The Report of an action of assault, battery and wounding, tried in the Supreme Court of Judicature for the province of New-York, in the term of October 1764, between Thomas Forsey, plaintiff, and Waddel Cunningham, defendant.

The Report of an action of assault, battery and wounding, tried in the Supreme Court of Judicature for the province of New-York, in the term of October 1764, between Thomas Forsey, plaintiff, and Waddel Cunningham, defendant.

Table of contents

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Title page

PREFACE.

Thomas Forsey, against Waddel Cunningham. Report of an Action of Assault, Battery and Wounding, tried in the Supreme Court of New-York, October 1764.

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At a Council held at Fort-George, in the City of New-York, on Monday the Nineteenth Day of November, 1764. PRESENT, The Hon. Cadwallader Colden, Esq Lieut. Governor, &c. Mr. Horsmanden,Mr. Watts,Mr. De Lancey,Earl of Stirling,Mr. Apthorpe,Mr. Read. Waddel Cunningham, against Thomas Forsey.

At a Council held at Fort George, in the City of New-York, on Wednesday the Twelfth Day of December, 1764. PRESENT, The Hon. CADWALLADER COLDEN, Esquire, Lieutenant Governor, &c. Mr. WATTS,Mr. WALTON,Mr. DE LANCEY,Earl of STIRLING,Mr. APTHORPE,Mr. READE,Mr. MORRIS. Waddel Cunningham, against Thomas Forsey, ON APPEAL.

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At a Council held at Fort George, in the City of New-York, on Wednesday the 26th Day of December, 1764. PRESENT, The Hon. CADWALLADER COLDEN, Esquire, Lieutenant Governor, &c. Mr. WATTS,Mr. WALTON,Mr. DE LANCEY,Mr. READE,Mr. MORRIS. Waddel Cunningham, against Thomas Forsey, ON APPEAL.

At a Council held at Fort George, in the City of New-York, on Wednesday the 9th Day of January, 1765. PRESENT, The Hon. CADWALLADER COLDEN, Esquire, Lieutenant Governor, &c. Mr. WATTS,Mr. WALTON,Mr. DE LANCEY,Mr. READE,Mr. MORRIS. Waddel Cunningham. against Thomas Forsey, ON APPEAL.

At a Council held at Fort George in the City of New-York, on Friday the 11th Day of January, 1765. PRESENT, The Hon. CADWALLADER COLDEN, Esquire, Lieutenant Governor, &c. Mr. WATTS,Mr. WALTON,Mr. DE LANCEY,Earl of STIRLING,Mr. READE,Mr. MORRIS. Waddel Cunningham, against Thomas Forsey, ON APPEAL.

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At a Council held at Fort George in the City of New-York, on Wednesday the 23d Day of January, 1765. PRESENT, The Hon. CADWALLADER COLDEN, Esquire, Lieutenant Governor, &c. Mr. WATTS,Mr. DE LANCEYMr. READE,Mr. MORRIS. Waddel Cunningham, against Thomas Forsey.

At a Council held at Fort George, in the City of New-York, on Wednesday the 6th Day of February, 1765, PRESENT, The Hon. CADWALLADER COLDEN, Esquire, Lieutenant Governor, &c. Mr. WATTS,Mr. WALTON,Mr. DE LANCEY,Mr. READE,Mr. MORRIS. Waddel Cunningham, against Thomas Forsey.

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REPORT OF THE CASE BETWEEN Thomas Forsey, AND Waddel Cunningham.

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THE REPORT of an ACTION OF Assault, Battery and Wounding, TRIED IN THE SUPREME COURT of JUDICATURE FOR THE PROVINCE OF NEW-YORK, In the TERM of OCTOBER 1764, BETWEEN Thomas Forsey, Plaintiff, AND Waddel Cunningham, Defendant.

NEW-YORK: Printed by JOHN HOLT, in the Year 1764.

PREFACE.

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AS it is not the Design of the following Sheets to cast the popular Odium on either of the Parties, but merely to expose the Attempt to obtain Redress in behalf of the Defendant, and in his Absence, against a legal Determination of the Suit, by a Method entirely new, unconstitutional and illegal; a particular Detail of the Evidence on both Sides is carefully avoided.

The strange and unnatural Construction which has been lately given to his Majesty's Royal Order, with a View to countenance the Appeal sought for in behalf of the Defendant, and the dangerous Tendency of such a Construction, are the Objects which the Editor has in View. This Construction must indeed be alarming to every British Subject; who, among the many invaluable Privileges, by which he is distinguished from the Subjects of other Princes, will naturally esteem a Trial by his Peers as one of the greatest — In short it is a Construction which subverts the antient and fundamental Law of the Land, renders all Property in the Colonies precarious and of little Value, and the Method of obtaining Justice extremely dilatory, and extensively ruinous to the Litigants.

But to shew the pernicious Consequences of this Construction, Arguments need not here be urged — His Honour the Chief Justice has, in the legal Discharge of his important Trust, assigned such Reasons, as must be sufficient to expose the false and pernicious Doctrine, that the Crown by its Instruction designed to change the Laws of the Land, or to execute Justice by other Means than are known in the Mother Country.

[Page]As such of the Proceedings in this Cause as are here submitted to the public Scrutiny, were had in the King's Courts of Justice; [...] Editor thought it his Duty, to improve the Opportunity which the Law gives him, of commanding authenticated Copies, to communicate them to the World. By this Means, as well those who are entitled to enjoy, as those whose Duty it is to protect them in the Possession of, their invaluable Rights and Privileges, may be apprised of this unexampled Attempt to divert the Channel of Justice.

Thomas Forsey, against Waddel Cunningham. Report of an Action of Assault, Battery and Wounding, tried in the Supreme Court of New-York, October 1764.

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THIS Suit was brought for a violent Assault, Battery, and Wounding, committed by the Defendant on the Plaintiff, on the 28th Day of July 1763. The Chief Justice, on a Petition and Affidavit of the Violence of the Battery, gave his Order for holding the Defendant to Bail, in £.5000.

Upon the Return of the Writ in October Term 1763, the Plaintiff declared, in the usual Form; and after an Imparlance to January Term following, the Defendant pleaded the general Issue, Not Guilty.

In April Term 1764, the Defendant moved the Court for a struck Jury, which Motion was granted, and a Jury was accordingly struck during the Term.

In October Term following, the Cause came on regularly, to be tried by the Jury that had been struck at the Defendant's Request.

[Page]The Trial lasted near twelve Hours, in the Course of which, the Proof of the Battery was so full and clear, that the Defendant relied only on some Evidence in Mitigation of Damages, in the Production of which, the fullest and fairest Scope was given to him.

There were three Gentlemen, of Council for the Plaintiff, and four for the Defendant; the Witnesses on both Sides were very fully and circumstantially examined, and the Evid [...]nce as fully and circumstantially summed up by the Council, for both Parties: The Jury went from the Bar late in the Evening, and returned to it the next Morning with their privy Verdict; by which they found the Defendant Guilty of the Trespass, Assault, Battery and Wounding charged in the Plaintiff's Declaration; and assessed the Plaintiff's Damages, at one thousand five hundred Pounds, and his Costs at six Pence.

On Saturday, the last Day of the Term, the Defendant's Council moved the Court, to set aside the Verdict, for the Largeness of the Damages; but the Court conceiving that the Damages were not excessive, rejected the Motion, and ordered Judgment to be entered for the Plaintiff. The Defendant being absent beyond Sea, Robert R. Waddel who acts for him under a Letter of Attorney, then came up to the Bench; and presented to the Judges, a Petition to admit an Entry of an Appeal to the Governor and Council, and a Bond with Security, as grounded upon the Instruction. The Court suffered no Entry to be made, and returned the Papers; declaring no such Appeal would lie, and that the Instruction was not designed to favour any other, than a Removal by Writ of Error—The Instruction is in these Words.

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Our Will and Pleasure is, that you or our Commander in Chief of our said Province for the Time being, do in all civil Causes on Application being made to you, or the Commander in Chief for the Time being for that Purpose, permit and allow Appeals from any of the Courts of common Law in our said Province, unto you or the Commander in Chief, and the Council of our said Province; and you are for that Purpose to issue a *Writ in the Manner which has been usually accustomed, returnable before yourself and the Council of our said Province, who are to proceed to hear and determine such Appeal; wherein such of our Council as shall be at that Time Judges of the Court, from whence such Appeal shall be so made to you our Captain General, or to the Commander in Chief for the Time being, and to our said Council [Page] as aforesaid, shall not be permitted to vote upon the said Appeal; but they may nevertheless be present at the hearing thereof, to give the Reasons of the Judgment given by them in the Causes wherein such Appeals shall be made. Provided nevertheless that in all such Appeals, the Sum or Value appealed for, do exceed the Sum of three hundred Pounds Sterling, and that Security be first duly given by the Appellant, to answer such Charges as shall be awarded, in Case the first Sentence be affirmed; and if either Party shall not rest satisfied with the Judgment of you or the Commander in Chief for the Time being and Council as aforesaid, Our Will and Pleasure is, that they may then appeal unto us in our Privy Council; Provided the Sum or Value so appealed for unto us, exceed five hundred Pounds Sterling, and that such Appeal be made within fourteen Days after Sentence, and good Security given by the Appellant, that he will effectually prosecute the same, and answer the Condemnation; as also pay such Costs and Damages as shall be awarded by us in Case the Sentence of you or the Commander in Chief for the Time being and Council, be affirmed: Provided nevertheless, where the Matter in Question relates to the taking or demanding any Duty payable to us, or to any Fee of Office or annual Rent, or other such like Matter or Thing, where the Rights in Futuro may be bound, in all such Cases you are to admit an Appeal to us in our Privy Council, though the immediate Sum or Value appealed for, be of a less Value, and it is our further Will and Pleasure, that in all Cases where by your Instructions you are to admit Appeals to us in our Privy Council, Execution be suspended until the final Determination of such Appeals, unless good and sufficient Security be given by the Appellee, to make ample Restitution of all that the Appellant shall have lost by Means of such Judgment or Decree, in Case upon the Determination of such Appeal, such Decree or Judgment should be reversed, and Restitution awarded to the Appellant.

A true Copy, examined by Gw. BANYAR, D. Cl. Con.

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No other than a Writ of Error, has ever been until the present Instance, issued in this Province.

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A few Days after, the Costs de Incremento were taxed, and Judgment signed by Mr. Chief Justice; but before finishing the Taxation, he was served with an Instrument in writing, under the Great Seal of the Colony, in the Words following.

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GEORGE the Third, by the Grace of GOD, of Great-Britain, France and Ireland, King, Defender of the Faith, &c.

To our Chief Justice and other our Judges of our Supreme Court of Judicature for our Province of New-York, in North America; and to all and every our Officers of the same Court, either Judicial or Ministerial, and to every of them as well as to all others whom it may concern, GREETING:

WHEREAS of our Royal Dignity and by our Instructions to our Captain General and Governor in Chief of our Province of New-York aforesaid for the Time being, ALL APPEALS from any of our Courts of Law within the said Province should be heard and determined before our said Governor and Council; and now, on the Part of Waddel Cunningham, against whom a Verdict was given in a Plea of Trespass and Assault, at the Suit of Thomas Forsey, at our Supreme Court, holden for our said Province of New-York, the Twenty sixth Day of Octo. Instant; we command you and every of you, therefore, that you and every of you, wholly forbear proceeding or taking any Step further against the said Waddel Cunningham, on the said Verdict, until the Cause and Merits thereof be heard before our Governor and Council of the Province of New-York aforesaid, (agreeable to, and in Conformity with our said Royal [...]ctions as aforesaid, bearing Date the Sixth Day of July, one thousand seven hundred and sixty-one, in the first Year of our Reign) as you will answer the same at your Peril; nor shall you in any wise omit acquainting him the said Thomas Forsey herewith, returnable in Fourteen Days from the Date hereof, before our Governor and Council at Fort George, in the City of New-York, in our Province of New-York aforesaid, where you shall then have this Writ. WITNESS the Honourable CADWALLADER COLDEN, Esq at our Fort in New-York aforesaid, the thirty-first Day of October, in the year of our Lord, one thousand seven hundred and sixty-four, and in the fifth Year of our Reign.

A true Copy examined with the Original, By Gw. BANYAR, D. Cl. Con.

The Chief Justices proceeded to finish the Taxation, notwithstanding the Service of this Instrument, and signed the Judgment. This Instrument was also served on the Clerk of the Supreme Court, who in Consequence thereof refused to seal the Plantiff's Execution, which was tendered to him for the Purpose; and by this Means the Plaintiff is hitherto prevented from levying his Damages and Costs. A few Days [Page] after, another Instrument, under the same Seal, was served on the Chief Justice, in the Words following,

GEORGE the Third, by the Grace of GOD, of Great-Britain, France and Ireland, King, Defender of the Faith, &c, To our Chief Justice and other the Judges of our Supreme Court of Judicature, for our Province of New-York, in North-America, and to all other the Officers of our same Court, whom it shall or may concern, GREETING: WHEREAS by our Writ to you, and every of you directed, we lately commanded you, that all further Proceedings should be stay'd on the Verdict, obtained against Waddel Cunningham, at the Suit of Thomas Forsey, on a certain Plea of Trespass and Assault, tried by the Jurors of our Sovereign LORD, the now King, at our last Supreme Court, holden for our Province aforesaid, until the Merits and Matter thereof should be heard before our Governor and Council of our said Province, for the Time being, (agreeable to our Royal Instructions, in the said Writ mentioned) on the Appeal of the said Waddel Cunningham; in Consequence whereof, and for the fully enabling our said Governor and Council, to determine the Matter of the said Verdict; We further command and strictly enjoin you, and every of you, that laying aside all other Matters and Things whatsoever, you cause all and every the Proceedings against the said Waddel Cunningham, whether by Bill, Plaint, or otherwise, whereon the said Verdict was obtained, to be brought before our said Governor and Council, at Fort-George, in our City of New-York, and Province aforesaid, at the Return of the said Writ, being the fourteenth Day of this Instant November, as you will answer the Neglect at your Peril; and that you have then there this Writ, returnable on the same Day, and at the same Place. WITNESS the Honourable CADWALLADER COLDEN Esquire, our Lieutenant Governor, and Commander in Chief of our Province of New-York aforesaid, the second Day of November, in the Year of our Lord, one thousand seven hundred and sixty four, and in the fifth Year of our Reign.

The Chief Justice, on the Day mentioned for their Return, delivered the two Instruments to the Lieutenant Governor and Council, and assigned his Reasons for not returning them in Form, and requested Time [Page] to reduce those Reasons to writing, which he afterwards delivered in, to the Governor and Council.

But that they may have their proper Weight, it seems expedient to prefix to them the Oath which the Judges take at the Time of their Appointment, which is in these Words.

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YE shall swear, that well and lawfully ye shall serve our LORD the King and his People, in the Office of Justice, and that lawfully ye shall counsel the King in his Business, and that ye shall not Counsel nor assent to any Thing which may turn him in Damage or Disherison by any Manner, Way, or Colour, and that ye shall not know the Damage or Disherison of him, whereof ye shall not cause him to be warned by yourself, or by other; and that ye shall do equal Law and Execution of Right to all his Subjects, rich and poor, without having Regard to any Person; And that you take not by yourself, or by other, privily, nor apertly, Gift, nor Reward, of Gold nor Silver, nor of any other Thing which may turn to your Profit, unless it be Meat or Drink, and that of small Value, of any Man that shall have any Plea or Process hanging before you, as long as the same Process shall so be hanging, nor after, for the same Cause; and that ye take no Fee, as long as ye shall be Justice, nor Robes of any Man, great or small, but of the King himself; and that ye give none Advice, nor Counsel to no Man, great nor small, in no Case where the King is Party; And in case that any of what Estate or Condition they be, come before you in your Sessions with Force and Arms, or otherwise, against the Peace, or against the Form of the Statute thereof made, to disturb Execution of the common Law, or to menace the People, that they may not pursue the Law, that ye shall cause their Bodies to be arrested and put in Prison; and in Case they be such that ye cannot arrest them, that ye certify the King of their Names, and of their Misprision hastily, so that he may thereof ordain a convenable Remedy; And that ye by yourself, nor by other, privily nor apertly maintain any Plea or Quarrel hanging in the King's Court, or elsewhere in the Country, And that you deny to no Man common Right, by the King's Letters, nor none other Man's, nor for none other Cause, and in Case any Letters come to you contrary to the Law, that ye do nothing by such Letters, but certify the King thereof; and proceed to execute the Law—notwithstanding the same Letters; and that ye shall do and procure the Profit of the King and of his Crown, with all Things[Page]where ye may reasonably do the same; and in Case ye be from henceforth found in Default in any of the Points aforesaid, ye shall be at the King's Will, of Body, Lands and Goods, thereof to be done as shall please him.

So help you GOD.

The above is a true Copy of the Oath administered to, and taken by the Judges of the Supreme Court of the Province of New-York, in April, 1763. Examined with the Records in Lib. Commissions, C. Page 250.

Examined this 1st November, 1764.

By Gw. BANYAR, D. Secr'y.

The Steps taken on the Exhibition of the Chief Justice's Reasons, and the Reasons themselves will appear, from the following Minutes of that Day.

