The Chancellor.
The preliminary question in this-cáse is, whether a writ of error will lie upon the matter before us.
Assuming the writ to have been properly brought, the questipn on -the merits, .though extremely simple, is, comparatively, of little moment; and was there no,-other ¡point for. discussion,,, I should have been silent, not from any doubt of my constitutional, right, as chancellor, to speak and decide on the case, but from motives of delicacy, as I- wish not to sit in review of decisions. assented to dr pronounced by mé, as- chief justice, in the court below.
But the point now under-examination did not, and could not, arise in the, supreme court ;tau# for the > more, full and complete view of it, T shall be obliged to touch on the whole matter of the case,, and shall submit the reasons and authorities -by which I, am-convinced, to the candid and intelligent consideration of the .court. '■ "• ; . / -
The leading facts are few. On the fifth of February, ISIS, George De Peyster went to Elijah Williams, a justice! of the peace in Westchester county, .and -entered- a Complaint of -a forcible entry and detainer of his messuage and1 dwelling house, by Gilbert Shotwell. Upon this complaint, the justice immediately repaired to the premises, and found the family of Samuel Briggs in possession ;■ arid be also-found' that De Peyster, with Thompson, his attorney, and several other persons, had arrived there before him, and were occupied in emptying the house of its furniture, Briggs refused to -surrender the possession- of the house, and the justice directed him to be taken into custody^ which was done, accordingly, and in the presence, and with the sanction of the justice, the house, was completely cleared of Briggs es family and effects.
This is the substance of the case, as taken from an unfinished record or return, which the justice' had prepared to the certi"e-rap issued and delivered -to-h-imj-and-asiakenfrom ¡the justice [43]*43himself while in extremis, and lying on his deathbed. It is, therefore, to be considered as equal to an official statement under the magistrate’s oath, for the return must have been drafted under the impression of that ¡sanction; and dying declarations are generally uttered and received as of equal solemnity. '
But this imperfect return of the justice was aided and supported by a number of affidavits to the same effect, and so far from setting up a want of jurisdiction in the supreme court to take cognizance of the case, the record shows that Isaac Clason and George De Peyster, when called upon to answer, produced a number of counter affidavits; and submitted the case, upon the Conclusions to be drawn from the affidavits on the one side as well as on the other.
The supreme court made no further decision in the case, than to restore Shotwell, or Briggs, as his tenant, to the possession of the house and farm from which he had'been so irregularly expelled.. The justice stated that Briggs was cohvicted, under the statute, of a forcible detainer, but the supreme court did not touch that conviction. The record shows that they did nothing more than award re-restitution to Shotwell, and that nothing more was prayed forion his part ; and this fact becomes very material; for, as I shall show hereafter, re-restitution is a matter resting in the sound discretion of the court, and no writ of error lies upon a matter resting in discretion. If the supreme court had intermeddled with the conviction of the force, by either affirming or quashing it, error would .have lain upon that decision; but in this case the court did no such thing, nor does the record allege any act of the court, but the single act of ordering re-restitution to Briggs. The justice was authorized by the statute under which the complaint was made, to fine and imprison upon his own view and conviction of the force. Sncli a conviction would have been legal; but possession cannot be changed, without the intervention of a jury, and if the justice takes that step, on his own view, he does an unauthorized act. He did such an act in- this case, and it was that grievance, and that only, that the supreme court redressed. They confined their interference (I speak from the record' before us) to the unlawful change of the possession; and upon affidavits, as applicable to that fact, they awarded restitution to Briggs. ; We have, then, at present, nothing'to do with the conviction or the [44]*44evidence ■ of it. This is not the point before us, nor was it .the ground of application to the supreme court. The- whole prayer, in that court, was to be put back into possession, and the -whole complaint here is, that the supreme court, upon facts disclosed, by .affidavit, thought proper to- restore Briggs to his possession. ' - ■ . . ■ •
I am prepared to show that this proceeding by affidavit was usual and regular.
