested, 
gave his ideas of the boundaries, and a general verdict was returned for defendant. 
Being thus precluded from bringing the merits of the cause before 
the King in Council, it was necessary to petition for relief otherwise. 287 
Nothing was made of the refusal to sign the third bill of exceptions. But the 
only Board of Trade report we have seen in the matter makes no mention 
of the complained-of conduct of the Supreme Court judges. 288 
From this discussion of Cunningham v. Forsey and its effects certain conclusions 
emerge. The case cannot be interpreted as a deliberate attempt of 
the English authorities to extend the scope of the review power of the Governor 
and Council, since the effort was solely of Colden's creation. The Board 
of Trade and the crown law officers declined to support Colden's interpretation, 
yet we must notice that the Lords Committee refrained from expressing 
any opinion until the matter came before it in a judicial capacity. Whether 
the Committee would have supported the Coldenite interpretation, an interpretation 
that coincided with some of its own expressed views as to the scope 
of appellate review, must remain a matter of conjecture. But credit for preventing 
the cause from coming before the Committee in a judicial capacity 
must rest with the New York Supreme Court. The case may be said to represent 
use of the common law to defeat efforts to extend conciliar jurisdiction, 
which inclined toward usage at variance with common law practice, into the 
colonies. The episode is one of the many facets of the struggle to maintain 
jury trial inviolate in the colonies. It also serves to illustrate the casualness 
with which imperial authorities drafted instructions which might effect hundreds 
of colonial causes. 
Cunningham v. Forsey had effects beyond the boundaries of New York. In 
Massachusetts it was used to support opposition to conciliar appeals in real 
actions. 289 Hutchinson, in August, 1771, questioned whether there would be 
any difficulty in conciliar cognizance of an appeal in Otis v. Robinson, a 
,£2,000 sterling judgment for assault and battery which depended wholly 
upon the question of evidence. He further questioned whether an appeal in 
an action of the same nature had not been dismissed. But Hutchinson felt 
that the charter provision would allow the appeal, making no capital of the 
different nature of the record in Massachusetts and in New York. 290 
287 CO 5/1078/UU 11. Cf. 31 MS Mins. N.Y. 
Council, 59 et seq., 69-70. 
290 27 MS Mass. Archives (Hutchinson Letters, 
1770-74), 210. For the circumstances 
of this cause see Pennsylvania Gazette, #2127; 
Sept. 28, 1769. 
288 8 Doc. Rel. Col. Hist. N.Y., 575 
289 22 MS Mass. Archives {Foreign Cones., 
'758-75), 544.