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At a Council held at Fort-George, in the City of New-York, on Monday the Nineteenth Day of November, 1764. PRESENT, The Hon. Cadwallader Colden, Esq Lieut. Governor, &c. • Mr. Horsmanden, , • Mr. Watts, , • Mr. De Lancey, , • Earl of Stirling, , • Mr. Apthorpe, , and • Mr. Read. 
Waddel Cunningham, against Thomas Forsey.

MR. Chief Justice read and delivered into the Court, his Reasons for not making Return on the Writs issued in this Cause, and then withdrew. Which Reasons were ordered to be entered, and are as follow:

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REASONS offered by Daniel Horsmanden, Esq Chief Justice of the Province of New-York, to his Honour the Lieutenant Governor and the Honourable His Majesty's Council for the said Province, against returning an Instrument under Seal, whereby all Proceedings on the Verdict lately obtained by the said Thomas Forsey, against the said Waddel Cunningham in the Supreme Court, are commanded to be stayed, and another Instrument under Seal, whereby the Justices of the said Supreme Court are commanded to cause the Proceedings whereon the said Verdict was founded, to be bro't before tne Lieutenant Governor and the Council.

I beg Leave to perfix a State of the Proceedings between the Parties, not only, the more clearly to avail myself of those Reasons, but also, in Compliance with my Oath of Office, by which I am bound to certify the King's Majesty, of the Proceedings, on which those Instruments (which I consider as Letters in Delay of Justice) are said to be grounded.

On Wednesday last, I brought into this Court those Letters, and as both the Prohibition, and Command, appeared to me unwarrantable, I thought it my Duty to obey neither, but to lay the Instruments before you, and to assign my Reasons, for the Part I acted, on this new, and extraordinary Occasion. —The Liberty you gave me to reduce the Substance of what I then offered to Writing, as it affords me an Opportunity, to express myself with greater Perspicuity, is an Indulgence, for which I return your Honour and the Council my hearty Thanks.

The Suit which occasioned those Letters to the Judges (for they are directed to us all) was an Action of Trespass brought in the Supreme Court; in which the Plantiff Forsey declared for an Assault, Battery, and wounding, to his Damage £.5000; upon which the Cause was at issue on the Plea of not Guilty; and the Jurors in the last Term of October, found for the Plantiff, and assessed his Damages at £. 1500.

The Pannel consisted of a special Jury of Freeholders, at the Defendant's Request —No Challenges were made to either of them— The Trial took up twelve Hours — No Evidence that was offered, by either Party was refused to be admitted by the Court — All the Judges were upon the Bench —The Plantiff had three, and the Defendant four Gentlemen attending as their Council —The Proofs were largely [Page] summed up on both Sides; and the Bar, and Country, must unanimously declare, that the Trial was regular, and solemn; and conducted with the utmost Fairness and Deliberation.

On the 27st of the Month, tho' the last Day of the Term, on which no special Motions are made, the Council for the Defendant were indulged with a Motion for a new Trial. But no Reason being assigned, but a Complaint that the Damages were excessive (which did not appear to the Court to be well founded) and the Trespass being very atrocious, and the Proofs clear, the Court over-ruled the Motion.

It affords strong Ground of Presumption that the Process and Pleadings are regular, since no Writ of Error has been yet offered to us — The Verdict of the Jury must therefore be the sole Cause of Complaint; and Relief against that, is now expected from your Honours.

This seems to be founded upon an erroneous Interpretation of the thirty second Instruction, given by his Majesty to the Governor of this Province: A Construction which I could not countenance, by an Obedience to the Letters sent to me; for the following Reasons,

I. Because it supposes the Royal Order to aim at altering the antient and wholesome Laws of the Land.

By the common Law of England the Trial of Facts is entrusted to the Jury; and the Power to declare the Law upon them, is committed to the King's Judges—These are distinct Provinces; and the Limits between them guarded by invariable Usage and the most incontestible Authorities—The Errors of the Judges may be corrected by superior Judicatories; as for Instance, those of the King's Bench in the Exchequer Chamber, and by the House of Peers—But in all those Removes, the Verdict of the Jurors suffers no Re-examination, but is final and decisive:—This is the Law at Home.

The Supreme Court here proceeds in the Main, according to the Practice of the Courts at Westminster; and the Common Law of England, with the Statutes affirming, or altering it, before a Legislature was established here, and those passed since such Establishment, expressly extended to us, with our legislative Acts (which are not to be repugnant to the Laws of England) constitute the Laws of this Colony: And tho' there are many Instances of Judgments, reversed and affirmed, [Page] in a Course of Error, before the Governor and Council, I do affirm, with the highest Confidence, that not one Verdict was ever re-examined by any superior Judicatory in the Province.

An Attempt then to re-examine the Verdict of a Jury, is repugnant to the Laws, both of England and this Colony — This is well known to the Crown;—and to suppose that his Majesty designed to change the Law, and that too in one of its most important Articles, is certainly absurd, and being dangerous both to the Prerogatives of the Crown and the Liberty and Safety of the Subject; it is in my humble Opinion highly criminal to assert, that the King's Order has any such Aim. Nor,

II. Is there any Shadow of Reason, from the Words of the Instruction, to countenance such a bold Interpretation.

'Tis true, the Governor is to permit and allow Appeals from the Courts of common Law; and who can deny, but that in Common Speech, the bringing of a Writ of Error, as it carries the Cause from a lower to a superior Tribunal, is an Appeal?—And surely that must be the best Explication, which satisfies the Term, without altering the Law; especially if we consider that the Royal Instructions, given before the Year 1753, adopted that very Term, as applicable to Cases of Error, the Words of the former Instructions running thus: You are ‘to allow Appeals, in Case of Errors, from any of the Courts of Common Law’ and that such is the meaning of the Appeals mentioned in the present Instruction as it is understood by his Majesty in Council, will appear from the case of Gordon —and Lowther, 2d Lord Raymond 1447. Add to this that the present Instruction, does itself refute the Interpretation upon which this Measure is founded; for you'll be pleased to observe,

1st. That the Truth is, that all the Appeals we have had (I except none) have been in Error, and prosecuted by Writs of Error, and it being his Majesty's Pleasure that the Governor upon Appeals shall ‘issue a Writ in the Manner which has been usually accustomed.’ No other Appeal, than by such Writ, is directed.

2dly. The Judges of the Supreme Court, though Members of the Council, are forbid to Vote on the Decision above: [Page] for which I can assign no other Reason, than because they are supposed to have prejudiced the Cause, especially as Leave is nevertheless given them, to render the Reasons of their Judgment, as the Judges do in England, upon Error brought before the Peers. And as they are only Judges of the Law and not Triers of the Facts; these Clauses evidently imply, that the Appeal given, is only in Error, and not upon the Verdict of the Jury.

Besides this, numberless Objections against a contrary Construction may be drawn ab Inconvenienti,—Permit me to mention a few;

I. Who is ignorant that in the Courts of Common Law, the Evidence of the Witnesses to the Jury, is all viva voce?— It results therefore, that they can transmit nothing but a Transcript of the Record, which contains no Part of the Proofs—The Court above, remains then uninformed of the Facts upon which The Verdict was given, and cannot adjudge upon them without a Re-examination of the Witnesses, against that Attempt several Objections instantly occur.—I will hint at but two;

1st. The Cause must be made Res integra: For the Want of written Memorials of the first Evidence, renders it impossible to confine the Proofs above, to what they were in the first Production to the Jury. — And so the Trouble and Charge of the Trial to the Parties, Court and Country, were all to no Purpose,—And,

2dly. It tends to open a Flood-Gate to Perjury:—For both Parties being now apprised of the Proofs which were secret 'till the first Trial, every Effort will be made to blacken the Character of the most material Witnesses, and to supply all former Deficiencies.

And from these Sources such Streams will flow, as would extort the Groans of all, who delight in the due Administration of Justice.

IIdly. The Appeal contended for, impeaches the Wisdom of our Law in that distinguishing Article of Trials by Jury; since all Verdicts in Causes above the Value of £. 300 Sterling would be worse than in Vain.

[Page]IIIdly. It will encourage a Spirit of Litigiousness; and introduce Idleness, to the Ruin of many Families, and the great Impoverishment of the Country.

IVthly. The Expence attending such Appeals will be intolerable— As the Proofs before the Governor and Council must necessarily be reduced to Writing, to Form what Civilians call the Apostella, for the next Remove of the Cause to his Majesty in privy Council; It will follow, that according to their Usage, there must also be Interrogatories, cross Interrogatories, Examinations, and cross Examinations, and the Production of Exhibits— And he that is acquainted with the Process of the civil Law Courts, will readily agree, that the Evidence introduced on a common Law Trial, of Twelve or Twenty-four Hours, especially, when Titles to real Estates are in Question, and Deeds offered, will, if reduced to Writing, swell the Apostels, to a Size so enormous, that the Trouble and Cha [...]g [...] of [...], will often surpass the Value of the Thing in demand. And it may be of Use to observe here, (as a farther Proof, that it was not the Object of the Instruction, to allow Appeals upon the whole Merits;) that you have not Officers to transact the Business, that would thereby be introduced; the Court of the Governor and Council, having neither a Register, nor Examiner, to this Day, appointed by the Crown.

V. It would be impossible for those Courts of Appeal to discharge the Duty to which they would in such Case be obliged. — The Governor and Council must sit de Die in Diem all the Year round, for the Business of their Colony — And how then can his Majesty in privy Council, besides attending to the arduous Affairs of his Kingdoms, examine all the tedious Complaints brought up from all the Provinces for his Royal Decision?

VI. To what an amazing Insecurity and Danger must the Subject according to this Project, be reduced and exposed?

Let me specify a few Instances;

1st. As the Expence, so the Delays, will be infinite—How great then the Encouragement for Contention? What wrongful Possessor and debauched Tenant, will give up his unjust Defence? What Trespasser will pay the Damages of an injured Plantiff, when as in this Case, the [Page] Death of either Party is the perpetual Extinction, not only of the Suit depending, but the very Cause of Action? What Loser will not appeal upon the bear Presumption that the first Witnesses against him may be dead, or absent, on the new Trial?

2d. Witnesses of good and bad Characters, will have, in Effect, equel Credit with the Judges; for they and those by whose Testimony they are to be supported, or discredited, will all be unknown by the Judges, who are to pronounce upon their Evidence on Appeal.

3d. New Modes of introducing Proof will necessarily establish new Rules relative to them; and as all special Laws, cannot be foreseen nor provided for; the Subject will be tried by new Laws, and often by Laws unpromulged; or to speak more properly, by the Dictate of Power without Law.

These are some of the Reasons which induce me to be of Opinion, that the King's Instructions do not countenance the Exercise of any Judicial Authority to reverse the Verdict of a Jury: — And as they give me the fullest Satisfaction,—I shall forbear assigning any other, tho' there are many — The first is sufficient for us, who sit as Judges — The Law warrants no such Letters, as those which the Defendant sued out, and delivered to me — We have taken the Oath, prescribed by the Statute of the 18 of Ed. 3. and have sworn ‘to deny no Man common Right, by the King's Letters, nor none other Man's, nor for none other Cause, but to proceed to execute the Law notwithstanding the same Letters.’

Upon the whole therefore, I cannot avoid complaining of these Letters, as an unwarrantable Abuse of the King's Name, and his Judges— He that sued them out did it at his Peril, and ought to answer the Contempt.—They are not only against Law, but couched in Term [...] very disrespectful: We are commanded to obey at our Peril; and as an Outrage upon all the Rules of Decorum, one Part of the abject Duty injoined upon us is, to notify the Plantiff, Forsey, even of the Indignity offered us.

I have only to add, that as the Power of administring Justice, is one of the most important of all Powers, it ought not to be assumed without the clearest Authority—None of your Predecessors ever heard an Appeal from the Verdict of a Jury—My long Residence in the Colony, and Seat on the Bench, and at the Board of Council, have given me Opportunities for some considerable Experience; and I know of no [Page] Attempt 'till this, to bring such an Appeal: And from the Refusal of Counsel to support the Defendant's Application, you may naturally conclude, that the whole Body of the Law consider it as illegal —Whether a single Word in the Royal Instructions will warrant your assuming this great and important Power, I submit to your own Deliberations; not doubting but that many Objections will arise in your own Minds, which have been omitted by me, and might have been suggested by my Brother Justices, who are now unfortunately all out of Town.

19th November, 1764.

DANIEL HORSMANDEN.

Whereupon a Motion was made, that the other Judges of the Supreme Court, to whom the said Writs were also directed, might be desired to give the Reasons of their Conduct — Resolved in the Affirmative; and the Reasons of the Conduct of the other Judges, are hereby desired to be given to this Court accordingly—And it being then moved that the Opinion of some of the Gentlemen of the Law might be desired on the following Question; ‘Whether a Court can, by the Crown, be legally constituted in this Colony, to hear civil Causes, in a Way of Appeal, from a Common Law Court, according to the Course of the civil Law, upon the whole Merits, and re-examine the Evidence given to a Jury, and reverse, or controul their Verdict?’

The Opinions of Messieurs Livingston, Smith, jun. Hicks, Scott, and Duane, were desired on the said Question; and the said Gentlemen, (except Mr. Hicks who was not present) in Court, severally delivered their Opinion in the Negative.

Whereupon it was moved, that the Attorney General might deliver his Opinion, on this Question;—

Whether the Crown has by the Thirty-second Instruction, constituted a Court in this Colony, to hear civil Causes, in a Way of Appeal from the Courts of Common Law, according to the Course of the civil Law, upon the whole Merits, and re-examine the Evidence given to a Jury, and reverse or controul their Verdict?

And the Attorney General being ordered to give his Opinion on the said Question, He declared he was of Opinion, the Crown meant by the Thirty second Article of its Instructions, to constitute the Governor and Council a Court of Errors, and not a Court of Appeals in the Latitude the Question supposes.

A true Copy, examined by Gw. BANYAR, D. Cl. Con.

[Page]

At a Council held at Fort George, in the City of New-York, on Wednesday the Twelfth Day of December, 1764. PRESENT, The Hon. CADWALLADER COLDEN, Esquire, Lieutenant Governor, &c. • Mr. WATTS, , • Mr. WALTON, , • Mr. DE LANCEY, , • Earl of STIRLING, , • Mr. APTHORPE, , • Mr. READE, , and • Mr. MORRIS. 
Waddel Cunningham, against Thomas Forsey, ON APPEAL.

A Letter from Mr. Justice Jones was read, informing his Honour the Lieutenant Governor, and the Gentlemen of the Council, that the Writs referred to in the Order, by which he is desired to give the Reasons of his Conduct, had not been delivered to him, nor had he seen any such in the Hands of any other Person; and therefore, that it is impossible for any Man to give the Reasons of his Conduct, in a Matter that never fell under his Consideration: Whereupon it is the Opinion of this Court, that Mr. Justice Jones be desired, and he is hereby desired to give his Reasons to this Court, on Wednesday the 26th Instant, why the Appeal moved for in this Cause, in the Court below, was not allowed; or whether according to the Laws and Constitution of England, an Appeal from the Verdict of the Jury, on the whole Merits of this Cause, could lie? And it is ordered that a Copy hereof be served on Mr. Justice Jones.

[Page]Then Mr. Justice Smith was desired, pursuant to the Request in Council, of the 10th of November last, to give the Reasons of his Conduct, &c.

Whereupon he spoke to the Effect following;

THAT having been out of Town, on the 19th of November last, he had had no other Notice of the Request in Council, than by perusing a Copy of the Minute of that Day, attested by the Clerk; but being by his Seat in Council, obliged to assist in Government when called; and by his Office as Justice, to be of Council for the King, and accountable for his Conduct in the Supreme Court; he was willing, without any Delay, to Answer any Question that might reasonably and lawfully be proposed to him. To this End, finding the Question as connected with the preceding Matter so general, that were he to give his Answer in Terms as general as the Question, he conceived he should Disappoint the just and reasonable Expectation of this Honourable Court. Therefore, he had considered the Matter more at large, than would strictly suffice to answer that Question in the Terms proposed; and hoped he was able to Answer immediately, any particular Question upon the subject Matter then depending, relating to his Conduct in the Supreme Court.

Whereupon the said Justice was desired by the Court, to give his Reasons why he did not allow the Appeal in the Behalf of Waddel Cunningham, at the Suit of Thomas Forsey, from the Verdict in that Cause, to the Governor and Council, and Cause the same to be entered there as had been moved.

To which he answered:

That the Appeal from the Verdict of a Jury, was what the Supreme Court could take no Notice of. Because,

FIRST, The Judges by their Commission, were only constituted Judges of Law, and limitted in their Proceedings by the course of Practice, in three of the great Courts of Law at Westminster, and no Appeal from any Verdict, taken in either of those Courts, was ever known to have been allowed or entered there.

To Evince this, he prayed that his Commission might be read from the Record, which was accordingly read in the Words following, to wit:

[Page]

§

GEORGE the Third, by the Grace of GOD, of Great Britain, France, and Ireland, King, Defender of the Faith, and so forth.