Even if the causé below had been placed on the legality, of the conviction of the force, and not on the legality of the oust/r ■ of possession, the court had .sufficient matter before them to" gi-vé iSheni cognizance of-the case. A certiorari had heen. sued out 'and served, and the. justice made an imperfect, return, but before he completed it, he died. The court, in such a, case, was bound to be indulgent, and.to accept of the imperfect return, aided, as it was,, by the death-bed declarations of thé justice. Such a course is essential to the due preservation of private, right, and is dictated by common Sense as well as by justice and humanity. It is the maxim of law, that the visita-• tian of Providence works no injuryk -The law-is not so technically nice as to sacrifice substance to shadow. It is a more reasonable systém. Jt is, indeed, á collection Of written rea-son, and is never -assailed by ridicule,' except by those who either do not understand, or who mean to pervert it - If a judge at the circuit happened to die after taking the verdict, and before the return of the postea, the ancient law'allowed the' verdict to be returned by the. clerk, though if the judge had-been livingj. he tfas to make; the return. (Jenk. Cent. 216. pl. 59.) So> ,if" a justice takes an inquisition, or records a riot, he may deliver the record into-the-K. B,with his own handj without a certiorari. (2 Hawk. b. 2. c. 27. s. 44.) - Those who cultivate the law as a science, know that it is a Collection of principles, and if the case furnishes a principle, it then furnishes a rule for decision.. . ’ >
.. But all I need show, at present, is, that if the question be on the regularity . óf the possession gained,- (as it was. here,) it aí-' ways muy, and often must, depend upon matter of fact to be "disclosed by affidavit. For thisAve have the case of ’ The King v. Chaloner, K. B. 15 Charles II. (1 Sid. 156. 1 Keb. 572. 585. 1 Lev. 113. Com. Dig. tit. Forcible Entry and Detainer, D.) affprdi a precedent, complete and full to thq'yery [45]*45point. In that case, the K. B., as early as the year 1663, awarded a re-restitution, founded upon affidavits. The case was shortly this : the defendants- (being father and son) were convicted of a forcible detainer, upon the view of two justices of the peace, and fined and committed to gaol, and possession "of their farm given to one Smith. These defendants were brought into the K. B. upon habeas corpus, and offered to submit to their fine, but to the end that the court might award restitution, it was shown by several affidavits that one of the defendants (the father) had been in possession for 13 yeárs, and that Smith, pretending title, had procured the two justices to go -with him to the premises, and had used this contrivance to gala •possession, for which conduct, the court directed a prosecution 'against Smith and the two justices, and, after several motions, the court awarded re-restitution to the two defendants, and held that the possession given to Smith was illegal, for that the justices, upon their own view, intermeddled with the possession. It was then moved that the conviction before the justices be quashed, and it was much debated whether that could be done on motion, without the conviction being duly removed into theK. B. by error. With this last point we have, at present, no concern. It may or may not have-been correctly decided. The case of The King v. Elwell (Str. 794.) contains a different rule. But the case of The King v. Chaloner is strikingly analogous, and is a direct and unshaken authority on the principal point, viz. that the party who had been dispossessed of his farm by two justices, upon their own view, without a jury, and at the instance of a third person, who pretended title, was reinstated in his possession by the K. B. upon motion and affidavit 's, in all the books 5n which this case is reported or referred to, there is no disagreement on this point; It stands as good authority, and it completely vindicates the jurisdiction and course of proceeding exercised in this case by the supreme court. The present affords, indeed, the stronger reason; for in the case from Siderfin the two justices were living, and a regular and formal return of their proceedings could Mve been demanded and enforced. Here the injured party was deprived of that resource by the act of God, and could hope for nothing but the heads and fragments of a, return. It is scarcely necessary to observé, that the bringing up of the body’ of the #arty into the K. B. upon habeas corpus, was pot a removal of [46]*46the récord; of conviction. Those are totally distinct .operation?. The party may be discharged on habeas corpus, and yet the" Conyiefion below, remain undisturbed^, (Holt, Ch. J. in Groenvelt v. Burwell, 1 Ld. Raym. 454.) So, quashing a conviction, and •awarding re-restitutioh are very distinct acts, without any n6* cessary connection. The conviction of the force may be legal, and yet the ouster of the possession lawless. -
There are many other cases to be found-in which the question of re-restitution has depended entirely upon facts disclosed by affidavit. Thus, in the casé Of The King v. Stacey and others, (1 Sid. 287.) and again,' in the Case of The King v. Bengough, (3 Salk. 287.) the inquisition of ;a forcible entry gnd detainer being removed into the K, B; re-restitution was awarded upon affidavit that, the defendant was not.permitted to traverse'the force. In such cases the- question of re-restittition must depend upon matter aliunde. The record sometimes will, and at other times will not, disclose sufficient for the court to determine whether the possession was lawfully changed, or, indeed, whether there was. any change of the. possession. In the .last ‘cases cited), the refusal to receive'a traverse' of the force, did not appear by the record,-dnd the court were obliged) in Order to prevent manifest injustice, to receive proof of the fact, by affidavit; and if they are to receive affidavits on one side, they are bound to admit counter affidavits on- the other, and, the question Of a legal or illegal ouster of possession must depend upon the credit due' to the affidavits, of which credit the supreme court, and that-court only, can be the judge.
