answered that the personnel of the provincial council and the Privy Council 
afforded assurance that the verdict would always have its just weight; most 
litigants would rather trust such judges than the usual New York jury. From 
the minimum set in the misdemeanor appeal instructions, which was lower 
than civil cases, it was evident that the benefit of the subject rather than advantage 
to the ruler was aimed at in the instructions. The existent remedy of 
a new trial was inadequate, as entirely dependent upon the volition of the 
presiding judges. 229 On the following day Colden informed the council of 
his omission of what he conceived to be a remarkable instance of an "appeal" 
from a court whose jurisdiction derived from the common law—the Court of 
Hustings of London. 230 
On January 9, 1765, Justice Livingston entered additional reasons in support 
of his argument against the Colden contention. The entire opposition argument 
rested upon the theory that the word "appeal" in the instruction could 
only mean a civil law appeal, but it had been demonstrated from Cowel and 
Hale that the aforesaid word bore meanings reconcilable with common law 
usage. When the instruction ordered admission of appeals "from the courts 
of common law," it must have meant such appeals as were known to the common 
law. The phrase "in the manner which has usually been accustomed" 
similarly had reference to such writs. It would be an unnatural construction, 
when appeals were known to both the common and civil law, to assume that 
appeals from common law courts should be in civil law form. 231 As stated by 
Hale, the subject was entitled to the right of trial by his peers and also to the 
right of attaint. The former was rendered useless by the Colden construction; 
the latter was abolished by it. That attaints were now in disuse did not weaken 
their reason in law. Similarly, the institution of trial by jury might be criticized 
in operation, but the law still recognized its great value. As to the practice in 
other colonies, cited by Colden, it was not controlling and was open to criticism. 
Rebutting the use made by the lieutenant-governor of Magna Carta, 
Livingston asserted that neither Magna Carta nor any established principles 
of law supported a civil law appeal. New principles, that the common law 
extended to the colonies, but not acts of Parliament, or that the laws of England 
extended to the plantations, but their execution being in the King he could 
erect whatever courts he pleased, were neither self-evident nor proved by 
were not applicable to writ of error procedure 
and that the word "condemnation" indicated 
a new judgment on the merits. 
229 Ibid., 6. Cf. the further strictures on the 
judicial power to grant new trials {Conduct 
of Cadwallader Colden, op. cit., 448-49). 
230 Colden informed the council that when 
the King appointed commissioners to do full 
and speedy justice, they did not only reverse 
or affirm the judgment of the Court of Hustings, 
but gave such judgment as that court 
ought to have given {CO 5/1071/PP 71). 
231 Rep. Forsey v. Cunningham, 58-59.