To our trusty and well beloved William Smith, Esq GREETING:

We reposing especial Trust and Confidence in your Loyalty, Learning, and Integrity; have assigned, constituted, and appointed, and we do by these Presents, assign, constitute, and appoint you, the said William Smith, to be our third Justice of our Supreme Court of Judicature, of and in our Province of New-York in America; giving, and by these Presents granting, unto you the said William Smith, full Power and Authority in our said Supreme Court, to hear and determine all Pleas whatsoever, civil, criminal, and mixed, according to the Laws, Statutes, and Customs, of that Part of our Kingdom of Great Btitain, called England, and the Laws of our said Province of New-York, not being Repugnant thereto; and Executions of all Judgments of our said Court, to award; and to act and do all Things which any of our Justices of either Bench, or Barons of the Exchequer, in that Part of our Kingdom of Great Britain, called England, may or ought to do; and to make such Rules and Orders in our said Court, as shall be judged Convenient and Useful, and as near as may be, agreeable to the Rules and Orders of our Courts of King's Bench, Common Pleas, and Exchequer, in that Part of our Kingdom of Great Britain called England. To have and to hold the said Office, and Place of third Justice, of our said Supreme Court, of and in our said Province of New-York, in America; with all and singular the Rights, Privileges, Advantages, Saleries, Profits, Fees, and Perquisites, unto the said Office of third Justice belonging, or in any Wise apurtaining, or which of Right ought to belong or appertain to the said Office, in as full and ample Manner, as any third Justice of our said Supre [...] [...]rt, heretofore hath, or of Right ought to have enjoyed the same, to you the said William Smith, for and during our Pleasure. In Testimony whereof, we have caused these our Letters to be made Patent, and the great Seal of our Province of New-York, to be hereunto affixed. WITNESS our trusty and well beloved Robert Monckton, Esq our Captain General and Governor in Chief, in and over our Province of New York, and the Territories depending thereon in America; Vice Admiral of the same, and Major-General of our Forces, by and with the Advice of our Council of our said Province, at our Fort in our City of New York, the sixteenth Day of March, in the Year of our Lord, One Thousand Seven Hundred and Sixty-three, and of our Reign the Third.

CLARKE.

[Page]Upon which Commission, the said Justice observed, that as he was constituted a Justice of the Supreme Court, and that the Power and Authority granted to him, was to hear, try, and determine, according to the Laws, Statutes, and Customs, of that Part of the Kingdom of Great Britain called England; it was plainly a Law Commission, and that he was only authorized and empowered to award Executions of all Judgments of the said Court, and to act and do, all Things which any of his Majesty's Justices of either Bench, or Barons of the Exchequer, in that Part of the Kingdom of Great Britain called England, might or ought to do; and to make such Rules and Orders in the said Court, as should be judged Convenient and Useful; and as near as might be, agreeable to the Rules and Orders of the Courts of King's Bench, Common Pleas, and Exchequer in England. But unless it did appear, that these Courts allowed Appeals from Verdicts taken in those Courts, which he was very sure they did not, he did not see it possible for the Judges of the Supreme Court of this Province to allow such an Appeal in that Court, without doing what their Commissions would not Warrant. And upon this Commission, limitting his Power to the Rules of the common Law, he grounded his first Reason, why he did not allow the Appeal from the Verdict, as prayed to be entered in the Supreme Court.

The said Justice also observed, as a second Reason for his Conduct, that formerly it had been practised, that the Justices of the Supreme Court, who had held their Offices by like Commission with his, had only been sworn as to their Oath of Office, by such general Words as these:

‘Ye swear, that you will well and truly execute the Office of a Justice of the Supreme Court, according to the best of your Skill and Understanding. So help you God.’

But the Chief Justice, Mr. Justice Livingston, and himself, being desired to attend the Governor, to take the Oaths appointed by Law, and receive their Commissions, and being willing, (if they accepted those Commissions) not to want any legal Qualification, and to give all the Security to his Majesty and the People of this Province, which the Law required for the due Execution of the said Offices, informed Governor MONCKTON, who disliked that general Form, that there was a more extensive Oath proposed in the Books, and mentioned the Oath in the [Page] 18th of Ed. III. often referred to upon this Subject, which they produced, alledging, that it required some Explanation, and the concluding Words, which contained an Invocation (as used in the Church of Rome), of the help of all Saints, must be altered, because their Religion as Protestants, and the Declaration enjoined by Law, declared such Invocation to be Superstitious and Idolatrous. The fixing and settling the Explanation, and the said Alteration, took up three or four Days, and at length, it was taken with such Explanation, as had been given and agreed to, according to the Words in the Book, which are also entered upon Record, which the said Justice prayed might be read, which was Read accordingly, in the Words following, to wit:

‘YE shall swear, that well and lawfully ye shall serve our LORD the King and his People, in the Office of Justice, and that lawfully ye shall counsel the King in his Business, and that ye shall not Counsel nor assent to any Thing which may turn him in Damage or Disherison by any Manner, Way, or Colour, and that ye shall not know the Damage or Disherison of him, whereof ye shall not cause him to be warned by yourself, or by other; and that ye shall do equal Law and Execution of Right to all his Subjects, rich and poor, without having Regard to any Person; And that you take not by yourself, or by other, privily, nor apertly, Gift, nor Reward, of Gold nor Silver, nor of any other Thing which may turn to your Profit, unless it be Meat or Drink, and that of small Value, of any Man that shall have any Plea or Process hanging before you, as long as the same Process shall so be hanging, nor after, for the same Cause; and that ye take no Fee, as long as ye shall be Justice, nor Robes of any Man, great or small, but of the King himself; and that ye give none Advice, nor Counsel to no Man, great nor small, in no Case where the King is Party; And in Case that any of what Estate or Condition they be, come before you in your Sessions with Force and Arms, or otherwise, against the Peace, or against the Form of the Statute thereof made, to disturb Execution of the common Law, or to menace the People, that they may not pursue the Law, that ye shall cause their Bodies to be arrested and put in Prison; and in Case they be such that ye cannot arrest them, that ye certify the King of their Names, and of their Misprision hastily, so that he may thereof ordain a convenable Remedy; And that ye by yourself, nor by other, privily nor apertly maintain any Plea or Quarrel hanging in the King's Court, or elsewhere in the Country, And that you deny to no Man common Right, by the [Page]King's Letters, nor none other Man's, nor for none other Cause, and in Case any Letters come to you contrary to the Law, that ye do nothing by such Letters, but certify the King thereof; and proceed to execute the Law—notwithstanding the same Letters; and that ye shall do and procure the Profit of the King and of his Crown, with all Things where ye may reasonably do the same; and in Case ye be from henceforth found in Default in any of the Points aforesaid, ye shall be at the King's Will, of Body, Lands and Goods, thereof to be done as shall please him.’

Upon which, it being observed by the Court, that the said Oath was very extensive and solemn, the said Justice said it is so, and that lest thro' Surprise or Forgetfulness he might deviate from it, he found it necessary frequently to read it, especially before the holding the Supreme Court, and on the Circuits; and observed, that as his Oath of Office, as well as his Commission, respected only the common Law and its Proceedings, and could not admit him, by any possible Construction, to decide or determine by any other Law; and as the common Law knew not of any such Appeal from a Verdict to any other Court than that wherein it was taken, he held himself obliged by his Oath, to refuse any Entry of the Appeal from the Verdict as offered, and that if he had allowed that Appeal, he should have acted not only without Authority, but contrary to his Oath; for these Reasons, he could not allow the Appeal as offered, and which he hoped would appear to be a full Answer to this Question; adding therewith, if he had sat in a Court of Admiralty, or any Court from whence Appeals are allowed to a superior Jurisdiction, he should doubtless upon Motion, have allowed them according to the Law and Practice of such Courts.

After which, the said Justice was desired to give the Reasons of his Conduct, with Regard to the Writs referred to in the Question proposed on the 19th of November last.

To which he answered:

As to the first Writ directed to the Chief Justice, and other Judges of his Majesty's Supreme Court, ‘commanding them, and every of them, wholly to forbear Proceeding, or taking any Step further against the said Waddel Cunningham, on the said Verdict, until the Cause and Merits thereof be heard before the Governor and Council, &c.’

[Page]The said Justice acknowledged that he had been duly served with that Writ, and had compared the Copy thereof with the Original at the Time of Service; but as there had been no Application made to him in that said Cause, to do any Thing in Consequence of the said Verdict, since the Service of the said Writ, he had done nothing in it; but according to what he had heard, it was likely that the Validity or Legality of that Writ would come into Question in the Supreme Court; therefore, he was in their Honours Opinion, whether it would be proper that at present he suspend his Judgment on that Point, as extrajudicial Opinions ought to be given very sparingly, and with great Caution, if at all, lest in Consequence of such Opinion, Suits should be promoted, Maintenance encouraged, and the Judgment of the Justice himself forestalled, and the Public otherwise receive some Damage.

However, if the Court insisted upon his giving an Opinion on the Legality of that Writ, he was ready to give it: To which the Court agreed, that the Reason offered was sufficient, why any Opinion at present on that Writ, should not be desired.

And then as to the second Writ, reciting the former, and ‘Commanding the Chief Justice, and other the Judges of the Supreme Court, that they cause all and every the Proceedings against the said Waddel Cunningham, whether by Bill, Plaint, or otherwise, whereon the said Verdict was obtained, to be brought before the Governor and Council, &c.’

The said Justice declared, that he had not been served with that Writ, and had only a Copy of it delivered to him; but understood that the Writ had been delivered to the Chief Justice, to whom Returns on Writs of Error do properly belong; and as that Honourable Board had heard the Chief Justice's Reasons, why he did not make any Return of the Proceedings of the Supreme Court on that Writ, he also was in their Opinion, whether it was necessary for him to give his own Opinion concerning that Writ; but this also at present was not desired.

§

Mr. Justice Livingston then delivered his Reasons in Writing, which were ordered to be entered, and are as follow:

BEING desired by your Honours, to give you the Reasons of my Conduct, in refusing to return two Instruments under Seal, directed to the Chief Justice, and the other Judges of the Supreme Court; [Page] by one of which, all Proceedings on a Verdict obtained by Thomas Forsey, against Waddel Cunningham, are commanded to be stayed; and by the other, for the more fully enabling the Governor and Council to determine the Matter of the said Verdict; we are further commanded, as we will answer the same at our Peril, to Cause all the Proceedings against the said Waddel Cunningham, to be brought before the Governor and Council.

I beg Leave to observe, that my Conduct might easily be justified, by shewing that I had no Notice of those Letters, till the Chief Justice had refused to return them, after which no legal Return could be made, for a Writ must ever be returned by those to whom it is directed. But because I believe your Honours, in the Request you made us, did not intend so much to call upon us for a Justification of our Conduct, as to receive the Opinion of the Judges in an Affair of the greatest Importance, and to be informed whether in our Explanation of the Instruction on which those Instruments seem to be founded, we agree with the Chief Justice; I shall with the greatest Willingness endeavour to answer your Expectations.—Had the Chief Justice in the least doubted in what Manner he ought to have acted on the Receipt of these Instruments, he would have waited till the Return of the other Judges out of the Country permitted a Consultation; but he thought, and it is by what I can learn the Opinion of every one of us, that the Case admitted no Dispute.

For it is evident, that the Course of the Law, by which the Prerogatives of the Crown, and the Rights of the Subject, are defined and secured, must at all Times be free and uninterrupted; and this is so particularly provided for, that by the Oath we have taken, we are to deny no Man Right by the King's Letters, nor none other Man's, but to proceed notwithstanding such Letters. This was not intended however, to prevent the staying of Execution after Judgment, by Writs of Error; for the Correction of Errors is not a Delay, but a Furtherance of Justice.

The first Instrument appears to me, a very great Abuse of the King's Name and Authority. It commands us in Terms very disrespectful, and not such as are usual in Writs directed to us, wholly to forbear Proceeding or taking any further Step against the said Waddel Cunningham, on the Verdict obtained against him. The Illegality of which will appear from these three Observations.

[Page]1st. It commands us not to do that, which the Law, our Duty, and common Justice to the Parties, oblige us to do; for had a Writ of Error been brought, we should have still been obliged to proceed to Judgment, and the signing of the Roll: And tho' it is allowable to bring Writs of Error before Judgment, this being the common Practice to prevent Execution, yet the Writ has no Effect till after Judgment; before that, the Party having received no Injury.

2dly We are to forbear till the Merits of the Verdict are heard before y [...] Honours; but the Roll being with us, and no proper Method being taken to bring the Cause before you; this Prohibition might for any Thing which could appear to the Judges, have been perpetual, to the great Grievance of the Party concerned, and the Delay of Justice. Therefore the Chief Justice could not have refused to sign the Roll when it was required, notwithstanding this Prohibition.

3dly. Your Honours are incompetent Judges of the Merits of the Verdict, because it is impossible to inform you of the Grounds on which the Jury founded it, since they sometimes are guided by what they know of their own Knowledge; especially in what relates to the Characters of the Witnesses, of which they coming from the Neighbourhood, are the most proper Judges.

‘The other Instrument, as well as the first, is directed "to our Chief Justice, and the other Judges of our Supreme Court, and to all the other Officers of our said Court, whom it may concern;’ so that if we had made the Return required, we must have joined with all the Officers of the Court, or the Return would not have been good: Whether this be fit or decent, I leave to your Honour's Consideration.

But waving the Defects of Form, of which there are many others, I shall observe on the Purport and Design of this Instrument, and shew that it was impossible for us to make such a Return as seems to be required. Previous to which, I shall make a few Observations on the Instruction on which it is founded.

The Intention of this Instruction appears to me no more than a Direction to your Honours, when you should suffer a Writ of Error to be brought, and when you are to dismiss the Cause. I have frequently read this Instruction on this Occasion, and it amazes me to find that any [Page] Person should think it liable to a different Explanation. What gives Rise to the Construction on which these Instruments are founded, is the frequent Use of the Word Appeal; but how slender a Foundation this is, must appear from the Instructions before the Year 1753, quoted by his Honour the Chief Justice, which direct that you shall allow Appeals in Cases of Error from the Courts of Law; where the Word Appeal means nothing else but Writs of Error; and accordingly on all such Appeals, Writs of Error have been brought. — After this comes the Instruction in Question, and says, you shall allow Appeals from the Courts of common Law, only in some certain Cases, to wit, When the Value of the Thing appealed for exceeds the Sum of Three Hundred Pounds Sterling. What can this mean, but such an Appeal as was meant by the former Instruction? and in this Sense it seems to have been understood by your Honours; otherwise you would not have suffered it to be made a Question, whether you ought to take Cognizance of a Cause brought before you by Writ of Error, when the only Objection was, that the Thing appealed for, did not amount to Three Hundred Pounds Sterling: An Instance of this Kind I was Witness to last Wednesday; for if the Instruction must be understood to relate to Appeals in the civil Law Form, Writs of Error would have stood upon the same Footing they did before this Instruction was given. In this Explanation and Acceptation of the Word, your Honours are justified by the Use of it in common Parlance, and tho' this be not frequent among Lawyers, yet it is some times so used. Dr. Cowel in his Interpretor, on the Word Appeal, says it is used in the common, as in the civil Law, to signify the Removal of a Cause from an Inferior Judge to a Superior; and his Honour the Chief Justice has shewn you that it was so understood by the King in Council. — The Truth is, both in the civil and in the common Law, the Word is used in these two Senses, to signify an Accusation, and an Appeal from a Judgment, but as in the common Law, (which is more particular in it's Distinctions than any other) there are four Methods of Appeal from a Judgment, to wit, By Writ of Error, Writ of false Judgment, Writ of Attaint, and Audita querela, and as these have but little Similiarity with each other, so that the Law which regards the one, rarely affects the other, Lawyers have seldom Occasion to use the Word, which signifies the Genus, but speak generally of one or other of the Species; and the Word Appeal is appropriated to signify a particular Accusation. But as it is very probable that this Instruction was not drawn by a Lawyer, and we know it was given for the Direction Gentlemen not much [Page] versed in Law Terms; it is very probable that it is here used, in the common Acceptation of the Word, to signify any Removal of a Cause, from one Court to another; and this with more Propriety, as it may intend to include two of the Species above mentioned, a Writ of Error, and a Writ of false Judgment; the latter of which is a Remedy against an erroneous Judgment, in a Court not of Record.

This being the plain Meaning, and certainly the most legal Explanation of this Instruction, a Writ of Error should have been sent, and then your Honours would have had the Record before you: By the Instruction you are to send the usual Writ, and we as Judges dare not obey any other than such as are warranted by Law. All Others we must look upon as Letters contrived to delay or obstruct the Course of Justice.

But it may be asked, what Remedy shall the Party have, who is aggrieved by an unjust Verdict, or an Error in Fact.—To which the Answer is, he may have a Writ of Error, to try the Fact in the same Court; or he may have his Writ of Attaint, or according to the usual Practice, move the Court for a new Trial; or he may have his Audita querela: All which are competent Remedies according to the Nature of the Case, without carrying the Matter before another Judicatory: Because, the Judges are not concerned in any Errors in Fact, but such as may be made Part of the Record by a Bill of Exceptions, if the Party pleases, and consequently they still remain indifferent, and therefore an Appeal from their Judgment is unnecessary.

But what makes it evident, that the King did not intend by the above Instruction to alter the Law, and the Methods of Proceeding in the Supreme Court is this, The Instruction is not directed to the Judges of that Court, and therefore was not intended to regulate their Conduct: They must still determine and act according to Law, and nothing can be more absurd than to suppose, that they must have Recourse to a Governor's Instructions, to spell out their Duty from such Scraps of them as he shall think proper to communicate. Further, it is evident, that Writs of Error were only meant by this Instruction.