, I have thus shown, and, as 1 trust, to the satisfaction of évéry one, that the proceeding in the supreme cou rt, upon . the question of the restit ution of Briggs,; w as rpgularyand -supported by established usage. It is next , to be shqwn, that the application for re-restitution was an application to the sound discretion of the court; ás much so as an application, to hold to bail, dr to relieve Special bail, or to set aside a default, or to change the venue, or to award a new trial -, and if I establish, this point, it Will follow, of, course, that error cannot lie. ‘ "•:,..• ■ , ) "' • '
The- ...general rule laid, down-in all the- abridgments and elementary works) .is this.; that -the,-IC,JB.. has "a discretionary power oyer the point of ré-restittiíion, and that this power flows from • an equitable construction Of■ the statutes concerning- fori [47]*47cihlc' entry and detainer. If, then, it shall appear that restitution was illegally awarded by the justice, or was illegally exeeuted under his order, the K. B. may set it aside, and grant re-réstitution, if, upon the whole view of the case, they should deem it just and equitable ; but the defendant cannot demand this summary interference, as of strict right, (ex rigore juris,) for it rests upon the equity of the court. (Viner, tit. Forcible Entry and Detainer, O. 2. Bacon, h. t. G. Hawkins, h. t. b. 1. c. 64. § 63.) This doctrine, as I have stated it, is to be found in all the books which treat on this subject; It has existed for time immemorial, and has never been questioned, in a single instance, from the earliest periods of thq English law down to this day. It was expressly conceded in this ease by the opening counsel for the plaintiff. I will, notwithstanding, in order to make “assurance doubly sure,” east my eye over the leading cases; for this point being once well established, and it being also apparent, from the record itself, that this was the only point in the court below, and the only point before ■us, the argument against the legality of the writ must force itself upon the mind with all the weight and certainty of a mathematical demonstration. .
The general role first, appears in Dyer, (2 Dy. 122. b. pl. 24.) as early as the 2 and 3 Ph. & Mary, that the K. B., notwithstanding the tender of a traverse to an indictment, under the statute to prevent forcible entries ■ and detainers, might grant or stay restitution at their discretion. In Fitz-William's case, 45 Eliz. K. B. (Cro. Eliz. 915. Yelv. 32.) there is a practical illustration of the principle. That was an indictment under these statutes at the quarter sessions, and restitution was awarded to the party, after a certiorari had been delivered from the X. B, It was accordingly held to be irregular, as the delivery of the certiorari was a supersedeas to the power of the justices; but the court said the awarding of re-restitution was but matter in the discretion of the court, and as they conceived here had been an abuse, re-restitution was awarded. Again, in the case of The King v. Ford, 4 J. 1. (Yelv. 99. Cro. Jac. 151.) there was a conviction and restitution made by justices of the peace. The record being removed by certiorari to the X. B. the indictment was held ill; but on the question of re-restitutian, there were only three judges, out of five, for granting it, as it was a matter resting in their discretion, and there was a dif[48]*48fercnce of opinion as to the equity of the ease. In the case' °f The King v. Burgess, 15 Ch. II. K. B. (T. Raym. 85.-1 Keb. 343.) and which was 6Ó years subsequent to the former case, we find the Justices Twisden and Kelyng laying down the sau,e role, that restitution was of duty, but that re-restitution, (meaning the summary interposition of the K. B.) was of grace and discretion. In the following age, during the'time of Lord Holt, we find it stated by him in St. Leger v. Pope, 7 Wm. III. (Comb. 327.) to be usual when an .inquisition of a forcible entry or detainer was; quashed to grant re-résti'tütion, but-that the court were not bound to do it, ex mérita justicias; and, therefore, in Rex v. Toslin, 10 Wm. III. K. B. (Salk. 587.) wé meet with- an instance of an inquisition of forcible entry being quashed, but re-restitution denied. '
I will cite but one case more from the .English boolts: the case of The King v. Marrow, 9 G. H. K. B. (Cas. temp. Hardw. 164.). decided, while Lord Hardrwicke was chief justice Of the K. B.,. and in which the rule is laid down with great certainty and precision. It was-the case of an indictment, of a forcible entry, removed by certiorari to the K. B., and on motion for re-restitution, Lord It. cited and adopted the observations in Dalton, (Justice, Ch. 134. p. 319.) that restitution, was a tiding in the discretion of the court, and that they could grant, or deny it, as the justice and reason of the case should" require,
We have a casé to the same point decided in theisupreme court, in August derm, 1803. I allude to the case, of The People v. Shaw, (1 Caines, 125.) and I cite it with the more satisfaction, because the opinion was delivered by a judge who is now a member of the senate,
I presume I have now produced, cases Sufficient to satisfy the most sceptical mind, that the supreme court had a discretion in this case, to determine whether it was fit and expedient to reinstate Shotwell, or Briggs as his tenant, in the possession of the house and farm from which he had been so violently ejected. And the importance of this power to the public: welfare may foe expressed in the words of Mr. Justice Spencer, when delivering the opinion of the court in Lawton v. The Commissioners of Highways, (2 Caines, 179.) “ The necessity,” he observes, “ of a superintending power, to restrain and correct partialities and irregularities which may be committed by inferior officers,x is so obvious and indispensable, that the court ought, by no means, to deny themselves a jurisdiction of such salutary influence.” Being a matter resting in the sound discretion of the court, the exercise of that discretion is not the subject of review on a writ of error. This is another point, which I will now undertake to illustrate.
