On the sixth day of March, Judge Edmonds delivered in the case the following opinion:
I have examined the question presented to me on this motion with great care; for I am not ashamed to confess that I knew very little about the matter, how far the writ of error, of itself, was a supersedeas at common law, irrespective of any statutory provision; and I have bestowed upon it all the labor that my other duties would allow—for I hold, with Lord Mansfield : “ never to give a judicial opinion upon any point, unless I think I am master of every material argument and authority relative to it. It is not only an act of justice, [561]*561due to the public and the parties, to weigh well the grounds and reasons of the judgment, but it is of great consequence to explain them with accuracy and precision in open court, especially if the questions be of a general tendency, that the law of the land may be certain and known.”
Hy examination on that point, as it has turned out, was not necessary to the determination of the motion before me, but it has enabled me to feel that I am master of every argument and authority bearing on the motion, and to arrive at a very clear conclusion in my own mind, as to what my duty is in deciding it. I have been the more careful to give this subject all the consideration necessary to enable me to determine it accurately, because the position assumed by the very respectable counsel for the defendants struck me so forcibly, oh the argument, and caused the inquiry constantly to occur, whether it was possible, that the law at this day (unless by express enactment of statute) did authorize a party, against whom a solemn decision of this court had been pronounced, at his own volition, and without the intervention of any court or officer of justice, to arrest that judgment and stay its execution? It would cumber my opinion too much to state here the process or the results of an inquiry which has led me so far back into the annals of our jurisprudence, for the first act in relation to wilts of error was passed in the reign of William I., between A. D. 1066 and A. D. 1087. I must content myself with stating the result as it bears on the question before me.
The writ of mandamus has two aspects, one under the statute, and the other at common law. Its power in both cases is alike, but the proceedings in the two eases are different, as is the mode of reviewing and correcting any error which may occur, either in those proceedings or in the final determination.
Under the statute (2 R. S. 586, § 54), the relator, on the coming in of the return to the alternative writ, may plead or demur thereto, whereupon such proceedings may be had as to make up a record of the final judgment. On a judgment thus made up, and flowing from proceedings thus authorized [562]*562by the statute, I entertain no doubt that a writ of error would lie. . .
The mandamus was originally regarded as in the nature of criminal process, and in some of the States it is so yet. (State v. Bruce, Const. R. 165, 174; S. Car.) But in our State it is, doubtless, civil process. The part of our Revised Statutes relating to writs of .mandamus and prohibition is the second title to the ninth chapter of the third part, which part is “An act concerning courts and ministers of justice, and proceedings in civil cases.” The third title of that chapter relates to writs of error, which are given “ upon a final judgment or determination in all civil cases.” (2 R. S. 591.) That, however, is not this case, inasmuch as the statutory proceedings have not been taken here, and consequently .there cannot be any record of final judgment -on which the writ of error could operate. The proceeding has been wholly on the common law side, and the decision has been that of a special motion which cannot be reviewed upon a writ of error. It may be,- as this court intimated in The People v. Commissioners of Highways of Hudson (6 Wend. 559), that permission may be granted to put in a formal demurrer, and so perfect a record of final • judgment, for the purpose of furnishing aliment for a writ of error, but that has not yet been done. A motion for that purpose is now before me" in which I have some doubts, because the remarks in 6 Wend, were obiter, and the propriety of that course has elsewhere been doubted. But whatever may be the conclusion to which I shall arrive in that regard, this case is not yet, and was not when the writ of error was allowed, in that condition, and was not, therefore, one on which the writ of error under the statute could be brought. .
Looking at the proceedings in this case, then, in their true light, as under the common law, it seems to me to be established beyond question that a writ of error will not lie. I do not mean to be understood as claiming that the decision of this court, awarding a peremptory mandamus, is final, and cannot be reviewed. Besides the mode of review indicated in [563]*563the case in 6 Wendell, it may also be obtained by certiorari, and in some instances on special motion, as in the case in 1 Caines’ E. 8. It is enough for the purposes of this motion that the writ of error will not lie; and if it does not lie, it will not, of course, supersede the execution of the peremptory mandamus.
In 2 Saunders’ E. 101, note a, it is said, “ a writ of error would not lie at common law, to review the decisions or judgments of the Court of Queen’s Bench, or courts of the counties palatine, in respect to writs of mandamus, and the proceedings thereon. But this is remedied now by Stat. 6 and 7 Vict. ch. 67; ” and the reason given is, that regularly no writ of error doth lie unless there be a judgment, or an award in the nature of a judgment; for the words of the writ are “si judicium redditum sit” etc. (Co. Litt. 288 b.)