I. Because it directs the Governor to issue a Writ in the Manner which has been usually accustomed, and this is the usual Writ, and no other has been used.

[Page]II. This will bring up all that the Justices of the Supreme Court can send, and therefore any other Writ must be useless. Nothing else is in our Power at present, but the Record, and that we are ready to send as soon as it is properly demanded. In civil Law Courts, the Evidence is reduced to Writing, and therefore, upon an Appeal, may be transmitted. But send to us as many Letters as you please, and let them contain Terms still more menacing than those sent us upon this Occasion, if the Law did not fully justify us in our Refusal to return them, our Excuse would be Nil dat, quod non habet. The Evidence went to the Jury, most of it was delivered viva voce, and it is impossible for us to retain it in our Memories: Should we make Records of all that was said by each Witness, in every Trial, the Labour would be endless, and the whole Year would not suffice for the Trial of the Causes which yearly arise, tho' the Court should sit every Day, and the Country be obliged to a perpetual Attendance.

But as the Chief Justice has sufficiently shewn the Inconveniencies which must attend this new Practice; I shall not enlarge on them, tho' many others might be mentioned that would result from altering the Law, in so essential a Point as Trials by Juries.

I have as much as possible in giving your Honours these Reasons for my Conduct, avoided saying any Thing the Chief Justice has already observed; because I would not trespass on your Patience, by an unnecessary Repetition. But he has been so copious, and has treated the Matter so well, that I have not been able to avoid sliding into some of them.

Upon the Whole, it appears to me a very unsafe Interpretation of this Instruction, to say, that his Majesty designed by it to establish such a Court, as has been altogether unknown to Englishmen, since the glorious Revolution. That he intended (except in Causes thought too trifling to admit of an Appeal) to deprive his Subjects in this Colony of their indisputable Right to Trials by Juries, one of the most antient Privileges of Englishmen, confirmed to them by the great Charter, essential to, and the grand Palladium of their Liberties.

Such a Supposition would be extremely injurious to his Majesty, and the Memory of his Royal Grandfather, in whose Time this Instruction was first given, especially as the Monarchs of the illustrious House of Hanover, could never be justly charged with taking a single Step towards infringing the Liberties of their People.

December 12, 1764.

ROBERT R. LIVINGSTON.

[Page]

At a Council held at Fort George, in the City of New-York, on Wednesday the 26th Day of December, 1764. PRESENT, The Hon. CADWALLADER COLDEN, Esquire, Lieutenant Governor, &c. • Mr. WATTS, , • Mr. WALTON, , • Mr. DE LANCEY, , • Mr. READE, , and • Mr. MORRIS. 
Waddel Cunningham, against Thomas Forsey, ON APPEAL.

A Letter from Mr. Justice Jones, dated the 21st Instant, in Answer to the Question on which he was desired, by Order of this Court of the 12th Instant, to give his Opinion, was read, and is as follows, viz.

I Have received from Mr. Banyar, the Copy of the Minute of Council, made at the Council held at Fort-George, in the City of New York, on Wednesday the 12th Instant; by which I am desired to give my Reasons, why the Appeal moved for in the Cause of Waddel Cunningham, against Thomas Forsey, in the Court below, was not allowed; or whether according to the Laws and Constitution of England, an Appeal from the Verdict of the Jury, on the whole Merits of this Cause, could lie? In answer to the first Part, I have only to acquaint your Honour, and the Gentlemen of the Council, that I happened not to be in Court, the last Day of the Term, when the Appeal was moved for: As to the Second, viz. Whether according to the Laws and Constitution of England, an Appeal from the Verdict of the Jury, on the whole Merits of this Cause, could lie?—In Answer to this Question, I must declare to your Honour, and the Gentlemen of the Council, that [Page] in all my reading, on the Laws and Constitution of England, I cannot recollect that I have ever met with any Thing in Favour of such an Appeal. On the Contrary, the known Rule is, ad Quaestionem Juris respondent Judices, ad Quaestionem Facti respondent Juratores. The Book intitled The Law of Errors, P. 4, says, it is a known Rule in our Books, ‘a Judgment being once given in Curia Domini Regis, ought not to be reversed, nor avoided but by Error, or Attaint, for all Matters of Fact at common Law, are decided by a Jury of Twelve Men, against whom if they err in their Judgment, the Party grieved may bring Attaint.’ The Writ of Attaint lay originally at common Law, and is affirmed with some Alterations by the Statute of the 23d of HENRY the Eighth, C. the 3d; and in Wood's Institute of the Laws of England, P. 637, is thus described; ‘A Writ of Attaint lies against a Jury, and is to examine whether a Jury of twelve Men gave a false Verdict, or contrary to Evidence, in a Court of Record upon Issue joined: That upon Conviction of the Jury, the Judgment following upon it may be reversed.’ This appears to me to be the only Method formerly used to set aside or avoid the Verdict of a Jury; but as Wood says, in the same Place, is now almost out of Use; and instead thereof, Motions are usually made for new Trials when a Verdict is given contrary to Evidence; which seems to be the present Practice in the Courts at Westminster, and is the Practice of the Supreme Court here: In removing a Cause from one Court to another for Matter of Error, the common Method I take to be by Writ of Error, tho' sometimes by Certiorari, and the Proceedings on such Writs, are in Relation to the Errors of the Judges, in Matters of Law; and are not to have Respect to the Verdict of the Jury, as appears to me from the Statute of the 27th of ELIZABETH, C. 8th, how erroneous Judgments in the King's Bench, upon certain personal Actions may be redressed; where Verdicts are expressly excepted· — I therefore give it as my Opinion, that according to the Laws and Constitution of England, the Appeal mentioned in the Question could not lie.

DAVID JONES.

[Page]

At a Council held at Fort George, in the City of New-York, on Wednesday the 9th Day of January, 1765. PRESENT, The Hon. CADWALLADER COLDEN, Esquire, Lieutenant Governor, &c. • Mr. WATTS, , • Mr. WALTON, , • Mr. DE LANCEY, , • Mr. READE, , and • Mr. MORRIS. 
Waddel Cunningham. against Thomas Forsey, ON APPEAL.

THE Reasons of the Gentlemen of the Council, why the Appeal in this Cause cannot be received; as also farther Reasons of Mr. Justice Livingston, in Support of his Opinion already delivered in this Cause, were, read.

At a Council held at Fort George in the City of New-York, on Friday the 11th Day of January, 1765. PRESENT, The Hon. CADWALLADER COLDEN, Esquire, Lieutenant Governor, &c. • Mr. WATTS, , • Mr. WALTON, , • Mr. DE LANCEY, , • Earl of STIRLING, , • Mr. READE, , and • Mr. MORRIS. 
Waddel Cunningham, against Thomas Forsey, ON APPEAL.

HIS Honour the Lieutenant Governor required the Opinion of the Council on the following Question.

‘Whether by the 32d Instruction, the King has directed his Governor to permit and allow Appeals in all civil Causes, from the Courts [Page] of common Law within this Province; and whether his Majesty has by the same Instruction, directed his Governor and Council to hear and determine such Appeals?’

Whereupon the Council declared, that as the King's Judges, and the most able Council in the Law in the Province, have given their Opinion, that no other than an Appeal on Error, can lie by this Instruction; they are unanimously of Opinion, no other Appeal than on Error, is the Intention or Meaning of the Crown by this Instruction, and that they cannot take Cognizance of any other Appeal.

His Honour the Lieutenant Governor declared his Dissent from the said Opinion, and signified he would give his Reasons for such his Dissent to his Majesty's Ministers.

Whereupon a Motion was made, that the Reasons offered by the Council in this Cause, on Wednesday last, should be entered, which were ordered to be entered accordingly, and are in the Words following:

Waddel Cunningham, Claiming to be Appellant against Thomas Forsey.

HIS Majesty's Council for the Province of New-York, as constituting with the Governor or Commander in Chief for the Time being, the Court established by his Majesty's royal Predecessors, and referred to in his present Majesty's 32d Instruction; conceiving it to be a Question of the utmost Importance, whether by Virtue of that, or any precedent royal Instruction, they are authorized in Conjunction with his Honour the Lieutenant Governor, to hold Cognizance of this Cause, on an Appeal upon the Merits, from the Verdict of a Jury?

On this momentous Topic, the Lieutenant Governor, and the Council, have taken the utmost Pains to form a Judgment, by which Justice may be distributed to the Subject, consistent with the known and established Laws of the Land, and the true Sense and Meaning of the royal Instructions.

In this Veiw, as it is a Case of the first Impression, the Court unanimously called upon the Judges of the Supreme Court, and several Counsel of the best Reputation in their Profession, who have all concurred in Opinion, that we are not authorized either by Law or by any of the [Page] royal Instructions, in several Instances so evidently grounded on the Laws of England, to hold jurisdiction of this Cause, as it is now brought before us. The Court has besides those Aids, given every Advantage to a Point of so great Moment, which the most mature Consideration could afford: And that it may appear upon what Reasons his Majesty's Council have the Unhappiness to differ in Opinion from his Honour the Lieutenant Governor, they beg Leave to consider the Reasons urged by him in Favour of the Appeal, as it is now brought before us; and to subjoin such Answers to those Reasons, as it is conceived the Law will warrant.

His Majesty's Council humbly hope, that they cannot better Recommend themselves to his royal Approbation, than by making the Law of the Land the Rule of their Conduct, in the Execution of every Part of the important Trust committed to them; and flatter themselves, that their Dissention in Sentiment from his Honour, as it is founded on the clearest Law, will be a full Demonstration of their Fidelity to the best of Princes.

In this material Division in the Sentiments of this Court; his Majesty's Council are of Opinion, that his Honour's Reasons will, if literally incorporated into this their Answer, appear in a View, the most advantageous of which they are capable: And as we with the utmost Willingness submit the Reasons of our Judgment to the Consideration of those, who by Law are invested with a Power to correct our Errors, and controul our Determinations, we flatter ourselves that his Honour would not decline the same Tribunal; and as we presume the Law must at last determine upon this Difference, so also we conceive that such Determination can best be made upon a fair State of the Contrast.

In the Pursuit of this Method, his Honour's Reasons will be reduced into as many different Paragraphs, as their Subject Matter naturally dictates; to each of which his Majesty's Council will offer such Answers, as their Duty to their Prince, and the Laws of the Land clearly and undeniably suggest. The first Paragraph is as follows:

An Error I conceive runs thro' all the Arguments I have heard on this Subject, in not distinguishing between the Laws and the Execution of them: The executory judicial Powers are certainly in the Crown: The King is the Fountain of Justice: The Power of erecting Courts of Justice is consequently in the Crown. The King may give them [Page] such Modes of Proceeding, such Extent of Authority and Jurisdiction, as he thinks most proper for obtaining Justice, in the Countries where such Courts are erected, suited to the Circumstance of the Country; and it may be done without the least Alteration of the Law, by which such Courts must Judge. This is evident in our Colonies; every Colony has different Courts and Modes of Proceeding from those in other Colonies; and all of them different from the Courts in England; yet the same common Law has its full Force in all of them.

In Answer to this we observe:

That we think the Distinction which his Honour supposes between the Laws and the Execution of them, in the Sense urged in his Rersons, is groundless. For tho' we agree with him, that the Law must essentially and unalterably be the same, unless changed by legislative Act, (which the Distinction taken by him necessarily supposes) and that judicial Powers are in Supposition of Law in the Crown, that the King is the Fountain of Justice, and the Power of erecting Courts is in the Crown: Yet we beg Leave to deny his Inference, that the King may give them such Modes of Proceeding, such Extent of Authority and Jurisdiction as he thinks proper, as well as that such Modes may be introduced as have hitherto been unknown, without the least Alteration of the Law, by which such Court must Judge.

For, 1st, we conceive that tho' the Crown has Authority to erect and constitute Courts,6 Rep. 11.—Wood's Inst. 447. Vin. tit. Prerogative, P. 561, No. 8. yet every Court must have such a Jurisdiction, and must be so modelled in its essential Parts, as to have a known and common Law Jurisdiction.

2dly. Wherever such new modelled Courts are essentially different from those known in the Law, the Law must necessarily and of Course be altered; as the Maxim wisely speaks, Mutata Forma prope interemitur Substantia rei; for Instance, were the Lieutenant Governor's Supposition just, that his Majesty's 32d Instruction did intend that this Court as a Court of Appeals, should have Cognizance of Matters of Fact, already settled and determined by a Jury, it would alter the Law in the grand and essential Point of Trials by Juries,Law Er. 4.—Cro. Ja. 335, 336—Trials per pais, 6th Ed. 227, 228. Vaug [...] an 148, 149. whose Verdicts by the Laws of England, are the only Means by which Facts can be determined, and would amount to a Reversal of the common Law [Page] Maxim, ad Quaestionem Juris respondet Judices, ad Quaestionem Facti respondent Juratores.

3dly. Tho' different Methods of Proceeding in the different Colonies, are rather assumed by them than warranted by Law, and yet the principal Difference between them is perhaps in Matters of Form, (in which all the various Courts of Law in England do also differ); but the essential Parts of every common Law Court, to wit, a Jury to determine the Facts, and Judges to speak the Law, are to be found, in all the Courts of Law of every Colony.

His Honour in the next Paragraph observes, that ‘In all the Colonies Appeals to the King lie — this is essential to the Prerogative of the Crown, without which the Dependence of the Colonies cannot be preserved. The preserving the Dependence of all the Dominions of the Crown, the Parliament of Great-Britain evidently had in View, in the Act of the 6th of GEORGE the 1st. for the better securing the Dependency of Ireland; but as this Matter is of great Importance, I shall consider it more distinctly.’

His Majesty's Council observe on this Paragraph, that the Word Appeal is used without settling its Definition: If by it is intended an Appeal upon Matters of Fact, they cannot help observing it is a Petitio Principii. That in all the Colonies an Appeal in the confined Sense of the Word (and in the only proper Sense in which it is known in the Law of England, to wit, from the Judgment of the Judges in Matters of Law, will lie to the King as present in Supposion of Law) in all his Courts, cannot be doubted. And in this Sense an Appeal is clearly both essential to the Prerogative of the Crown, and absolutely necessary for maintaining the Dependence of the Colonies, as the inferior upon Great-Britain, as the Superior Dominion; and these indeed are the only Reasons why an Appeal in any Sense of the Word will lie. For thus the greatest Lawyers reason on the Subject.

As such Dominions are not Parcel of, but Dominions dependent on Great-Britain, no remedial Writs between Subject and Subject will lie, from the superior to the inferior Dominion; as they do from the Courts of Westminster to any of the Counties of England, except Writs of Error. But if the Errors of Judges in the dependent Dominion might not be corrected by some Judicatory in the Kingdom on which it depends, these Consequences would follow, to wit.

[Page]1st. That the Law appointed or permitted to such inferior Dominion, might be insensibly changed within itself, without the Assent of the Dominion superior.

2dly. That Judgments might be then given to the Disadvantage or lessening of the Superiority; which cannot be reasonable: and to make the Superiority to be only of the King, but not of the Crown of Great Britain, as King James once would have it in a Case concerning Ireland.

Therefore it necessarily follows, that Writs of Error into all Dominions belonging to Great Britain, upon the ultimate Judgments there given into the King's Courts of England, to reverse or affirm Judgments, are necessary to support a Dependence,Vaughan's Repo. 401.402. and are the only Writs that lie concerning Property between Subject and Subject.

But that Appeals upon Matters of Fact, are not necessary to support the Dependence in Question, is obvious at first View, for whether a Question of Fact be determined between Subject and Subject, either in the Affirmative or Negative, cannot possibly affect such Dependence.

As to the Statute for securing the Dependence of Ireland, we cannot conceive how his Honour should think of applying it to the present Case; for,

1st. It contains not a single Word in Relation to the Colonies, and therefore we cannot see the Propriety of the Assertion, that in the passing of that Act, the Parliament of Great Britain, had in View the preserving the Dependence of all the Dominions of the Crown.

2dly. That Act as far as it provides for securing the Dependence of Ireland, directs nothing more than that the House of Lords in Ireland shall not have any Jurisdiction to judge, affirm or reverse, any Judgment, Sentence, or Decree, made or given there, or in other Words, that they were not a Court of Appeals, either in Law or Equity. The Statute therefore cannot be understood to have intended a Change or Alteration in the Law, by giving the Subject in Ireland a Right of appealing from the Verdict of a Jury. In the next Paragraph his Honour observes, that,

‘By the Word Appeal in Law is meant the removing the Cause from an inferior to a superior Judicatory: By Writ of Error the Cause is [Page] not removed, but some disputed Points in Law are determined, and which may have no Relation to the Merits of the Cause. — Appeals to the King in Person were by the common Law, both before and after the Conquest, and are confirmed by Magna Charta, nulli vendemus, nulli negabimus, nec deferemus Justitiam, relates especially to Appeals, in which the King was Judge; for to sell, deny, or delay Justice, can have no reference to any Person, other than a Judge: The Complaint was, that large Sums of Money were demanded for Writs of Appeal, and at other Times they were denied or delayed. To remedy these Complaints, this Clause was made Part of the great Charter; thereby the Subject's Right to Appeals is confirmed, not taken away.’

We agree with the Lieutenant Governor, that by an Appeal in Law, is meant the Removal of a Cause from an inferior to a superior Judicatory.