There seems to be no position more uniformly admitted, than that error will not lie on a matter resting in discretion. It is upon this ground that applications for new trials.; or for setting aside defaults and judgments; or for changing the venue ; or for time to plead, or to withdraw, or amend a plea ; or to hold to special bail; or to relieve or mitigate bail; or to award or deny a mandamus or a precedendo ; and applications on numberless other points arising in the progress of the suit, or in the ordinary details of the administration of justice, cannot be reviewed by a writ of error. There is this difference, as stated in the commentaries of Blackstone, (vol. III. 55.) between appeals from a court of equity, and writs, of error from a court of law : that the former may be brought upon any interlocutory matter, the latter-upon nothing but only a definitice judgment. It may not be amiss,,, however, to fortify this geiieral doctrine by a few adjudged cases. It might, indeed, be left to rest upon the fact, that there is no precedent in the books of a writ of error, in any such case, and this affords a strong presumption, in law, that no such writ will lie. It, is inconceivable that there should not be one instance to be found, óf error brought upon any of the numerous acts of discretion almost [50]*50'daily exercised by the courts, if it had been -: understood that error could have been sustained. The silence "of the law oh this point, is eloquence Itself. 1
. But the books speak also in affirmative language. It is well known that an application for a mandamus is an application to the discretion of the court, who will grant or refuse it, as justice and equity shall require; and yet it has been held in the house of lords, in the case of The King v. The Dean and Chapter of Trinity Chapel, Dublin, (2 Bro. P. C. 554.) and again, in the case of Pender v. Heale, (3 Bro. P. C. 178,) that a writ of error would not lié upon the determination of the K. B. to grant or to refuse a mandamus. So, on appeal from an order in chancery, appointing a guardian on the ground that the selectian was not well made, the-house, of lords dismissed the appeal, because the chancellor had a discretionary power in the selec-tian of a guardian. (Preston v. Ferrand, 2 Bro. P. C. 179.) This doctrine is explicitly acknowledged, in the jurisprudence1 <pf this country. Thus, in the case of Burd v. Lessee of Dansdale, (2 Binney, 80.) the supreine court oí Pennsylvania decided, in a cáse of error from an inferior court, that on the refusal to grant a new - trial,, error did not lie, though the reasons of . the court, were reduced to writing, and entered of|record, for they observed " that motions for new trial's were often founded upon equitable circumstances, in which much is left to the discretion i of the judge, The. high court of errors and' appeals in Pennsylvania settled á principié go verning this very case, as they are stated (2 Binney, 91.) to have decided that a writ of. error did not lie on a decision of their supreme court! on a motion unconnected with the trial of a cause. So it was decided in the supreme court of the United States, in the case of the Marine Insurance Company v. Hodgson, (6 Cranch, 206.) that the refu-. sal of an inferior court to allow a, plea tó be amended; or a new pléa to -be filed, or the refusal to grant a new trial, of to continue a cause, were matters which could not be assigned for error. * These! matters,”. said Mr., Justice Livingston, in dé* Evening' the opinion of the court,depended so' much on the discretion of the court below, which must he' regulated more by the particular circumstances of every case, than by any precise and known rule of law,, and of which the superior court can never become fully possessed,' that there would be more danger' in revising matters of this kindy than what might result. [51]*51how and then, from an arbitrary and improper exercise of this discretion.”
Here we have a series of decisions in the highest tribunals to which we can resort for precedent, or for which we can inculcate a veneration. These decisions establish these two points, 1. That the award of re-restitution, under the statutes of forcible entry and detainer, is not ex debito justicia, but rests in soutid discretion; and, 2. That error will not lie on a decision depending on discretion. The argument, then, on the ground of authority, is conclusive. There is no escape from this conclusion. We must quash the writ of error, or we must, by a mere stretch of power, determine to’ make new law for the ease.
