possible remedy, but it depended upon the judge solely; no error could be 
assigned for refusal to grant such new trial where the evidence on which the 
verdict was given did not appear. Colden noted that in the eastward colonies 
to remedy perplexity of witnesses and jury by counsel all evidence was taken 
down in writing in open court, delivered to the jury, and made part of the 
record. Thus, the jury could with greater certainty deliberate on the evidence, 
and either party had a right to appeal to a superior court on the whole merits 
without dependence on judicial will for a new trial. Such method established 
in all the colonies would in Colden's opinion tend greatly to the security of 
property, to maintenance of the royal prerogative, and to the dependence of 
the colonies on the mother country. 222 
Commenting upon the arguments of the judges, Colden labeled as mistaken 
the argument that domestic limitations upon the royal prerogative in relation 
to the judicial system extended to the colonies. The common law of England 
did not control the judicial establishments in the colonies, so that the King 
could give such power to the colonial judiciaries as most conduced to obtaining 
justice. Colden, in reference to the "usually accustomed" manner argument, 
declared that such phrase had reference to the manner "usually accustomed" 
in cases of appeal, not the manner "usually accustomed" in the 
colony. 223 As to the objection to the expense of "appeals," the present enormous 
cost of litigation in New York was unfavorably compared with Massachusetts, 
where "appeals" prevailed. The necessity of civil law instruments 
such as interrogatories, etc., was removed by having the evidence put in 
writing below; if witnesses were to be examined before the council, it might 
be done viva voce in open court and put in writing by the clerk of the 
council. Taking evidence in writing below also eliminated the hypothetical 
danger of perjury. As to the increased burden of conciliar business, it was 
pointed out that the Supreme Court sat only six weeks a year, whereas appeals 
would not consume as much time as original causes and would probably 
be fewer in number. In conclusion Colden advised that the instructional 
ambiguity be removed, that directions for the method of proceeding be given, 
and that such method be particularly extended to all cases in which title to 
222 7 Doc. Rel. Col. Hist. N.Y., 682-83. The 
anti-Coldenites replied that arguments drawn 
from practice in the chartered colonies were 
not applicable in New York, a royal province. 
1 n the former, government was in the hands 
of officials autonomously appointed or elected; 
in the latter, crown appointees ruled without 
colonial control (Letter Book of John Watts, 
325-26). 
223 7 Doc. Rel Col. Hist. N.Y., 683. Cf. The 
Conduct of Cadwallader Colden . . . Relating 
to the fudges Commissions, Appeals to the 
King, and the Stamp Duty (1767), 2 Colden 
Utter Books, NYHS Coll., Pub. Fund Ser. 
(1877), 448, where Colden makes the point 
that rules of proceedings might from different 
circumstances be unavoidably different in the 
colonies from the practice of the courts at 
Westminster and at the same time consistent 
with the laws of England.