But in Opposition to his Opinion, we beg Leave to shew in a few Words, that by Writ of Error the Cause and its Merits are removed, for the Record itself which contains the whole Pleadings between the Parties, the Issue, the Verdict, and the Judgment is removed; and the Errors essential in the Law in either Part of the Record are corrected, and the Judgment in the Whole is either reversed or affirmed.—Thus then the Merits in Law arising from the Matters of Fact, contained in the Record, must necessarily receive their Determination in a Court of Errors; nor can it justly be supposed, that constitutional Courts have been erected with Power to lay their Hands on the Proceedings in a Cause only to furnish an Opportunity for handling some disputed Points in Law, which have no Relation to the Merits of the Cause: Every Error therefore, which is corrigible by Law, must, in Supposition of Law, be essential to the Merits of the Cause; otherwise Writs of Error, instead of being constitutional Remedies, would necessarily and essentially contravene those Words of the great Charter nulli negabimus, nulli differemus Justitiam vel Rectum. Thus then we conceive, that the Distinction set up by his Honour between Appeals and Writs of Error, is groundless; and that a Writ of Error is an Appeal upon the Merits in Law;Salk. 511. Comb. 276.— [...] Lord Ray, 1447.—Hal [...] History com. Law, 48.— Id. 150. [...]1. Sp [...]rsim, in which Sense the Word Appeal is clearly understood in the Books, as may be shewn from a great Number of Authorities.

But as his Honour has been pleased in this Paragraph to furnish a Comment on the Chapter of Magna Charta, a Passage from which we [Page] have mentioned, we must take the Liberty to oppose it with another Comment on the same Words, given by the great Lord Coke, which clearly shews, 1st. That this Chapter cannot concern the King's Personal Administration of Justice on Appeals upon Matter of Fact, but the Administration of Justice by his known and ordinary Courts; in all which, the King, tho' not in Fact, yet in Supposition of Law is present, which is the Reason that the King himself, in the Words of the Charter, declares, he will not do what he intends his Court shall not;2 Inst. 46. ‘And thus speaks the great Oracle of the Law; no Man shall be condemned at the King's Suit, either before the King in his Bench, where the Pleas are Coram Rege, (and so are the Words, nec super eum ibimus to be understood) nor before any other Commissioner or Judge whatsoever; and so are the Words, nec super eum mittemus to be understood, but by the Judgment of his Peers, that is his Equals, and according to the Law of the Land;’ and from this Paraphrase the Author says, the Sense of the other Clause; we will deny, sell, or refuse Justice to no Man, is distinctly understood: And upon the same Clause he further observes thus;Ib. 55. ‘This is spoken in the Person of the King, who in Judgment of Law in all his Courts is present, and repeating these Words, Nulli vendemus, &c.’ Or,

2dly. These Words as they have been expounded by other Acts of Parliament intend that, ‘by no Means common Right or common Law should be disturbed or delayed,Ib. 56: not though it be commanded under the great Seal (as in the present Case) or by privy Seal, Order, Writ, Letters, Message, or Commandment whatsoever, either from the King or any other; and that the Justices shall proceed (as in this Case they have done) as if no such Writs, Letters, Order, Message, or other Commandment were come to them.’

And thus it appears clearly from the best Comment on the Subject, that his Honour in applying this Chapter of Magna Charta, to the supposed Appeal, in which the King was the Judge, has misunderstood the Text: We are therefore at a Loss to discover from whence his Honour has collected the Reason upon which he alledges this Chapter of the great Charter was grounded, (to wit) That large Sums of Money were demanded for Writs of Appeal; and at other Times, they were denied or delayed, or that this Clause was made Part of the great Charter, to confirm the Subject's Right to Appeals.

[Page]Before we proceed to a particular Consideration of the rest of his Honour's Reasons, it will be necessary to extract and refute a latent Distinction which implicitly runs thro' most of them: It is this, That tho' the Colonies are intitled to the Antient common Law of England, as it stood before the Time of the great Charter, yet none of the Laws which took Place since that important Aera, do extend to the Colonies.

This Distinction we conceive may be refuted by observing:

1st. That it has been solemnly adjudged before the King in Council, that in all Colonies the Subjects carry with them the Laws of England, and therefore as well those that took Place after,Salk. 411. 2 Mod. 47. as those which were in Force before the passing of the great Charter.—2 Peer W.

2dly. That by the Statute of 7 & 8, W. III. the Laws of England, as they then were, and as they should appear to be thereafter, are made the Standards of Law in the Colonies; as,

3dly. They are also by one of his present Majesty's Instructions, in which the Gov [...]or or Commander in Chief is directed ‘to take Care that no Man's Life, Members, Freehold, or Goods, be taken away or harmed, otherwise than by established and known Laws, not repugnant to, but as much as may be, agreeable to the Laws of England,’ pursuant to which Adjudication, Statute, and Instruction,

4thly. The Laws of England in themselves, and in the Manner of administering them, have been the Measure of Right and Wrong between Subject and Subject in this Colony, from its first Settlement, down to the present Day; and will doubtless be maintained as such, agreeable to the Coronation Oath established by the Statute of the 1 W. and M. Statute 1, Chap. 6, Sec. 2. according to which, the King swears to govern the People of England, and the Dominions thereunto belonging according to the Statutes in Parliament agreed on, and the Laws and Customs of the same.

Notwithstanding which, the Lieutenant Governor evidently proceeds upon the abovementioned Distinction, in his next Paragraph, which is in these Words:

‘At the Time of the great Charter, all the Property of the Nation was determined in the Hundred Court, County, or Sheriff's Court, [Page] and Baron's Court; and if the Party could not obtain Justice in those Courts, he might appeal to the King, who would do him Justice—To do Justice was also Part of the antient Coronation Oath.’

Upon which we observe:

1st. That if by the Law of England no such Appeal as he maintains did lie in England, at the Time of the Settlement of this Colony, it could not for the Reasons we have assigned ever lie here. —

2dly. We must take the Liberty to observe, that the Lieutenant Governor when he asserted, that at the Time of the great Charter, all the Property of the Nation was determined in the Hundred Counts, &c. must have forgot the great Courts at Westminster, and the Justices in Eyre, for to suppose that the Courts at Westminster and in Eyre, were then in Being, and without Employment, is really difficult; that however, the King's Bench and common Pleas existed before the great Charter, appears from 11 Chapter of the Charter itself, which runs thus, Communia Placita non sequuntur Curiam nostram sed tenentur in aliquo certo Loco: The same Point is manifested by the next Chapter, which runs thus, Justitiarii de Banco, that is,2 Inst. page 21. &c. the Justices of the Court of common Pleas are expressly named: as also by my Lord Coke's Comments upon those Chapters. And with Respect to all the four great Courts at Westminster, 10 Ed. 4 fo. 53 8 Rep. pref. 16 it was adjudged so early as in the Reign of Edward IV. that they were all by the common Law. In the Time of R. I. Pleas of Land were indifferently held in the King's Bench and common Pleas;Hales history of com. law, 146. and tho' in the Reign of his Father, King H. II. the Administration of common Justice had by the Practice of the Subject, who was apt to seek Justice nearer Home than in the Courts of Westminster, been almost wholly drawn to the County Courts, Hundred Courts, and Courts Baron; yet Justices in Eyre were in that Prince's Reign appointed by Act of Parliament, who were Missi per singulos Angliae Comitatus, & juraverunt quod cuilibet Jus suum conservarent illaesum.

And that the Kings of England never did since the Aera, that is often Times, tho' unjustly called the Norman Conquest,4 Inst. 73. administer Justice in Person, is evident from a Passage in the antient Book, called the Mirror of Justice, which contains the Law as it stood ‘above 1200 Years ago, and has in it a Passage in old French, which translated runs thus: the Kings used to do right in Person to [Page] all the Subjects, or by their Chief Justices, but now they Decree Justice by their Justices Errant Commissioned for all Pleas;’ and my Lord Coke, Mir. Chap. 2, § [...]. in extracting the Substance of this antient Author in his Preface to his 3d Rep. says, in this ‘Book in Effect appeareth the whole Frame of the antient common Law of this Realm;’ and then proceeds to Instance the Truth of this Observation, by exhibiting from the Mirror a Sketch of the Authority of all the common Law Courts; among which are the Four great Courts at Westminster, and particularly the Court of King's Bench, of which he speaks thus; ‘The King's Bench, Chief Justices holding Pleas of the King, and soon after the Office of Chief Justice belonged to redress, and punish by Writ, the wrongful Judgments, Wrongs and Errors of other Justices, and to Cause to come before the King, the Parties and the Record, &c. that is before the King, because he always sat in Person in his Bench; tho' the Judges rendered the Judgments:’ And from this Passage it appears to a Demonstration, that the King's Bench before the Conquest, enjoyed the Power of correcting by Writ, that is by Writ of Error, the wrongful Judgments and Errors of all other Courts; which in truth appear to be the only Appeal, (except in criminal Matters, where the Word is used in a different Sense) that was ever known in the Law.

In the Reign of King John, the Business of the inferior Courts gradually diminished, and the Business of Moment came to the great Courts;Hales Hist. Com. Law, 15 [...]. these gave a ready Far to Writs of false Judgment, which was the Appeal the Law allowed from erroneous Judgments in the County, and other inferior Courts; and by these Writs, a Variety of which may be found in the Register, nothing but the Record of the Cause which was made for the Purpose, was sent up: And these must be the Appeals alluded to by his Honour; which however appear to be in the Nature of Writs of Error; and were used to bring up the Judgments of the inferior Courts into the Courts at Westminster; where the Errors in Law, in the Judgments of those lower Judicatories were corrected by the King's Judges, and not by the King himself.—

But it may not be amiss to take Notice here, of what the Lieutenant Governor says on the Subject of the Court of Hustings, or the Mayor's Court of London.— ‘In the Mayor and Sheriff's Court, commonly [Page] called the Hustings, where all the Property of the Citizens is determined, a Writ of Error does not lie, but an Appeal: In Consequence of which, the King appoints Commissioners, who are to do full and speedy Justice. They do not only reverse, or affirm the Judgment of the Hustings, but they give such Judgment as the Hustings ought to have given. The Jurisdiction of the Hustings is by common Law; and Writs of Error do not lie in any Court whose Jurisdiction is by common Law, but an Appeal does.’

Upon which we observe, that the Lieutenant Governor is again mistaken in supposing that an Appeal lies from the Hustings to Commissioners in Matters of Fact, and that those Commissioners do full and speedy Justice upon the whole Merits, both in Fact and Law. On the Contrary, it will appear from the Perusal of the Books on the Subject, that they act merely as a Court of Errors, in either reversing, or affirming the Judgment of the Hustings.New. Nat. Brev. 53. H. Fitzherbert asserts, ‘that if an erroneous Judgment be given in the Courts before the Sheriff of London only, the Party grieved shall have a Writ of Error out of Chancery, directed unto the Sheriffs, to bring the Record before the Mayor and Aldermen, in the Hustings of London; and there the Record shall be examined; and if there be Error, they shall reverse the Record there, by the Custom of the said City: And if erroneous Judgment be given in the Hustings in London, Idem. 55 E. 4 Inst. 247.248. before the Mayor and the Sheriffs there, then the Party who will sue to reverse the Judgment, shall come into the Chancery, and there sue a Commission," directed to Persons to examine the Record and Process, and the Errors, and thereupon to do Right.New. Nat. Brev. 55. G. And a Man shall have a Commission to examine the Errors in a Judgment given in the Hustings in the Time of another King, and in the Time of another Mayor, and other Sheriffs.’ And in the same Chapter, the Author speaks repeatedly of suing Writs of Error, and Commissions to remove the Judgments of the Mayor and Sheriffs of London, and of correcting the Errors of their Judgments. And from the several Forms of Writs and Commissions of Error to the Hustings, contained in that Chapter, it appears clearly that they are essentially and substantially the same as Writs of Error in other Cases, and to other Courts. And we suppose that the Lieutenant Governor's Mistake on this Subject, proceeded from the Use of the Word Commission, instead of Writ, tho' in Fact and Truth, every Writ of Error is more properly a Commission than a Writ.Law of Errors 2 and 3.

[Page] His Honour in the Sixth Paragraph observes, that,

From the Nature of the Courts, which existed by common Law, it is evident, that the Distinction now in Use, between Writs of Error and Appeals, could not then exist; because there was no such Distinction then, between the Jury and the Judges, as now in the Courts of Westminster. By common Law the Jury was absolutely Judge of both Law and Fact. This is still evident in the Sheriff's Court, Coroner's Court, and in the House of Peers: Appeals must extend to the whole Merits, where there was no Distinction between the Verdict of the Jury, and the Judgment of the Court, as it is evident by common Law there is not.

Upon which his Majesty's Council Remark, that,

Proofs are not wanting in the Books to shew that Juries were in Use, even among the antient Britons; that as Juries now do, so did they of all Times try the Matters of Fact; that as they r [...]w are in some Sense Judges of Law, where they take upon themselves to find general Verdicts, so were they antiently; and by the antient common Law they were no more Judges of Fact solely, than they now are: The Evidence formerly was never reduced to Writing any more than it now is, to wit, on Demurrers and special Verdicts; in which the Law was always reserved for the Determination of the Court; and the Maxim, ad Quaestionem Juris respondent Judices, ad Quaestionem Facti respondent Juratores, is an antient common Law Maxim: To suppose therefore that there is now a Distinction between Appeals and Writs of Error, which did not antiently exist, appears to us altogether groundless; the Truth is, no such Distinction now does, or ever did exist. Nor do we conceive, that the Instances adduced from this Sheriff's Court, Coroner's Court, and House of Peers, are at all pertinent: In the two first, Facts are settled in the same Manner as they are in the Courts of Westminster, to wit, by a Jury; and in the House of Peers, nothing but Matters of Law, except where the Appeal is from the Equity Side of the Chancery, or Exchequer, in which the Proceedings by the Law of the Land are to be in the Pretorian Method, and the Evidence reduced to Writing, are ever determined there; it being below their Dignity to try Matters of Fact.Salk. 511.

His Majesty's Council conceive, that his Honour is mistaken in his Opinion, that Writs of Error were introduced into the Courts of Westminster, long after the great Charter. The Paragraph in which this is contained runs thus:

[Page] ‘Writs of Error I have Reason to believe were introduced into the Courts of Westminster, long after the Time of the Great Charter— Courts are known to assume Powers, which did not originally belong to them. —Judge Coke says, boni Judicis est amp [...]iure Jurisdictionem. If these assumed Powers are found beneficial, they become confirmed by Usage; such are Writs of Error: But as they are not by common Law, they are confined to the Courts, where such Usage prevails. For this Reason, and their being useful they were extended by Acts of Parliament to other Courts and Places, where such Usage did not prevail.—The Necessity of an Act of Parliament, sufficiently shews, that they are not by common Law: This is made more evident by what I think is universally agreed, with Respect to the Islands of Jersey and Guernsey, where Judicial Trials are by Jury; that in Case any Party is aggrieved by any Sentence, or Judgment, there he is to have his Remedy by Appeal, to the King in his Privy Council; and that Judgments are not to be examined by Writs of Error. The Reason given is, that tho' these Islands are Parcel of the Dominions of the Crown of England, they are not Parcel of the Realm of England. The like Observation is made with Respect to the Isle of Man.’

Upon this Paragraph his Majesty's Council Remark, that, they have already shewn, that Writs of Error were by the common Law; and as a further Proof, refer to the Register of Writs, which was undoubtedly compiled before the Conquest: This Book, by which most of the Writs still in Use are framed, contains a great Variety of Writs of Error: The Power of trying Errors has not therefore been assumed, but belongs to the King's Courts, from Time Immemorial; nor can the Maxim boni Judicis est ampliare Jurisdictionem, mean any Thing more than that Judges are in the Distribution of Justice, to exercise every possible Power, which the Law will warrant. And as the Correction of Errors is by the common Law, it extends to all Times and to every common Law Court; the Distinction therefore, that Writs of Error do not lie in the Colonies, which is grounded on the other baseless Distinction, that nothing but the antient common Law of England extends to the Colonies, must also appear to be without Foundation; and the supposed Necessity of an Act of Parliament, to give Writs of Error in certain Cases, which is in evident Allusion to the 31st of El. Chap. I, whereby the Exchequer is authorized to hear and correct the Errors of [Page] the King's Bench, is entirely groundless; for nothing is clearer than that before that Statute, Writs of Error did lie from the King's Bench, to the House of Lords: The Statute therefore was not to give a Writ of Error where it did not lie before; but to carry a Case of Errors thro' the Exchequer to the House of Lords, instead of removing it immediately to that august and final Tribunal, as was the Practice by the common Law.

Nor does the Argument in Support of the Position, that Writs of Error did not lie at the common Law, receive any Weight from the Instance assigned, concerning Appeals from Jersey and Guernsey; for my Lord Hale, from whose History of the common Law, his Honour has probably collected this Instance, unfolds the Reasons upon which an Appeal lies from these Islands, to the King in privy Council, which are these; those Islands were Part of the Dutchy of Normandy; by the Laws of which Dutchy, an Appeal did lie to the Duke in his Council; and as after the Annexation of that Dutchy to the Crown, the Laws of Normandy continued unaltered, and the King of England, was Duke of Normandy, the Appeal must of Course be to him in Privy Council.