This position seems to be abundantly sustained by authority. In the case of The Dean and Chapter of Trinity Church, in Dublin (8 Mod. 28, 1 Stra. 543), when it was before the King’s Bench, where it had been brought on a writ of error to the King’s Bench in Ireland, the writ of error was quashed, because it would not lie on a mandamus, and one among the reasons assigned was, because “ the right of any person was not determined on a mandamus. It gives a remedy where there is a seeming probability for it, and it settles people in their possessions, so that they may be able to defend their rights, or by virtue thereof, to bring an action for things incident to the possession; and if a writ of error would lie in such a case, it would entangle all the public acts of annual officers in most corporations and parishes.”
That case was taken to the house of lords, and the decision of the King’s Bench there affirmed. (2 Bro. P. Ca. 555.) The same question was again before the house of lords the next year, in Pender v. Herle (3 Bro. P. C. 178) and the same decision was again made. These cases were before our Eevolution, and were therefore, under our Constitution, the law of the land. They are so yet, unless the statute has altered the rule, and I am bound by them as the law of this case, which [564]*564I am not at liberty to disregard. The rule has not, however, gone without its sanction in our own courts. In Yates v. The People (6 J. R. 335), in our Court for the Correction of Errors, these cases were commented on by the Chancellor, Ch. J. Kent, Judges Spencer and Thompson, and by De Witt Clinton, Senator, and by all of them regarded as well settled law. Upon what pretense can I regard it otherwise?
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On the sixth day of March, Judge Edmonds delivered in the case the following opinion:
I have examined the question presented to me on this motion with great care; for I am not ashamed to confess that I knew very little about the matter, how far the writ of error, of itself, was a supersedeas at common law, irrespective of any statutory provision; and I have bestowed upon it all the labor that my other duties would allow—for I hold, with Lord Mansfield : “ never to give a judicial opinion upon any point, unless I think I am master of every material argument and authority relative to it. It is not only an act of justice, [561]*561due to the public and the parties, to weigh well the grounds and reasons of the judgment, but it is of great consequence to explain them with accuracy and precision in open court, especially if the questions be of a general tendency, that the law of the land may be certain and known.”
Hy examination on that point, as it has turned out, was not necessary to the determination of the motion before me, but it has enabled me to feel that I am master of every argument and authority bearing on the motion, and to arrive at a very clear conclusion in my own mind, as to what my duty is in deciding it. I have been the more careful to give this subject all the consideration necessary to enable me to determine it accurately, because the position assumed by the very respectable counsel for the defendants struck me so forcibly, oh the argument, and caused the inquiry constantly to occur, whether it was possible, that the law at this day (unless by express enactment of statute) did authorize a party, against whom a solemn decision of this court had been pronounced, at his own volition, and without the intervention of any court or officer of justice, to arrest that judgment and stay its execution? It would cumber my opinion too much to state here the process or the results of an inquiry which has led me so far back into the annals of our jurisprudence, for the first act in relation to wilts of error was passed in the reign of William I., between A. D. 1066 and A. D. 1087. I must content myself with stating the result as it bears on the question before me.
The writ of mandamus has two aspects, one under the statute, and the other at common law. Its power in both cases is alike, but the proceedings in the two eases are different, as is the mode of reviewing and correcting any error which may occur, either in those proceedings or in the final determination.
Under the statute (2 R. S. 586, § 54), the relator, on the coming in of the return to the alternative writ, may plead or demur thereto, whereupon such proceedings may be had as to make up a record of the final judgment. On a judgment thus made up, and flowing from proceedings thus authorized [562]*562by the statute, I entertain no doubt that a writ of error would lie. . .
The mandamus was originally regarded as in the nature of criminal process, and in some of the States it is so yet. (State v. Bruce, Const. R. 165, 174; S. Car.) But in our State it is, doubtless, civil process. The part of our Revised Statutes relating to writs of .mandamus and prohibition is the second title to the ninth chapter of the third part, which part is “An act concerning courts and ministers of justice, and proceedings in civil cases.” The third title of that chapter relates to writs of error, which are given “ upon a final judgment or determination in all civil cases.” (2 R. S. 591.) That, however, is not this case, inasmuch as the statutory proceedings have not been taken here, and consequently .there cannot be any record of final judgment -on which the writ of error could operate. The proceeding has been wholly on the common law side, and the decision has been that of a special motion which cannot be reviewed upon a writ of error. It may be,- as this court intimated in The People v. Commissioners of Highways of Hudson (6 Wend. 559), that permission may be granted to put in a formal demurrer, and so perfect a record of final • judgment, for the purpose of furnishing aliment for a writ of error, but that has not yet been done. A motion for that purpose is now before me" in which I have some doubts, because the remarks in 6 Wend, were obiter, and the propriety of that course has elsewhere been doubted. But whatever may be the conclusion to which I shall arrive in that regard, this case is not yet, and was not when the writ of error was allowed, in that condition, and was not, therefore, one on which the writ of error under the statute could be brought. .