But this rule is not only the positive law of the land, and as such, demanding our assent and obedience, but it is a rule founded on just and wise foundations of public policy, and it can be recommended to the good sense and to the good will of this court.
In the first place, such applications to the discretion of the court, are always supported by‘affidavits, and the court are called to weigh the credit of testimony, and to determine matters of fact. This court can never review such cases, without reviewing and judging upon the same testimony, which would h e assuming a jurisdiction never confided to it by the constitution. The appellate jurisdiction of the English house of lords, was the model in the erection of this court, and it was intended only to review the final judgments of the supreme court upon matter of law.. Every court of original and competent jurisdiction must be clothed with summary and discretionary powers over a vast field of undefined matter, constantly arising, and necessarily incident to the due administration of justice. This will be the case particularly with the highest court of common law, in which the deposite of great confidence, as well as of great power, becomes indispensable to the public safety.
Another reason why error cannot lie upon these cases of discretion is, that it lies only upon a decision that gives or concludes the right of the party, and such decisions, like the one now complained of, do neither. The question of re-restitution does not depend, necessarily, either on the legality or illegality of the conviction of a forcible entry or detainer. We have seen that the conviction may be good, and yet the mode of obtaining possession irregular; wc have seen that the conviction [52]*52maybe bad, and-yet re-restitution,. under the circumstances of the case, be denied. The question, of re-restitution need • ■ x . ' i .not meddle with the question on ■ the conviction. The one must appear by record, the other may appear-by affidavit, When the court award re-restitution, they do not determiné: the right of possession. They - decide only on the irregularity of taking possession under the -statute, in, the given, instance, and they leave the, party to go on immediately, and pursue, the possession in a moré regular way. . The court may eve» permit the party to renew the question of restitution by new affidavits. - The decision, -therefore,, does not touch' op 'prejudice the right of "possession, nor is it definitive in the case. It is nota res judicata, which could be pleaded, in bar of a fresh application." Here was no judgment, in any technical sense.of the ferm., Here were no facts, either found by á jury, or admitted by the-party,; We might as' well consider.-the decision of the court upon affidavits to' hold to -bail, or to c-hange the venue, or to set aside a default or an execution, as a judgment upon which error would lie. The-return attached to the writ of' error captains only a parcel of affidavits, made to,support-of to resist a special motion in the .supreme court. ' Every law-.ver, of the least technical learning, jhust know and feel the absurdity of calling the paper book before us, a record or judgment' containing the conclusions of law. How is it possible-for this court to sit- as jurors to determine on. the credit due to these-, contradictory affidavits1? And. yet, how cotild we otherwise know whether the' writ of re-restitution was dr;was not discreetly awarded ? Was such a writ,of error ever before heard of in the annals of any appellate jurisdiction ?1. We have seen that.the statutes, 'Of which so muck has1 been said, and that tl^is power, exercised by the supreme court, were in existence and activity, as far back as the reign of Elizabeth; and these statutes* have been- re-enaéted here, when the .pow.eit in question, as grafted upon these statutes, was as ; well' known, and. settled as, mf branch of the law; Ño alteration, nq. amendment, was made ■ by the legislature. In ■ short, ¡ the vefy. bringing of-a-writ o.f error in this case, will be thought by many to - bo a reflection-on this ¡court; It implies that its. character abroad is a character of infirmity,: It looks like an experiment to seq to-what extreme: depths of degradation-we tnight be conducted. But I have nd> apprehension of síich results. The community are bound to. place" higher confidence'in the talqitfs hpfi, learning qf the. pro^ [53]*53fessional, and in the understanding and firmness of the unprofessional part of this court. When a case arises which strikes at first principles—.which touches the deep foundation of the law, I presume that all will zealously unite in protecting the, fair fabric of our jurisprudence.
. But we are told that the power exercised by the supreme court is dangerous to public liberty, and must now', for the first time, be controlled, even by the assumption of an unprecedented power in this Court. This language ought, at least, to have been supported by some strong case of oppression. Hard cases, I know, do sometimes make bad precedents. The imagination is inflamed with the passions, and the heart seduces the judgment. But here there was nothing done- which a good man ought to wish undone. Let us look, for one moment, into the merits of the case, and I am persuaded we shall find nothing in the decision which ought to awáken the sensibility, or disturb the moderation, of the court.