Besides, this Instance does not shew that a Writ of Error, did not lie to those Islands, but the Contrary is rather to be supposed; because they had Trials by Juries, and therefore it is to be presumed, that an Appeal from their Courts, lies in the same Cases as in the Courts of England, to wit, on Errors in Law only; in short, my Lord Hale, clearly intends to shew the Reason, why an Appeal lies from those Islands to the King in Council, and not the Nature of that Appeal, which must be presumed, if the same Word, in the same Author, is to be understood in the same Sense, to mean in Case of Error only: Besides, as a Proof of this Matter it is certain, that a Writ of Error did lie to the King's Courts at Calais, which was not Parcel of the Dominions of England, but a distinct Dominion, dependent on the Crown of Great-Britain: Vin. Tit. Error, P. 484, No, 22, 4, Inst. 282: As to the Isle of Man, it was antiently an independent Kingdom, governed by its own Laws, which have never been changed to this Day; and in that Island, a Writ of Error is not known in their Law.

But as a Proof, that whatever the Laws of a dependent State may be, they are not to be changed by Authority of the Crown; it appears in [Page] the Books, that the Crown can only appoint Judges by Commission, to redress Injustice and Wrong, according to the Law and Justice of the Isle. 4. Inst. 285.

The Three next Paragraphs, as they concern the Charters of some of the neighbouring Colonies, we shall take the Liberty to consider as one; they are these;

In the Charter unto William Penn, of Pennsylvania, the following Clause is inserted, saving and reserving to us, our Heirs, and Successors, the Receiving, Hearing and Determining of the Appeal or Appeals, of all or any Person or Persons, of, in, or belonging to the Territories aforesaid, or touching any Judgment to be there made or given.

By the Charter of the Massachusetts-Bay, the King has reserved to his Subjects there, the Right of appealing to the King in his Privy Council, from the Sentence or Judgment of any Court, or Judicatory in that Province.

In Connecticut, as I am informed, Appeals to the King are not reserved by their Charter; nevertheless the Subject there on his Petition to the King, obtains the Benefit of an Appeal by the King's Mandatory Writ; Obedience to which has never been refused.

Upon these Instances his Majesty's Council remark,

1st. That the Law of the Land, and not the Practice of other Colonies is to be their Guide; nor can such Practice conclude the Subject's Right in this Colony. It is a known Maxim, Actus me invito factus, non est Actus meus.

2dly. That tho' the Charters of Pennsylvania and Massachusetts, reserve to the King the Right of hearing Appeals, it must be in such Manner as the common Law will authorize, that is in Cases of Error only; and therefore nothing can be argued from the Practice of those Colonies. If they as well as Connecticut, have gone into Mistakes in Law, their Conduct can be no Rule for us, Fortior enim est Dispositio Legis quam Hominis; and we have his Honour's Declaration at another Time on this Occasion, that Errors when discovered, ought not to be the Ground of future Proceedings, but must be corrected. With Respect to the Massachusetts and Connecticut, it is well known that they [Page] have, by Laws of their own making, and in evident Deviation from the Laws of England, in the Construction of their Courts, given them [...] Power of Appeal in Matters of Fact, from the highest to the lowest: It is not therefore to be wondered at, that in those Colonies, as well as in others, (in which we conceive the Law of England is not so well understood, nor has been so strictly adhered to as in this Colony) they have run into the erroneous Practice of appealing on Matters of Fact, to the King in Privy Council. And we cannot but be of Opinion, that his Majesty's Lieutenant Governor and Council, of this Colony, in the Execution of their important Trust, ought in Obedience to his Majesty's Instructions, and the Statute of the 7. & 8. of W. 3. to be guided by the known and established Laws of England, and not by the uncertain, and perhaps groundless Proceedings in other Colonies.

We cannot therefore agree with the Lieutenant Governor, when he says, in the next Paragraph.

It is evident from what has been said, that no Writ of Error, can by the common Law lie in the Colonies, because they are not Parcel of the Realm of England. No Act of Parliament has extended Writs of Error to the Colonies. The King has not given Authority to the Governor and Council of this Province, to hear and determine on Writs of Error — but has given them Authority to hear and determine on Appeals; their Authority is therefore clearly confined to Appeals, by which the whole Cause is brought before them, in order that if need be, it may be transmitted by farther Appeal, to the King in his Privy Council. — By what Authority, is the Governor and Council of New-York, appointed Judges in Error? I can see none — If neither Error nor Appeal lies, the Supreme Court becomes uncontroulable.

In Opposition to which, his Majesty's Council are of Opinion, that Writs of Error did lie by the common Law, and that no other Writs, than Writs of Error, would lie by the common Law, from the inferior Dominion; because the Latter is not Parcel of, but depends on the Former; and that they lie ex Necessitate, because the Law may not be changed, nor the Prince govern the inferior Dominion, which he holds Jure Coronae, otherwise than by the Laws of the superior Dominion: That the Power of this Court, does not alone depend on his present most graciour [Page] Majesty's Royal Instructions, but was conferred in its original Constitution, by the Instructions of his royal Progenitors, and Predecessors, by which we are expressly and only authorized to take Cognizance, of Cases of Error. That the Court being thus constituted, no Writ was necessary to be expressly directed, by royal Instructions, for Quando aliquid mandatur, mandatur et omne, per quod pervenitur ad illud.

That his present Majesty's Instruction, has a necessary Relation to former Instructions, because it concerns a Court, which had a Being before the issuing of the present Instruction; and because it has a necessary Reference to the antient Practice of this Court, in directing the usual Writ to be issued; that this Court has no Authority to hear, and determine on Appeals not known in the Law; and by Writ of Error, the Judges of the Supreme Court will be effectually controuled; because by the Law of the Land, they can only err in Matters of Law, upon which either a Demurrer, special Verdict, or Bill of Exception, will in all Cases furnish this Court in the Exercise of its proper Jurisdiction, with every Opportunity of correcting their Mistakes in Law.

But as his Honour has thought proper, to consider more particularly what was offered by those Judges in Construction of his Majesty's 32d Instruction, it will be proper to set forth the Paragraphs on that Head, and give them a particular Answer, they run in these Words:

What has been said I think sufficient—But to remove all Difficulties I can on this Head, I shall next consider the Construction, which the Judges of the Supreme Court have put on the King's Instruction; for their Purpose they have gone back to preceding Instructions; tho' I think that no Argument from thence can be conclusive. It is said that the Words, in Case of Errors, being added in the former Instructions, after the Word Appeal, the Sense of this last Word must be restrained to shew, that the Design of the Instruction is to confine the Governor and Council to the Rules observed on Writs of Error. But in Law, the Word Appeal has a certain and determined Signification: The Word Error is often taken generally to signify any Mistake, and it cannot be confined to the Sense in which Error, is used in a Writ of Error, since no Writ of Error lies in the Colonies.

The next Argument, is from the following Words, in the Instruction, to issue a Writ in the Manner, which has been usually accustomed: [Page] The Meaning must certainly be in the Manner usually accustomed in Appeals, not in the Manner usually accustomed in this Place, as is pretended; for when the first Instruction was given, there could be no accustomed Manner in this Place, and it cannot at any Time be intended, if the accustomed Manner was erroneous as it certainly is, if it be by Writ of Error. Besides, the Usage in this Place is so weak, and of so short Continuance, that it can be of no Force.

But that the Word Appeal, in the Instruction, is taken in its proper Sense, is evident from the other Words in the Instruction, which cannot he applied to a Writ of Error, viz. Appellant and Appellee, Terms never used on a Writ of Error, and the Word Condemnation, which indicates a new Judgment on the Merits.

His Majesty's Council have already remarked, that this Court was not erected by his present Majesty, but was many Years ago, erected and confirmed as a Court of Errors in express Terms, by his Majesty's royal Predecessors and Progenitors: In this View it was a proper common Law Court, at the Time when his present Majesty issued his royal Instruction.

And therefore, tho' we agree that the Word Appeal, has in Law a certain and determined Sense, yet as that Word in its legal Sense▪ is necessarily confined to Matters of Law, and as his Majesty's Council dare not give into so bold an Opinion, that his Majesty by his Instruction, intended to change the Law, and introduce Appeals upon Matters of Fact, unknown to the Laws of England; they think it their Duty to understand the Word Appeal in the present, as the Word Appeal, in Cases of Errors ought to be understood in the former Instruction: And tho' his Honour does not understand the Word Errors, in the former Instructions, as having any Relation to Writs of Error, but in the vulgar Sense as signifying any Mistake, whether in Law or Fact; yet we cannot but be of Opinion, that the Word ought to be taken in its legal Sense; because any other Appeal is not known in the common Law, than an Appeal for Errors in Law, and we think it our Duty to make the Law, and not vulgar Practice, the Rule for construing as well the former, as the present royal Instruction; and that the more particularly, because the very Purport and Design of both, appear to be the Correction of the Judgments of the Courts of Law, for which Reason the Judges of those [Page] Courts are expressly prohibited from voting in the Court of Appeals, tho' they may attend to assign the Reasons of their Judgments; and this not only proves (as the Judges have justly observed) that the Appeal intended in his Majesty's 32d Instruction, must be on Matters in which they are incompetent, by having rendered their Judgment already, to wit, on Matters of Law, but also that the Appeals directed being from Courts of Law, and from the Judgments of those Courts, in the rendering of which Judgments there cannot in the Nature of Things be any thing corrigible, but Errors in Law; the Words Appeal in Cases of Errors, in the old Instruction, and the Word Appeal in the present Instruction, must be understood in the same Sense. Nor can we think it just to attempt to prove that the Word Errors in the old Instruction is not to be taken in its legal Sense, by asserting, that Writs of Error do not he in the Colonies, because, whether they will lie or not, is to be determined by that Instruction. For if thereby a Court of Errors is established, as it clearly is, the Writ of Error is of Course given by necessary Implication, agreeable the Maxim already mentioned; Quando aliquid mandatur, mandatur, & omne per quod pervenitur ad illud, and another Maxim to the same Effect, quicunque aliquid alicui concedit, concedere videtur, et id sine quo Res ipsa esse non potest, and it is evident, that Writs of Error are essential to Courts of Error, because they can exercise no Jurisdiction in Erro [...], but by a Writ of Error, to bring the Cause before them.

What his Honour has been pleased to remark, on the Clause in his present Majesty's Instruction, whereby the Governor or Commander in Chief is directed to issue, a Writ in the Manner which has been usually accustomed, might be fully answered, by simply observing, that tho' we should agree with the Lieutenant Governor, that those Words must intend in the Manner usually accustomed in Appeals: Yet as the common Law knows of no other Appeals than for Errors in Matters of Law, the Writ usually accustomed by the Law of England, must be the Writ intended, which in Appeals from Courts of Record is a Writ of Error.

But besides this, it may not be amiss to observe, that his Honour's reasoning on this Head, is grounded on a palpable Mistake in Fact; for the old Instruction does not contain such a Clause as he supposes.

The Chain of reasoning therefore on this Point is justly this; by the old Instruction a Court of Errors is expressly erected, and consequently the same Instruction gives a Writ of Error by necessary Implication; the [Page] Court of Appeals spoken of in the present Instruction, must necessarily be the Court of Errors mentioned in the old Instruction, because it directs the accustomed Writ, and therefore the accustomed Writ mentioned in the present Instruction, must necessarily intend the Writ of Error implicitly given by the other, and used in Consequence thereof, in a Course of Practice for many Years: So that there can be no Reason to suppose that the Writ which has been usually issued was erroneous, or that the issuing of that Writ at present, must defend solely on what he supposes to be the short, tho' continued Usage in this Colony.

And that Appeals for Error will lie in the Colonies, and that the Practice of bringing them has been long since used in the Colonies, and approved of by the King in privy Council, will appear from the Case of one Jeoffry Jones, which was an Ejectment for Lands, brought in the Reign of King William III. in New-Jersey, and in which Cause a Verdict was found and Judgment given, and the Judgment was on an Appeal to his Majesty in privy Council, afterwards reversed for Error.

Hence therefore the Argument drawn from the Words Appellant and Appellee in the royal Instruction, must be of little Weight; for besides that the old Instruction, which expressly, and only relates to Cases of Error, contains the same Words, it is evident, that if, in Law, the carrying up of a Cause by Writ of Error, is an Appeal, the Party Plaintiff must be the Appellant, and the Defendant the Appellee: Nor will the Word Condemnation, in the Instruction, furnish the least. Argument in Favour of the Lieutenant Governor's Construction; because, by that Word, is indisputably intended the Judgment in the Court below, as will appear from the whole Clause, which directs, that the Appeal shall be allowed, if the Party Appellant gives Security; (1st) to prosecute his Appeal to Effect: 2dly, to answer the Condemnation, and pay the Damages and Costs, it the first Sentence be affirmed. His Honour next proceeds to consider some, and not the most conclusive Arguments urged by the Judges, ab inconvenienti, upon which he Remarks thus;

The next Arguments against Appeals are from Inconveniency; tho' they be not material, yet as they may have more Weight than they ought to have, they deserve a distinct Answer.

The first is from the great Expence Appeals must occasion; to this may be answered, that in the Colonies, where Appeals are in Use, and [Page] where preparatory to an Appeal, the Evidence of Witnesses is at the Desire of either Party taken down in Writing, in the common Law Courts, the Expence is not near so great, as in common Suits in this Province; this Expence then must be owing to some other Cause.

It is again objected, that if Appeals be allowed, the Governor and Council, and afterwards the Privy Council in England, must sit every Day in the Year, to hear and determine them.—The Supreme Court in this Province sits at most only six Weeks, in the whole Year; suppose an Appeal in every Cause, (an absurd Supposition) the Trial on Appeal cannot take up so much Time as in the Supreme Court, for the Formalities to bring the Cause to Issue, are unnecessary in judging on the Merits.

With Respect to his Honour's Remarks upon the Argument drawn from the Expence that would attend Appeals, in the Pretorian Way, it may be answered; that tho' the Prosecution of common Suits, in the neighbouring Colonies, is less expensive than in this Colony, yet we are far from believing, that the Charge of prosecuting an Appeal in those Colonies would be less expensive, than the Trial of an ordinary Cause in this. And though the Law is generally cheaper in ordinary Cases, in those Colonies, than in this, yet we conceive that the little Expence which there attends a common Suit, is one of the greatest Evils under which they labour; as by that Means great Encouragement is given to a litigious Spirit, and has been so far improved to the Disadvantage of the Colony of Connecticut, that Three Thousand Six Hundred Writs have been returned at the Sessions of one of their County Courts; which we believe may be truly said, to exceed the Number of Writs that are issued communibus Annis by all the Courts of this Colony, from the highest to the lowest. But at the same Time we are of Opinion, that tho' the great Cheapness of Law is a real Disadvantage to any Country; yet we think that the Encouragement of Appeals in the Pretorian Way, would be an Expence too excessive to be born by the Subject; and therefore would furnish just Ground for the Argument ab inconvenienti.

The Argument urged by the Judges, from the Inconvenience that would attend a continual Session of the Governor and Council, and of the King in privy Council, for hearing and determining Appeals, we think has been greatly misunderstood; for with Respect to the Governor and [Page] Council, if they are to be a Court of Appeals in the Sense cont [...]nde [...] for by his Honour, they must take Cognizance not only of Appeals from the Supreme Court, but from all the Circuit Courts, County Courts, City Courts, and Borough Courts, throughout the Colony, which would completely furnish them with Business for the whole Year; and, as to Appeals to his Majesty in privy Council, if they were permitted to lie on Matters of Fact, from all the numerous Colonies in his Majesty's Dominions, it is not to be doubted that the privy Council would be obliged to set every Day in the Year, to hear and determine them.

But his Honour has in his Reasons omitted the Consideration of those of the Arguments ab inconvenienti which have the greatest Weight. We cannot however avoid concluding with the Judges, that the Appeal contended for, would render the Expence of Trials by Jury useless, and therefore intolerable, and by making the Cause on Appeal, Res integra, would open a Flood-Gate to Perjury, encourage a Spirit of Litigiousness, and introduce Idleness, to the Ruin of many Families, and the great Impoverishment of the Country, and would be attended with the utmost Danger to the Subject, in the Transmission of original Deeds; the Inspection of which is often Times absolutely necessary (as where a Razure is the Gift of the Controversy) in Order to do Justice to the Cause: Besides this, the Benefit of a View not only appointed by the common Law, but by Statute, in Land Trials, would be lost to the Subject, on every such Appeal. And therefore, as long as there is any truth in the Maxim, quod est inconveniens & contra Rationem, non est permissum in Lege, an Appeal on Matters of Fact, being attended with these Inconveniencies cannot lie.—

His Honour proceeds next, to consider what he allows to be the principal Objection against an Appeal on Matters of Fact, on which he speaks thus.

"I come now to the principal Objection, and which has the greatest Weight, that by Judgment on Appeals, the great Privilege of Trial by Jury is taken away, the great Privilege which Englishmen enjoy above all other Nations: On this Head several Things deserve Consideration."

