was known to have been allowed. 213 Secondly, under the judicial oath a judge 
was bound to determine by the common law; since the common law knew 
of no appeal from a verdict to any court except wherein it was given, it would 
be contrary to the judicial oath to allow any other appeal. Smith was permitted 
to forego giving any opinion at that time on the writs issued by Colden. 214 
On the same date Justice Livingston also rendered reasons for refusal to return 
the two writs issued by Colden, waiving the many defects of form in 
these instruments. The inhibitory instrument, a great abuse of the royal authority, 
was illegal in several respects. If a writ of error had been brought, the 
court would still have been obligated to proceed to judgment and to sign the 
roll. The roll being in possession of the court and no proper method being 
taken to bring the cause before the Governor and Council, the prohibition 
might have been perpetual to the great grievance of the party concerned. Further, 
the Governor and Council were not competent judges of the merits, for 
it was impossible for them to be informed of the grounds of the jury verdict, 
since juries were sometimes guided by their own knowledge, especially as to 
the character of witnesses. 215 Directing his attention to the instruction in question, 
Livingston stated that it appeared from the previous instructional article 
that "appeal" signified nothing but "writ of error." That it had been understood 
as such by the council appeared from a recent proceeding in which it 
was questioned whether cognizance should be taken of a cause on writ of 
error in which it was objected that the matter involved did not amount to 
sterling. If the instruction related to civil law appeals, writs of error 
would have stood upon the same footing as previously. 216 The word "appeal" 
in the instruction was to be taken as generally connoting the removal of a 
cause from an inferior to a superior court, whether by writ of error, writ of 
false judgment, writ of attaint, or audita querela. The loose language was probably 
due to nonlegal draftsmanship, and furthermore the instruction was intended 
for the direction of those unversed in legal terminology. Some justification 
for the language existed, in that it might have been intended to include 
writ of false judgment, as well as writ of error, as a remedy against an errone- 
213 29 MS Mins. N.Y. Council, 19-24; Rep. 
Forscy v. Cunningham, 16, 18. The commission 
is set out at ibid., 17. 
214 Ibid., 20-21. The oath, allegedly of 18 
Edward 111, is set forth at ibid., 19-20. 
210 29 MS Mins. N.Y. Council, 24-28; Rep. 
Forscy v. Cunningham, 21-23. Livingston 
pointed out that the instruments were directed 
not only to the judges but also to all "the 
other officers of our said court, whom it may 
concern." So that in a valid return the judges 
must have joined with all the other officers. It 
was submitted whether such joinder was fit 
or decent. 
216 Ibid., 23-24. This point makes little sense, 
since the superseded instruction also contained 
a minimum. See 1 Labaree, Royal Instructions, 
#448. For the incident probably 
referred to here, see supra, pp. 220-21.