Samuel Briggs, of the county of Westchester, happened,, on the fifth of February, 1813, to be tenant to Gilbert Shotwell; and he w;as, on that day, with his family and goods, suddenly and violently, turned out of his house, into the street. The prosecutor, at whose instance this act was performed, was, ostensibly, George De Peyster, but, really, Isaac Clason, a merchant of the city of New-York. And how was this ejection of Briggs and his family effected ? If we do not applaud the end, we cannot but admire the means. In the evening of the preceding day, De Peyster, in company with William A. Thompson, his attorney, came to the house of the deputy sheriff, and, delivered to him a writ against Briggs, and requested him to serve it on the next day, at Briggs's house.- Let us mark this fact; it is disclosed by the deputy himself. In the afternoon of the next day, Or the fifth of February, Briggs Was arrested at his house, at the suit of De Peyster, in the sum of 3,069 dollars ; and to procure bail, he was taken to his father’s residence, a distance of three and a half miles. While he was in this manner detached from home, the complicated plot was unfolded. De Peyster, in company with Elijah Williams, a justice, and William A. Thompson, the attorney, came to his house while absent, and began to turn his family and furniture out of doors. On his return, before they had finished the work, he remonstrated; but the justice and the .attorney said it [54]*54was done according to law, and the justice ordered him into custody, because he would not give his consent ; and he was taken by the collar and led into the street. This I believe to be the plain' unvarnished state of the case ; and the supreme court’ deeming this proceeding altogether lawless, thought it their duty, in the exercise of a sound discretion, to reinstaté . Briggs' in his possession. This is the act. now complained of. The court held it to be a clear point, that no change of possession can take place, under the- statute, until the justice has summoned a jury of twelve men, to determine, upon their oaths, the . existence of the -force. ' By dispensing with this admirable security of private right, the whole proceeding was irregular. If Clason> had unduly lost thé possession in the October preceding, as was. suggested, he .should,, have called -upon the aid of the law to regain that possession. ,It formed no apology for this oppressive and violent proceeding. The law has a tender regard for the asylum of a private dwelling; debet sua cuique domus esse perfugium tutisiiinum¡ The court were not - to travel back to former transactions. They could only look., to, the character of the case before them, and it really appears to'me, that no man, whose moral sense is not perverted,- can think of it,, or can speak of it, without indignation. It is in vain to pretend that this was a mere private trespass, for which the. injured party had his private action. The. case wears a graver aspect. Here was a justice of . the peace,, who appeared clothed in the authority of a magistrate, 'and professing, to act upon a complaint made to him under the statute against forcible entry and detainer.; This was-avowed by him at the time. It was avowed by him in the record he had drafted. It was avowed by him with, his latest breath. -Here was,: also; an attorney, who was reading from' a book, and declaring the same thing. The poor, affrighted > victim, would have made resistance to a mere private- trespass. But he was ■ overawed by the sounding titles of law, and magistrate, and attorney ; and- those symbols of right to which - a good citizen is disposed to pay respect and obedience, were' shamefully . prostituted in this unworthy transaction. Was it not, then, the bounden duty of the supreme court to restore. Briggs to Ms possession, ■ and thus to exercise the- discretionary power with which they were clothed,' and which bad beem sanctioned "by the experience- of ages ? Were they to sit still and suffer [55]*55tlie forms of law to be so grossly abused ? Is there any thing, at least, in the act of the supreme court, so extraordinary, as to warrant this court, in its anxiety to redress it, to usurp a jurisdiction which the constitution never intended, and which is unknown to the law ?
But this court is advised to construe with great liberality its power of review, and it is even asserted, that its capacity to sustain writs of error is greater than that of the English house of lords. As I consider such doctrines to be alarming heresies, and dangerous to our constitutional rights, I must beg the patience of the court, while I bestow a few thoughts on their merit and tendency.