1st. ‘The Character of the Persons who Judge on Appeals; the Gentlemen of the Council in this Province, and the privy Council in England, where on hearing of Appeals, the Lord high Chancellor, [Page] the Chief Justices of both Benches, and the Lords of greatest Skill and Knowledge in the Law, usually attend: With such Judges, the Verdict of the Jury-will always have its just Weight: Few Men in any difficult Case would not rather trust to such Judges than to the usual Juries in this Country. It is evident from the 33d Instruction, that the King really intended the Benefit of his People, not any Advantage to himself, by ordering Appeals; for the 33d Instruction, gives an Appeal in Cases of excessive Fines in a less Sum, than in Cases of Property: And the King must have designed that the Merits of the Cause should come before him by the Appeal, otherwise he cannot Judge whether the Fine be excessive or not.’

‘I believe that there is not a Man in this Province conversant in the Courts of common Law, who will not allow, that many iniquitous or false Verdicts have been given in it, and thereby great Injustice done. By the Laws of England every Wrong has its Remedy; what is the Remedy in this Case? They tell us the Judge will give a new Trial: But this Remedy depends upon the Will and Pleasure of the Judge; if he will not, the Subject has no Remedy. The Law of England abhors all arbitrary Power, and therefore the King has given his Subjects in the Colonies a Right to Appeal from every iniquitous Verdict, without depending on the good Will or Pleasure of any Judge. If no Appeals are allowed from the Supreme Court of New-York, the Court must become uncontroulable; however agreeable this may be to Judges fond of Power, it must be terrible to the People under their Jurisdiction.’

His Majesty's Council are seriously of Opinion, that the Privilege of Trials by Juries, which Englishmen enjoy above all other Nations, is in Truth a great and excellent Privilege: It is a Privilege which stands recommended by the Experience of many Ages, and by the tenderest Regard of our Ancestors, for whose Judgment we have the highest Veneration: It is in short the Birth-right of every British Subject, and ought to be maintained with the most unrelenting Firmness: But what is still more, it stands fixed, irrevocably fixed, by the known and established Laws of the Land, which the most cogent Reasons can never enable a Governor and Council to alter. Little therefore will it avail in Favour of an Appeal, that the Characters of those who would in such Case be the Judges, are conspicuously eminent and unexceptionable, or that iniquitous Verdicts are sometimes given by Juries, or that Men in a difficult [Page] Case would rather submit their Property to the Judgment of the Former than the Latter; for besides, that none can be so competent Judges of the Matters of Fact as those of the Neighbourhood, who are acquainted with the Parties, and the Witnesses, and often Times with the Matter in Controversy itself; and besides also the great Security to the Subject, which consists in submitting the Trial of Facts to one Set of Men, and the Determination of the Law upon those Facts to another, (which are Reasons that at first View give a Preference to Trials by Juries) the Impossibility of a Change, even in Favour of a Method, if any such could be devised, that would deserve a Preference, must be a sufficient Answer to any Thing that can be offered on this Head. The Governor and Council are Jus dicere & non Jus dare, and their judicial Capacity seems to have been designed in the original Constitution of this Colony, and in Imitation of the House of Lords, as the dernier Resort in the Colony, subject however to the Correction of a superior Judicatory in England, as essentially necessary for the Preservation of our Dependence; nor can the Crown (we say it with the most profound Submission) change the Law of the Land, because the King can do no Wrong. Any Thing short of Legislative Authority, would be inadequate to so important a Purpose, and tho' his Majesty may have thought proper to grant Appeals in Cases of Fines, and that perhaps in the Sense contended for by the Lieutenant Governor; yet, this is not in Derogation of the Rights of the Subject, but the Effect of his Majesty's Royal Clemency. By the Policy of Law, all Fines belong to the Crown, and as the King may remit them when he pleases, either in Part or in the Whole, he may without affording them any Cause of Complaint, and in Ease of the Subjects, direct such a Method of enquiring into the Merits of the Cause, as he thinks proper, to enable him to judge on the Quantum of the Fine imposed.

With Respect to unjust or iniquitous Verdicts, the common and Statute Law of England, as well as the Practice of the King's Courts, have provided ample Security against them; for besides the Remedy by new Trials which his Honour supposes to be inadequate to the Evil, because it depends upon the Will and Pleasure of the Judge; the heavy Sentence which the Law inflicts by Attaint upon Juries who give iniquitous Verdicts, must be an effectual Redress; the Verdicts impeached by Attaint, being Matters of Fact, are corrected by another Jury of Twenty-four Men, and the Manner of the Correction proves the strict Attachment of the Law to the Rule, ad Quaestionem Facti, respondent Juratores, [Page] the Reversal of the Judgment given in the first Instance, which is always the Consequence of an Attaint prosecuted with Effect, furnishes the most ample Security to the Subject, and satisfies the Demands of the Laws of England, which abhor all arbitrary Power.

The evil Consequences of dishonest Verdicts being therefore so effectually guarded against by Law, we cannot be of Opinion that his Majesty ever intended by a Deviation from the established Law of the Land, to give his Subjects in the Colonies a Right to Appeal from iniquitous Verdicts, in a Method unknown in the Law, and never applied in Ease of the Subjects in the Mother Country, who are doubtless entitled to an equal Share of the Royal Favour with his Majesty's American Subjects; and that in every Instance of Practice, wherein Errors in Fact are to be corrected, the Office is by Law imposed on a Jury of the Country, is manifested in every Case of Error, Quod coram vobis residet; for when a Man assigns Errors in Fact, he ought to put himself upon the Country, for the Jurors shall only be Triers of that, and not the Judges, Yelv. 58. Law of Er. 10.

And on audita Querela, which is also grounded on Matter of Fact, a Jury is ever to determine; as if a Release of a Debt given after Judgment, is alledged by the Party in Bar of Execution, a Jury must try the Fact, whether the Release was executed or not.

In short, the common Law knows of no other Appeals on Matters of Fact from common Law Courts, than by Attaint, Error, Quod coram vobis residet, and Writ of audita Querela, on all which, Juries determine; while on the other Hand, a Cause of Errors in Law is never brought before the Judges, but by Writ of Error, false Judgment, or Certiorari, and from Courts of Record, such as our Supreme Court is, by Writ of Error only, 2. Bacon, Abr. Title Errors 189.

His Majesty's Council are far from maintaining that no Appeals should be allowed from the Supreme Court of New-York, nor can we believe that the Judges of that Court did ever affect so dangerous an Exemption; on the Contrary, we are of Opinion with those Judges, that Appeals by Writs of Error, will undoubtedly lie from their Judgments, and will effectually prevent that Court from becoming uncontroulable.

The Method of Trials by Juries we think of so much Consequence, that we cannot dismiss the Subject, without animadverting on the Close of [Page] his Honour's Reasons, which were they well grounded, would naturally bring this excellent Method of Trial into Discredit. His Words are these;

Many of the Counties of England, tho' they be not of so great Extent of Territory, are more considerable in Numbers of People, Dignity of Persons, and Value of Property, than this Province is; therefore all the Inconveniencies may happen in this Province, which did in the Counties of England, while all the Property in those Counties were determined by Judges of the same County. I shall recite them in the Words of Lord Chief Justice Hale, viz.

All the Business of any Moment was carried by Factions, and Parties: For the Freeholders being generally the Judges, and conversing one among another, and being as it were the Chief Judges, not only of the Fact, but of the Law; every Man that had a Suit there, sped according as he could make Parties, and Men of great Power and Interest in the County, did easily overbear others in their own Causes, or in such wherein they were interested, either by Relation of Kindred, Tenure, Service, Dependence, or Application; the Remedy against these Evils which then prevailed, was by Appeal to the King.

Upon this we observe:

That the Evils thus complained of by Lord Hale, happened in a very remote Period, when Ignorance and Barbarity overspread the Nation in general; in the Reign of Henry II. which commenced above 600 Years ago, Learning was wholly ingrossed by the Lawyers and the Clergy; the Freeholders of the Counties who were the Suitors to the inferior Courts, were both Triers of the Facts, and sole Judges of the Law; and in Courts where Ignorance presided, and the Judges were of inferior Rank, and owed this Service by the Tenure of their Estates under the me [...]ne Lord, it was not to be wondered at, That Business was carried by Parties and Factions, nor that every Man sped in his Suit according as he could make Parties, or had Interest in the County; but that the Ignorance of the Judges, and not the ill Consequence resulting from Trials by Juries, is the Evil complained of by Lord Hale, Hale's Hist. of c [...]m. Law. 140. appears clearly from the Account he gives in the same Page, of the Method taken by the King to Redress the Evil; therefore says the Author, ‘The King took another and more effectual Course, for in the 23d Year of his Reign, by Advice of his Parliament, held [Page] at Northampton, he instituted Justices itinerant, dividing the Kingdom into six Circuits, and to every Circuit, allotting three Judges, knowing or experienced in the Laws of the Realm.’ Nor can it be thought probable, that so eminent and able a Judge as Lord Hale, could be so inconsistent with himself, as to disparage a Method of Trial, which he has taken Pains to display in every possible advantageous Point of Light; and for this Purpose, has devoted a whole Chapter in his excellent Book, called,See Chap. 12. The History of the common Law of England; a Chapter sufficient to convince every reasonable Man, of the peculiar Advantages attending the most excellent Method that ever was devised by human Prudence, for the Trial and Determination of all Facts.

To sum up the Whole, his Majesty's Council are clearly of Opinion, 1st. That omitting the Defects contained in the Instruments under Seal, by which an Appeal is sought in the present Case, an Appeal from the Verdict of a Jury, taking the Word in any Sense, is not known in the Law of England, it having been the established and continual Practice, from Time immemorial, to try and determine all Facts by Juries.

2dly. That the Statute of the 7 and 8 W. III. has erected the Laws of England, which were in Force at the Time of the Settlement of this Colony, as the Standard of Law in the Colony. 3dly. That his Majesty's Instruction, in which the Governor or Commander in Chief is directed to take Care, that no Man's Life, Members, Freehold, or Goods be taken away, or harmed, otherwise than by established and known Laws, not repugnant to, but as much as may be, agreeable to the Laws of England, (which is similar to every Instruction hitherto known to us, that has been issued on that Subject since the passing of that Statute) is supported by the aforesaid Statute, and is calculated to enforce an Obedience to it.

4thly. That in Consequence of the aforesaid Statute and Instructions, not only the Laws of the Colony, but the Practice of it's Courts, have always been in the strictest possible Conformity to the Laws of England, and the Practice of the King's Courts there.

5thly. That an Extention of the Laws of England, and the Practice of the King's Courts there, as transferred to this Colony by the said Statute, and enforced by the aforesaid Instruction, has been further enforced by solemn Adjudication before the King in privy Council.

[Page]6thly. That the Terms of his Majesty's 32d Instruction, have a necessary Reference to such Appeals as were known to the Law of England, and had been long used in this Colony; and that no other Appeals than in Cases of Error in Law (which are the only Cases of Appeal provided for in former Instructions) have, until the present Instance, ever been brought here.

7thly. That the Appeal intended by the said 32d Instruction, must [...] the Words of the Instruction themselves, necessarily be an Appeal from the Judgment of the Judges in Matters of Law, and that if the Instruction had intended an Appeal from the Verdict of a Jury, in the [...]ning of which, the Judges are never concerned, they, as being the most competent Judges of a Verdict founded on Evidence given before them, would never have been excluded from sitting in the Court above.

8thly. That tho' strictly speaking, there are several Species of Appeals, known in the Law, which are therefore generally called by their peculiar Names, yet the Instances are numerous in the Books, to prove that the carrying up of a Cause by Writ of Error, is in Law called an Appeal.

9thly. That wherever an Appeal is on Matters of Fact, as in Attaint, audita Querela and Error, Quod coram vobis residet, the Errors are corrected, not by the Judges, but by the Inquest of a Jury.

10thly. That therefore, a Departure from the established Law of the Land, in giving such a Construction to the Terms of his Majesty's 32d Instruction, as would make this Court cognizant of the Cause, as it is now attempted to be brought before us, that is, on Errors in Fact, would do Violence to the true Sense of this, as well as the other Instruction of his Majesty, by which constitutional Jurisdictions, and the same Measures of distributing Justice, as are established in England, are clearly intended to be transferred to this Colony.

11thly, and LASTLY. That Appeals on Matters of Fact, would not only be inconsistent with Law, the Royal Instructions, and the standing Practice of this Colony, but would be burthensome and ruinous to the Subject, by rendering the first Trial useless, procrastinating Justice, enhancing the Costs of Suit, and opening a wide Door for Perjury on the second Trial.

[Page]And in Cases wherein the Decision would turn upon an Inspection of Deeds, would render it impossible to administer Justice in the last Remove, without subjecting the Party to the utmost Danger of losing the most valuable Evidence of his Title; and in Causes wherein Views may be necessary, would deprive the Subject of the Benefit secured to him by Law. And for these Reasons, we are of Opinion, that this Appeal cannot be received.

§

ORDERED,

That the further Reasons of Mr. Justice Livingston, offered on Wednesday last, in Support of his former Opinion in this Cause, be entered in the Minutes; which are as follow:

§

May it Please your Honours,

BEFORE your Honours proceed to determine the most important Point that ever was before any Court in this Province; a Point on which the Rights of the People, and consequently the future Prosperity of this Colony in a great Measure depend;

I beg you would indulge me with a few Words, in order to confirm what I have already said, when in Compliance with your Request I gave you the Reasons of my Conduct. Your Honours are sensible that this Battery, raised against the Laws by which we have been so long governed, and a settled Practice which has obtained for so great a Number of Years, and which is exactly conformable to the Practice in England, is founded on the single Word Appeal in the 32d Instruction; and on the Supposition, that nothing else could be understood by it but such Appeals as are agreeable to the Practice of civil Law Courts: For if it was possible to understand it in any other Sense, no one would suppose that the whole System of our Law, which has been built up by the Wisdom of so many Ages, was intended to be overturned by this single Word. In order to shew how groundless this Supposition was, I observed to your Hono [...], that Writs of Error, and the several other Reliefs provided for by the [...]ws of England, against a Judgment, were properly termed Appeals; tho' that Word was but seldom used, for the Reasons I then mentioned. And for Proof, I relied on the authority of Dr. Cowel: I own this Authority to be but slender, because he was more of a Civilian than a common [Page] Lawyer; but as I was but just returned from the Country, and had but little Time amidst the Multiplicity of Business which a long and unexpected Absence crowded upon me, to prepare for this extraordinary Occasion, it was the best I could then produce, tho' I was sure what I asserted was well founded. I could indeed have produced several other Dictionaries, but as they all made Use of the very Words of Cowel, and referred to no Authorities, I laid no great Stress on them. I have now an Opportunity of confirming what I then said, by one of the best Authorities in the Law, my Lord Chief Justice Hale: And for that purpose I beg Leave to read two Passages in his History of the common Law, Page 150, and Page 48. [Here they were read.] These Authorities I suppose will be a full Confirmation of what I have advanced; and will show that this Appellant is very much mistaken in his Explanation of this Instruction.

For let it be admitted, as I think it certainly must after what I have shewn, that there are Appeals at common Law as well as in the civil Law, is it not evident to a Demonstration, that when it says you shall admit Appeals from the Courts of common Law, that it must mean such Appeals as are known to the common Law? And if Writs of Error are called Appeals in the common Law, to prove which an unexceptionable Authority has just been produced, and the Instruction says, that for the Purpose of Appeals, you are to issue a Writ in the Manner which has been usually accustomed; does it not appear clear as the Sun, that Writs of Error, or such Writs as are known to the common Law, are hereby directed to be issued? The contrary Explanation must appear to your Honours very unnatural, to wit, tho' there are Appeals by the common Law, as well as in the civil Law, yet, when it says you are to admit Appeals from common Law Courts, it means you are to admit them in the civil Law Form. It means you are to direct the common Law Courts to change the whole Form of their Proceedings in order to comply with the Instruction, and to form a motley Court which shall partake of the Inconveniencies of both the others, and enjoy the Advantages of neither. It means when it directs you to send the usual Writ, that you shall send such a Writ, as both for Matter and Form never was sent to any common Law Court before. It must be evident then, that this can neve [...] b [...] [...] Meaning of the Instruction.

Since your Honours have indulged me thus far, I beg Leave to read a few Lines farther in the same Book. The second Reason this great [Page] Lawyer gives, why Causes should not come before the Parliament, in the first Instance is, because by that Means the Subject would lose his Trial per Pares, and consequently his Attaint, in Case of a Mistake in Point of Issue or Damages, to both which he is intitled by Law. Here we see Chief Justice Hale positively says, that the Subject is intitled to a Trial by his Equals, that is, by a Jury, and also to his Attaint in Case of a Mistake in Point of Issue or Damages. If this be a good Reason in the Case here mentioned, it is also a good Reason against trying the Merits of Verdicts in the Court pretended to be erected by this Instruction; for tho' this does not deprive the Subject of a Trial by a Jury, yet it does much worse, it puts him to all the Inconveniencies of that Trial, renders it prodigiously more expensive than ever; and then makes it entirely useless. And it takes away the Remedy by Attaint, which is also here said to be the Subject's Right; for to what Purpose would it be to bring an Attaint against a Jury for giving a Verdict, which whatever it may cost, is not worth one Farthing to either Party, since the Matter must be finally determined by another Set of Judges; who for all Matters of Moment will become the standing Jury in all Cases without being liable to any such Penalty. And thus we should be deprived of Privileges which his Honour agrees with every Body else we ought to enjoy, because they are such as we are intitled to by the common Law, in the most confined Sense of the Word.