Looking at the proceedings in this case, then, in their true light, as under the common law, it seems to me to be established beyond question that a writ of error will not lie. I do not mean to be understood as claiming that the decision of this court, awarding a peremptory mandamus, is final, and cannot be reviewed. Besides the mode of review indicated in [563]*563the case in 6 Wendell, it may also be obtained by certiorari, and in some instances on special motion, as in the case in 1 Caines’ E. 8. It is enough for the purposes of this motion that the writ of error will not lie; and if it does not lie, it will not, of course, supersede the execution of the peremptory mandamus.
In 2 Saunders’ E. 101, note a, it is said, “ a writ of error would not lie at common law, to review the decisions or judgments of the Court of Queen’s Bench, or courts of the counties palatine, in respect to writs of mandamus, and the proceedings thereon. But this is remedied now by Stat. 6 and 7 Vict. ch. 67; ” and the reason given is, that regularly no writ of error doth lie unless there be a judgment, or an award in the nature of a judgment; for the words of the writ are “si judicium redditum sit” etc. (Co. Litt. 288 b.)
This position seems to be abundantly sustained by authority. In the case of The Dean and Chapter of Trinity Church, in Dublin (8 Mod. 28, 1 Stra. 543), when it was before the King’s Bench, where it had been brought on a writ of error to the King’s Bench in Ireland, the writ of error was quashed, because it would not lie on a mandamus, and one among the reasons assigned was, because “ the right of any person was not determined on a mandamus. It gives a remedy where there is a seeming probability for it, and it settles people in their possessions, so that they may be able to defend their rights, or by virtue thereof, to bring an action for things incident to the possession; and if a writ of error would lie in such a case, it would entangle all the public acts of annual officers in most corporations and parishes.”
That case was taken to the house of lords, and the decision of the King’s Bench there affirmed. (2 Bro. P. Ca. 555.) The same question was again before the house of lords the next year, in Pender v. Herle (3 Bro. P. C. 178) and the same decision was again made. These cases were before our Eevolution, and were therefore, under our Constitution, the law of the land. They are so yet, unless the statute has altered the rule, and I am bound by them as the law of this case, which [564]*564I am not at liberty to disregard. The rule has not, however, gone without its sanction in our own courts. In Yates v. The People (6 J. R. 335), in our Court for the Correction of Errors, these cases were commented on by the Chancellor, Ch. J. Kent, Judges Spencer and Thompson, and by De Witt Clinton, Senator, and by all of them regarded as well settled law. Upon what pretense can I regard it otherwise?
There is, however, another view of this case that ought to be taken.
I have already said that the writ of mandamus is, in our State, a civil process, and that the writ of error, when it goes to it, goes as in a civil case. Now our statute (2 R. S. 597, § 30) expressly enacts that in civil cases no writ of error shall' stay the issue of an execution, or stay proceedings on an execution issued, unless an order to that effect, by the officer allowing the writ, shall have been made and served. No such order has been obtained in this case, nor was there any authority, in the officer allowing the writ, to make any. Our statute has pointed out, with great precision and care, the cases in which a writ of error may operate to stay proceedings. Proceedings on a mandamus do not come within its provisions. So that even if the writ of error did properly lie in this case, it could not, under our statute, stay the proceedings.
While, then, ample provision has been made for reviewing any decision which this court may make in awarding a mandamus, no provision has been made for staying proceedings upon it, pending the review. On the other hand, the statute has declared that when judgment shall be given for the person suing out the writ, “ a peremptory mandamus shall be granted to him without delay.” (2 R. S. 587, § 57.)
This -is by no means an accident in the statute; it is a wise and necessary provision, and is utterly at war with the claim asserted on the part of the defendants on this motion.