My position is, that a writ of error will not lie here, except upon a final judgment of the supreme court upon a question of law, and that our constitution and statute intended to go to the extent of the British usage on this point, and no further. This is evident, from the language of the constitution and the statute, and from the whole scope and structure of our judicial system. No other construction can preserve its value, its safety, its symmetry, and proportion. It appears to me also to be the dictate of sound policy, and, for reasons which cannot but be felt by every member, that this court should not exercise appellate powers but in cases of clear and undoubted jurisdiction. If writs of error ought to be more extensively applied than they now can be under the existing rules and usages of law, we have a legislature always ready and able to afford every requisite remedy; and this, I presume, will be admitted to be the legitimate mode, if any there be, of enlarging the powers of this court, so as to embrace cases depending on discretion. But if we had the right, we ought to weigh well the mischief of creating the precedent of writs of error upon mere collateral and discretionary proceedings in the supreme court. If an execution in ejectment be irregularly issued, the court will set it aside, and restore the possession. This is a very ordinary case of jurisdiction; (Dacres v. Doe, 2 Blacks. Rep. 892. Goodright v. Noright, Barnes, 178. Anon. 2 Salk. 583.) and yet, upon the new doctrine, a writ of error would lie even for setting aside an execution. It must equally lie in every stage of a cause, and upon all those numberless acts and decisions to which I have alluded, and which spring up almost spontaneously in the progress of a suit. The bounds of the [56]*56supreme court would ’equally be ■ enlarged;. and 'that tribunal. would be oppressed with writs of error from the collateral decisions in each of the numerous courts of common.pleas.; for. they all have a like discretion, so far as may be incident to the cognizance of causes. I-f every order, in every such case,, founded. upon affidavits, be v. judgment on which error may be brought, it- must lie as well from a county court to the supreme court,. .as from the. supreme court to this.. And what a harvest would: then .arise for the activity of the, .profession T No 'considerate.man can contemplate, without terror, the abuses of such an innovation, : A Avise lawyer will, no dptlbt, provide competent organs, through which all private rights may be pursued, and all private injuries redressed, .but, he will never open, too wide and too freely, the door to the never-ceasing. spirit of litigation.: If he-does, law-suits will beconhe" a public grievance; Justice will be strangled by the very means devised for her protection; The delay, vexation, and- expense of suits, will become intolerable. We are all,, no, doubt, apprized of the heavy tax to suitors which appeals to this court produce, not only by the sum. in which the losing party is amerced, but by the heavy . extra fees which each party is obliged to pay to their .learned counsel; If we become,, therefore, fcoo loud and: seductive in our calls for business, and if we' open to ,the sharp-sightedness of avarice new avenues to litigation, we shall, most assuredly, perplex and agitate the whole current of jus- / tice. The love of gain, and the obstinacy of contention, -are active - as well as deep-rooted .principles in the human breast. No man who can well afford it will desist from contending, with his antagonist ón every point, and on every motion capable of doubt, until he has taken his chance of a final decision in this court,. The lover of quiet will hate' such endless contention. The man, of moderate means-will become " faint in the contest. Small claims will be relinquished as .not worth the expense. The diffident suitor will yield, to the presumptuous, and the rights of the poor-will frequently be crushed -under the'' ovefbeariug dppKession of the. rich; ' ■ . .. . . • :
■Nor must we indulge the hope, that this ca'n be only an imaginary picture. I know better,.. The business in the, supreme court ¡depending upon' affidavits,, and not.involving any final decision on the merits, is almost inconceivable. The average number of cases must certainly exceed five hundred, and, probably, [57]*57may a thousand, which are annually brought before that court upon special motion, and decided upon affidavits. Each of those cases are applications to the sound discretion of the court, and writs of error will lie on all those cases,' and bring up all those enormous piles of affidavits, with just the same propriety that it will lie in this case. And can there be any member’ of this court who can even think of such ah enterprise, without feeling the whole head sick and the whole heart faint ? Can this court, for a moment, wish, and much less meditate,, to depart from the precedents set us by the wise men who have gone before ns, and of opening the door of review to such a flood of extraneous matter depending on the sound discretion of the courts of law? It would require our whole time for the whole year. Even then we should fail; for,we could neither sustain the labour, nor command the attention. The attempt would ■ terminate in public misery, and in our own confusion and disgrace. I speak, as to wise, men, the truth in soberness, and, I hope, without offence. This court was never organized for such purposes. It is too numerous to consult together. It is pressed with other and higher duties. It cannot be familiar with the practice of the courts. It is not their art and science. It has not been their education and discipline. This tribunal is not competent to fulfil the judicial function, unless it follows the letter and spirit óf the constitution, and confines its jurisdiction to “questions of law” arising on final “judgments.” Such cases almost always present single, dry, elementary points, and •are,, in some sort, appeals to the moral sense and the common, reason of mankind.