'Tis true it may be said, that the Right to bring an Attaint is not to be considered, because in a very long Series of Years, no such Action has been brought. But it cannot be denied, that the Privilege of a Subject to the Laws of England is very great, in this, that he cannot be divested of any Part of his Property but by the Judgment of his Peers, and they not only under the sacred Obligation of an Oath, but also under the Danger of an Attaint if they give a false Verdict. And this is a Privilege no Man in his Wits will ever willingly part with, who knows its Value.

For whatever Contempt may be put on Juries, in the Law they are of the highest Estimation, and no one ought to pretend to be wiser than the Law. The greatest Men have ever valued it as the best Way of trying Facts. And the Lord Chancellor himself, when a Fact is in Issue before him, delivers it to the King's Bench to be tried by a Jury. But the Advantages of this Trial by Juries, are so well described by Chief Justice Hale, in his 12th Chap. of the History of the common Law, already read in this Court, that I dare not presume to do Injury to the Subject, by Encomiums unworthy of its Excellency.

[Page]This Chief Justice, on whom no Man who has not made the Law his Study, ought to be ashamed to pin his Faith, prized Trials by Juries so highly, that in order to shew the Excellency of the common above the civil and other Laws, he pitches upon this and Descents, as two of its principal Perfections.

Therefore, your Honours will put too great a Value on this Privilege, to regard, in determining this most important Point, what is done in other Colonies; because, they have no Power to alter our Laws. If Causes are brought up by Way of Appeal from Verdicts in some of them; if two or three contradictory Verdicts are taken in the same Cause in others; your Honours will clearly see the Absurdity of such a Practice; and while you leave them to plead either Ignorance or Necessity for not conforming to the Laws of England, expressly enjoined by his Majesty's Instructions to his Governors, you will zealously support, according to his most gracious Majesty's Intentions, and Favour to us, every Practice consonant to those whosesome Laws.

Neither is this Appeal in any Manner favoured by Magna Charta, and therefore nothing surprised me more than to find that quoted in Favour of an Appeal. The Clause nulli vendemus, nulli negabimus, aut deferemus Justitiam, does no more prove that the King is to try every Cause himself, than every Writ or Pleading does, which supposes him present in all his Courts of Justice. This appears from my Lord Coke's Comment on those Words. And to shew how little Magna Charta favours such an Appeal as this, I will read the whole Clause from which these Words are taken, and a Part of my Lord Coke's Comment upon it. The Clause runs thus, Nullus liber Homo capiatur, vel imprisonetur, aut disseisiatur de libero Tenemento suo, vel Libertatibus, vel liberis Consuetudinibus suis; aut utlagetur, aut exuletur, aut aliquo Mode destruatur; nec super eum ibimus, nec super eum mittemus, nisi per legale Judicium Parium suorum, vel per Legem Terrae; nulli vendemus, nulli negabimus, aut deferemus, Justitiam, vel rectum. On which my Lord Coke says, "against this antient and fundamental Law, and in the Face thereof, I find an Act of Parliament made, that as well Justices of Assize as Justices of Peace, without any finding or Presentment by the Verdict of twelve Men, upon a bare Information for the King before them made, should have full Power and Authority by their Discretions, to hear and determine all Offences and Contempts committed or done by any Person or Persons, agiainst the Form, Ordinance and Effect of any Statute made and [Page] not repealed, &c. by Colour of which Act shaking this fundamental Law, it is not credible what horrible Oppressions and Exactions to the Undoing of infinite Numbers of People were committed by Sir Richard Empson, Knight, and Edmund Dudley, being Justices of Peace throughout England; and upon this unjust and injurious Act, (as commonly in like Cases it falleth out) a new Office was created, and they made Masters of the King's Forfeitures. But at the Parliament holden in the First Year of H. VIII. this Act 11, H. VII. is recited, and made void and repealed and the Reason thereof is yielded, for that by Force of the said Act it [...] manifestly known, that many sinister and crafty, feigned and forg [...]d Informations, had been pursued against divers of the King's Subjects, to their great Damage and wrongful Vexation: And the ill Success hereof, and the fearful End of these two Oppressors, should deter others from committing the like, and admonish Parliaments, that instead of this ordinary and precious Trial per Legem Terrae, they bring not in absolute and partial Trials by Discretion." In short, whoever will support a Practice of this Nature, ought by no Means to refer to Books of the Law; for the Laws of England abhor it, and bear Testimony against it in every Page. Neither can it be supported by advancing new Principles, such as these. 1st. The common Law extends to the Plantations, but the Statute Law does not. 2dly. The Laws of England extend to the Plantations, but the Execution being in the King, he can erect what Courts for the Distribution of Justice he pleases. Principles new as these are, unheard, unthought of, before this important Trial between Thomas Forsey and Waddel Cunningham, one would think needed some Proof, some Authority at least to establish them; for certainly they are not self-evident Propositions. But nothing of the Sort have I heard. On the Contrary, it is supposed by all Civilians, that Colonies carry out with them the Laws of their Mother Country. And if they do, they must take those with them, which are in Force at the Time they emigrate, because they are familiar and known. They can never upon their Emigration be obliged to have Recourse to those Rudiments of Law, which were first formed by their Mother Country. They can hardly be supposed to be so well acquainted with Antiquity as to know what they are. Neither can any good Reason be given, why they should not reap the Advantages of all the Improvements made by succeeding Ages. Besides, no Man can draw the Line between those Laws which stand upon the Authority of Acts of Parliament, and that of the common Law: For many Things are by common Law which first commenced by Acts of Parliament; many seem [Page] to stand on the Authority of Acts of Parliament, which were before by common Law. So that this Principle, if adopted, would produce more Confusion than a sudden Repeal of all Laws: By these Means the Trials by Battle, and Fire Ordeal, would be again introduced. In short it is not possible to suppose that our most gracious Sovereign, when by his Instructions he directed that the Laws should be administered in a Method as nearly as possible according to the Laws in England, intended we should conform to all the Adsurdities of an ignorant Age. No, his gracious Intentions doubtless were, that we should enjoy the Benefit of those Laws, which by the Improvement of many Ages were wrought up to the highest Perfection, and by this he conferred on us the greatest Blessing which his princely Wisdom could bestow, and took the best Method of securing the Dependence of the Colonies. So preposterous is it to suppose that it would be secured by depriving the People of this Colony of the Laws of England.

As for the other Principle, that the King can erect what Courts he pleases for the Distribution of Justice, it is not only contrary to Law, but it is big with the most dangerous Consequences. The King it is true is the Fountain of Justice, and the Execution of the Law is in him, by the Constitution of England; but the Mode of dispensing it is fixed by Law, and unalterable, but by Act of Parliament. He may erect as many new Courts as he pleases, but they must determine according to the Course of the common Law, and proceed on Facts found by Juries. But that he can erect Courts which shall have a Power to try Causes in what Manner they please, must appear extremely shocking to an English Ear, and to any one who has the least Idea of the English Constitution. This is expressly provided against by Magna Charta, as appears by the Authority just now read. On this Principle a Court similar to the Inquisition might be erected, and Torture introduced. By these Means the grand Difference between an English Subject, and a Subject of France, or Spain, or Turkey, would be annihilated; for that consists more in the Mode of administering Justice to them, than in the Laws themselves. Happy for us we live under a Monarch patriotic and beneficent, who glories in being the Sovereign of Free-Men, not of Slaves; and will reject with Abhorrence every Prerogative which may be exerted to the Ruin of his Subjects. Of this we had an ample Proof, when one of the first Acts of his Reign was to secure the Independence of the Judges, by parting with what was an undoubted Prerogative of his Crown; and I dare venture to prophesy [Page] that whoever seeks to recommend himself to his most gracious Majesty's Favour, by undertaking to prove that his Subjects are no better secured in their Liberties and Estates than those of the most absolute Monarchs, will appear to have taken the worst Way of making his Court. —

Before I conclude, as in the Prosecution of this Scheme, not only Juries but the Practisers of the Law, and the Judges have been treated with Disrespect; Justice obliges me to say, that I have a pretty general Acquaintance with the Practisers, especially with those that are most eminent, and that from what I have observed of their Conduct, I can declare, that I know none who do not behave themselves with a Candour, Integrity, and Disinterestedness, which does Honour to their Profession. And of this they have on this Occasion exhibited a Proof. They suppose the Appeal now brought illegal and injurious to the Country, and for that Reason, not one of them could be prevailed on to give his Assistance to, but all rejected the Project with Disdain. This will long be remembered to their Honour.

As for the Judges they or some of them are reproached, as forgetting their Duty in endeavouring to raise the Passions: On which I shall observe in the Words of a great Lawyer; that a Judge is not to be defamed or vilified with Respect to his Parts, Fitness for his Place, &c. for if this were allowed, it would be impossible to keep in the People that Veneration for their Persons, and Submission to their Judgments, without which it is impossible to execute the Laws with Vigour and Success. What Grounds there are for accusing them of raising the Passions I know not. When such Principles are advanced as tend to overturn a Constitution, of which every Englishman is fond, his Resentment will naturally be raised; and when the Mischiefs arising from such Principles are either shewn or hinted at, his Anger will be still more inflamed. But who ought to be accused of raising the Passions when this is the Case, I must submit to the serious Consideration of your Honours. Certainly our Duty obliges us to present to your Honours a full View of the Inconveniencies which must attend this Alteration of the Law.

It does a peculiar Honour to Juries, Lawyers, and Judges, that those who impeach their Conduct, declare against the Laws of England, that excellent System which can hardly be considered without Admiration, or spoke of without Rapture, and which our most Gracious King is so far from endeavouring to deprive us of, that he has particularly directed his [Page] Governors to conform to them as much as possible, by an Instruction, which lately and accidentally came to our Knowledge, whereby his Governor or Commander in Chief, is directed to take Care that no Man's Life, Member, Freehold, or Goods, be taken away or harmed in this Province otherwise than by the established and known Laws, not repugnant to, but as nearly as possible, conformable to the Laws of England. This shows the Propriety of the Observation, that the Judges ought not to be directed in their Duty by such Scraps of Instructions as may from Time to Time be communicated to them: For had we been directed in our Conduct by the Thirty-second Instruction, and misunderstood it, to signify in Appeal against a Verdict, we should have introduced a Practice, not only contrary to this Instruction by which the Laws of England are enforced, but to make Use of the Words of the Oracle of the Law, contrary to and in the face of Magna Charta. This Instruction alone I should imagine would be a sufficient Inducement to your Honours, to support the Practice of the Law here, in every Thing which is consonant to the Laws at Home.

The [...]st Thing I beg Leave to trouble your Honours with is, an Act of Parliament passed in the 4th Henry IV. Chap. 23, which runs thus: Whereas as well in Plea real, as in Plea personal, after Judgment given in Cour [...] of our Lord the King, the Parties be made to come upon grievous Pain, sometime before the King himself, sometime before the King's Council, and sometimes to the Parliament, to answer thereof, of new, to the great impoverishing of the Parties aforesaid, and in the subversion of the common Law of the Land. It is ordained and stablished, that after Judgment given in the Courts of our Lord the King, the Parties and their Heirs, shall be thereof in Peace until Judgment be undone by Attaint, or Error, if there be Errors, as hath been used by the Laws in the Times of the King's Progenitors.

This Act I hope will be sufficient to answer the Objections of the most scrupulous; for it appears not only to be made in order to prevent such Appeals as are now contended for, but also in Affirmance of the common Law. So that I confidently expect your Honours will unanimously reject this Appeal, and approve of our Conduct.

ROBERT R. LIVINGSTON.

[Page]

At a Council held at Fort George in the City of New-York, on Wednesday the 23d Day of January, 1765. PRESENT, The Hon. CADWALLADER COLDEN, Esquire, Lieutenant Governor, &c. • Mr. WATTS, , • Mr. DE LANCEY , • Mr. READE, , and • Mr. MORRIS. 
Waddel Cunningham, against Thomas Forsey.

A Petition of Robert R. Waddel, was presented and read, and is in the Words following:

To the Hon. CADWALLADER COLDEN, Esq Lieutenant Governor and Commander in Chief of the Province of New-York, and Territories depending thereon in America; and the Honourable his Majesty's Council. Judges of the Court of Appeals of the said Province.

The humble Petition of Robert Ross Waddel, of the City of New-York, Merchant, legal Representative of Waddel Cunningham, is most respectfully presented,

Setting forth,

THAT in an Action of Trespass, Assault and Battery, commenced in the Supreme Court of Judicature for said Province, by Thomas Forsey against Waddel Cunningham, a Verdict was given against the Defendant, for One Thousand and Five Hundred Pounds Damages, besides Costs of Suit, which Damages your Petitioner, who is Attorney for the Defendant, conceiving excessive and unreasonable, desired the Attorney and Counsel in the Cause, to Appeal from the said Verdict unto your Honours, as a Court of Appeals; which was absolutely refused by the said Attorney and Counsel.

That thereupon your Petitioner applied to George Harrison, Esq a Notary Public, attending in Court at the Request of your Petitioner, to move the Court for such Appeal, which he did accordingly, requesting the Court to make a Minute of his Motion, which was refused for the present [...] but the Court declared they would consider of it till next [Page] Morning, when the Defendant's Counsel advised a Motion to be made to set aside the Verdict, the Damages being excessive, which being made accordingly, the Court resolved not to grant it.

That thereupon a Paper in Writing was delivered to the Court, praying the Defendant might be allowed to appeal from the Verdict and Judgment thereupon, and a Bond tendered at the same Time, with good and sufficient Security to pay unto the Appellee, all such Damages, Costs and Charges, as should be awarded, adjudged, or decreed by your Honours on said Appeal, agreeable to the 32d Article of his Majesty's Royal Instructions to his Excellency Governor Monckton; a Copy whereof certified by the Deputy Clerk of his Majesty's Council, was also presented to the Court: Which Prayer and Request, as also your Petitioner's further Request then made, that the Court would be pleased to admit and Order an Entry to be made of such Motion for an Appeal, and the Tender of such Security as aforesaid, were also refused by the Court.

And as your Honours have already declared that an Appeal from the Verdict and Judgment as aforesaid, cannot be brought before your Honours, as a Court of Appeals; your Petitioner most humbly begs Leave to apply to your Honours, to grant an Appeal to his Majesty in his privy Council — To that End therefore,

Your Petitioner most humbly prays, your Honours will be pleased to allow an Appeal to his Majesty in his privy Council; and if such Appeal is allowed, that your Honours will be pleased to order Excecution to be suspended, until said Appeal is determined by his Majesty and Council; and that your Honours will be pleased to assign your Petitioner Counsel, in Order to bring said Appeal properly before his Majesty and Council;

and your Petitioner, as in Duty bound, will ever pray, &c.

ROBERT R. WADDEL.

New-York, 22d January, 1765.

A sufficient Number of the Members, exclusive of the Judges, not attending, the Consideration of the said Petition, is ordered to be deferred until Wednesday next.

[Page]

At a Council held at Fort George, in the City of New-York, on Wednesday the 6th Day of February, 1765, PRESENT, The Hon. CADWALLADER COLDEN, Esquire, Lieutenant Governor, &c. • Mr. WATTS, , • Mr. WALTON, , • Mr. DE LANCEY, , • Mr. READE, , and • Mr. MORRIS. 
Waddel Cunningham, against Thomas Forsey.

Upon the Petition offered by Robert Ross Waddel, as legal Representative of Waddel Cunningham,

THE Council are of Opinion, that the same being entered upon the Minutes of the former Transactions on the Appeal offered to be brought before the Lieutenant Governor and the Council, he have Copies of all the Proceedings relating to the same, and of this Opinion, for the Use of his Principal, whereby he may be enabled to seek such Redress as he conceives his Case may require: But as the Council were, and still are of Opinion, from the best Information they have been able to obtain, that no such Appeal lies to the Lieutenant Governor and Council, The Council apprehend the Lieutenant Governor and Council unauthorized to direct further upon the Prayer of this Petition.

His Honour the Lieutenant Governor dissented to the said Opinion, which is entered accordingly.

The preceding are true Copies, examined by Gw. BANYAR, D. Cl. Con.

FINIS.

Information about this book

Title statement

The Report of an action of assault, battery and wounding, tried in the Supreme Court of Judicature for the province of New-York, in the term of October 1764, between Thomas Forsey, plaintiff, and Waddel Cunningham, defendant.

Publication

Publisher

Text Creation Partnership,

Place of publication

Ann Arbor, MI :

Date

2009-04.

ID [DLPS]

N31326

ID [TCP]

N31326

ID [STC]

Shipton 41438

ID [NOTIS]

APX5054

ID [IMAGE-SET]

41438

ID [EVANS-CITATION]

99021834

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This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal. The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission.

Series

Early American Imprints, 1639-1800 ; no. 41438.

Notes

(Evans-TCP ; no. N31326)

Transcribed from: (Readex Archive of Americana ; Early American Imprints, series I ; image set 41438)

Images scanned from Readex microprint and microform: (Early American imprints. First series ; no. 41438)

Source

— The Report of an action of assault, battery and wounding, tried in the Supreme Court of Judicature for the province of New-York, in the term of October 1764, between Thomas Forsey, plaintiff, and Waddel Cunningham, defendant., New York (State). Supreme Court..

Extent

[2], iv, 68 p. ; 21 cm. (4to)

Printed by John Holt,,. New-York: :: in the year 1764.. (Half-title: Report of the case between Thomas Forsey, and Waddel Cunningham.)

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