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 31] 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:

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 33] 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 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 34]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 35] 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 36] 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 37]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 38] 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 39] 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 40] 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 41] His Honour in the Sixth Paragraph observes, that,

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 42] ‘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 43] 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 44] 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;

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 45] 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.

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 46] 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:

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 48] 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 49] 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;

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 51] 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 52] 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 53] 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 54] 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;

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 57]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 58]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.