The spirit of litigation requires checks rather than excitements. We may all recollect the impediments which the legislature; a few years ago, very wisely threw in the way of the prosecution of one species Of writs of error, I mean certioraris to justice’s courts. The statute required the supreme court to disregard all defects of form in matter of law, and to decide on the very right pf the case; and-it limited the plaintiff’s costs, if successful, to 25 dollars, but subjected hint to full costs, if he failed; Yet theré are, annually, upwards pf 200 certioraris brought to a hearing before the supreme court, and many of them not of 5 dollars in value, and scarcely one of them that will defray ffie expense of the suit. It is probable that there aré hundreds [58]*58beside which are-ne ver brought to a hearing, but the parties are ‘coerced into an -accommodation, for fear of the expense. We have also, at this very session, had eightcases brought up on writs of error from the supreme' court and argued; and there wereseverai more ready for argument, if the court could have afforded the time. Í mention these facts to show that the facility of suing out -writs of error, and" the extent of the right, is already amply .sufficient. There is also one other fact >vhich T beg to bring to the attention .Of the court. The new revised laws of thelast, session have, given an- encouragement to writs of error; .which is not known in England, and' was never before known here, and which I did not discover until I saw the rule as drawn up. the .other day, in the case of Spencer v. Southwick. I con-fess the discovery struck me with astonishment :and concern. I allude to the revised act, passed the 12th of last April, granting to (he .plaintiff in: error his costs in error, at the discretion of the court, on reversal of the judgment below. This is making an unfortunate defendant in error pay, not for his vexatious or false Clamour, but for the.mistake of the court below, on a point of law, and" in England, and in this country, until now, it has always been thought unjust. The common law gave no costs Upon any-writ of error, and the statutes of 3 H. VII. and 8 and 9 Wm. III. (which were adopted here without alteration in -the. former revision of our laws) extended only to Cases of aft firmance of judgments, and that very reasonably, said the court of K. B., in Wyvil v. Stapleton, (Str. 615.) and that very reasonably, also, said this court, in the case of Le Guen v. Gouveneur & Kemble, in the year. 1800,(1 Johns. Cases, 523.) when they un'anft mously concurred in opinion, that, on reversing a ju dgment or decree below, there were no costs in error; for the court said «it Would, be-unreasonable to compel a person in case of a reversal, to pay costs for the error of .the court below.” It lias, however, in the newly-revised statute, been ordained otherwise, but I hope and trust that this court, in its wisdom, will, at last, hat the door against writs of error ‘ in untried- cases, where we have neither guide nor landmark.
. There is .also another fact on this subject of .costs, which ren!ders the soiight-for ihnovatioffthé more" dreadful. I allude now to the- new fee bill; passed, last April, which has advanced the costs in-litigated cases, in all: the courts below, 25. per cent, and [59]*59in this court, in all cases, more than 100 per cent¿, and that by' force of these additional words : “ and other necessary entries or proceedings in a cause.” The added words I mean are or proceedings. They are, apparently, very innocent and harmless, but the losing party will find that they are pregnant with power. I know the latent energy of those words. I have witnessed it in taxation. They make the party who fails, pay for all the voluminous cases distributed, at thé rate of 1 shilling for every 72 words. In this very case, loaded as it is with affidavits, (and if error lies, they were all necessary,) I make the costs of the 33 error books amount to upwards of 300 dollars ;(a) and all this an innocent party is to pay, and for what ? for the error of the court below. Under all these alterations as to costs, would not this novel invention of bringing writs of error upon affidavits, become the source of the most tremendous oppression ? And when I said .that I could recommend the old established, law to the good sense and the good will of this court, I ask now have I not succeeded ?
They are extremely moderate and guarded in England, on the subject of writs of error. I will give to the .court, on this point, an interesting fact. According to Colle’s and Brown’s parliamentary reports, (and which have collected all the cases to be found,) there were from the year 1697 to the year 1778, (a period of eighty years, and that, too, the most happy and flourishing in the English history,) only sixty-four cases in error brought to a hearing in the house of lords. We must conclude from this fact, that writs of error are there confined within very legitimate bounds, and that the suitor never presumes to speculate in new paths, nor to make large demands upon the credulity of the court. '
Indeed, when we take into consideration the cautious and temperate sprint which pervades the English. administration of justice, and the diffidence -with which their learned judges exercise the power of review, it is nq longer a matter of wonder that their system of law should be as renowned for its stability as for its wisdom. And, since Providence has permitted that system to be established here, in all its maturity and perfection, it ought to be the just pride, as it is the bounden-duty, of this [60]*60court, to transmit it unimpaired to posterity, and especially te' preserve the reputation which is due to the judicial character of this state. ", . ■
I have now finished the question which I undertook to examine, and the following prepositions appear to me to be true:
1. That it was the Usual and proper course for the supreme, court to examine, upon affidavits the regularity of the ouster of Briggs. " , .
2. That it. rested in their sound discretion, under all the circumstances of the casé, whether or not they would order the re-restitution of Briggs. : ,
3. That such an Order, is not the subject of a writ of error ; and : '
4. That in justice and good policy, it ought not to be subject to one. ■ ,
I am, accordingly, of opinion that the writ of error ought to Be quashed, . „ :
Lewis, Senator, was of opinion that a writ of error was properly brought in this case; and that the decision of the supreme court ought to be reversed. ,
Wilkin, Senator, Was of the same opinion.
Lewis, formerly Ch. J.