- The denial or grant of a mandamus is a mere award of the court, not a strict and formal judgment. (3 Bro. P. C. 178.) it-settles mo right, it merely determines possession. (1 Stra. [565]*565543.) Can it be that the party against whom that determination maybe, has the right at his option, by delay, to defeat it? The writ was devised and extended to prevent disorder from a failure of justice, and defect of police. (3 Burr. 1265.) Hay he, .whose disorder it aims to curb, at his pleasure disarm it of its authority ? Its main purpose is a speedy and summary administration of justice. Hay he, against whom it is launched, say to its speed, “Festina Lente ! ” and convert its summary character into a protracted and tedious litigation 2
I know of no instance where a party, against whom a solemn judgment of a court of competent and general jurisdiction has been pronounced, can, at his own pleasure, without the interposition of any minister of justice, nullify that judgment so far as to arrest its execution. I have taxed my memory in vain for the knowledge of any such case; and the existence of any such right, in any case, would so strike at the very foundation of the administration of justice, and would so render courts a mere mockery, by placing their adjudications at the mercy of those against. whom they may be pronounced, that I cannot persuade myself that my memory is at fault as to the existence of any such case in the present state of the law.
There are, it is true, many cases in which officers of justice, out of court, are authorized, on the application of the defeated party, to arrest'the" execution of a judgment of the court, but that is only when authorized by, and in strict conformity to, the well established practice of the court, or some statutory enactment. If a party wishes merely for time to put in his pleading, or to make out a case to procure a review of his trial, or to move to set aside an execution irregular on its face, he cannot, of his own mere volition, stay any proceedings; he must seek the interposition of some officer of court. Can it be that any greater right exists by suing out a writ of error which issues of right and of course, in a case of a solemn judgment of this court, pronounced in a proceeding, the whole object of which is a summary and speedy award of justice?
There are many instances known to our law, where sum[566]*566mary proceedings are provided for the attainment of speedy justice, where there is no power, not only none in the parties, but none in any court, to stay the proceedings on the final adjudication, such as convictions for vagrancy, proceedings to remove a tenant holding over after his term expires, decisions on the writ of habeas corpus, and the like.
Can it be that a right, denied not only to the parties, but even to the courts, in such cases, is yet possessed by the party in respect to a writ of so high a character, that it can be issued by the Supreme Court alone ? that court whose peculiar business it is to superintend all other inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which they have been invested; and this not only by restraining their excesses, but also by correcting their negligence, and obviating their denial of justice (3 Bl. Com. 110); and which exercises these high functions by means of- a writ which had its origin in Magna Charta (3 Bac. Abr. 528); and which attained some of its most remedial qualities in those times when the bill of rights came into existence; when the liberties of the subject were asserted in more clear and emphatical terms; when the superiority of the law over the king was maintained; and when tender consciences were indulged with every religious liberty consistent-with the safety of the State? (4 Bl. Com. 433.)
I repeat it, I-know of no such principle in the law, nor can I conceive how it can exist ^without depriving courts of their authority, and wresting from the law its supremacy.
I have been thus careful in examining this case thus at large, because I have not been without the hope, that I could succeed in stating the law with sufficient clearness and precision, to bring a knowledge of its requirements home to all the parties to this controversy, and work upon their minds a clear conviction of their duty to obey its behests. I am apprehensive that some passion has been produced among them, but I cannot persuade myself that the defendants have meant to do more than to assert, in a lawful manner, what they were advised were their rights in the matter.
[567]*567I never inflict punishment without pain to myself, but I trust that I shall never be deterred by any such consideration from a full discharge of all my duty. If the defendants shall persist in their disobedience to the writ of mandamus, it will be my duty to inflict such punishment upon them as will not only compel that obedience, but administer to them and to others an admonition to beware how they set the law at defiance.
A full opportunity ought to and shall be afforded to the defendants to review my decisions, and to correct any errors into which I may have fallen, and, in the end, the higher tribunal may award to them restitution of whatever they may have lost through my error. But, in the mean time, the commands of the law must be obeyed by them.
I shall therefore direct, that unless within ten days from this date the peremptory mandamus be obeyed, William Steele, Richard Smith, Potter J. Thomas, Benjamin F. Thomas, and William Barker, the only defendants upon whom the writ was served, and who have neglected or refused to obey it, be attached, for a contempt of court, in disobeying the lawful process thereof, and that they be brought before this court, at its next General Term, to suffer such punishment as the court shall think proper to inflict.
On the 17th of March, Mr. Child and Mr. Whiting presented proofs to the court, of the service of a copy of the order upon the defendants, and that they still continued to disobey said writ of mandamus, and, therefor, moved the court for an immediate attachment, according to the provisions of the statute. An order to that effect was then made, and an attachment issued and placed in the hands of the sheriff of Kings county, commanding him to take the defendants- into custody and bring them before the court, at its General Term, on the first Monday of April, to answer for their contempt, and suffer such punishment as the court should inflict.