¶1declared his concurrence in the opinion delivered by his honour, The Chancellor ; and that on the merits, if it wei-e proper to consider them, lie Was of opinion that "the judgrttertt of .the supreme cdurt ought to be affirmed. •
¶2Yates, Senator, concurred in the.opinion of Lewis, Senator,.
¶3Our first duty Will be to inquire and determine whether'this court has jurisdiction in this, case. , If w'e have no jurisdiction, we cannot proceed to examine the merits óf .the causé, but must. simply dismiss- the writ of error, for want of jurisdiction. ' , , ' ,
¶4It is said that the decision of the supreme court was not a judgment. - . . ' :
¶5. In the books and language Of the common law, the term judgment is applied in a, limited, technical sensed to certain de*61terminations of the courts, which are enrolled in certain estaWished forms and phrases. No other decision or sentence, however important or final it may be, is denominated a judgment. It is equally true, that in pure English, and in the ordinary sense of the term, it is applied to any determination of a 'cause by a court of justice. The judgment of the court is the-, final sentence or decree of the court. The expressions, “ errors, correction of errors, judgments in the supreme court, and questions of law,” which occur in the constitution, are not there Used as terms of art. They are used in the ordinary and general sense of those expressions. The constitution ought not to be construed in this or any other part, with technical strictness and severity. It is not the act of a bench of judges, or a bar of lawyers. It is the public act of a numerous body, in which the representatives of the people speak in the language of the people, and address themselves to all mankind. Their language should, therefore, be understood according to the ordinary and usual sense of the terms which they employ.
¶6The jurisdiction of this court is derived from the constitution, and the right of appealing to it is given by the constitution. - The court and its jurisdiction, and the right of appealing to it, are unknown to the common law. They owe their origin and existence to the constitution; and the constitution is entirely an innovation upon the .common law. Hence, the jurisdiction of this court is to be determined by the constitution itself, and not by expositions or definitions derived from the common law.
¶7I also reject from this, view.of the question, the statute con* cerning this court. The statute organizes the court, according to the" constitution, with such jurisdiction as the constitution had prescribed. The nature and extent of its jurisdiction are to be sought and found in the constitution itself. The powers of this court are as much to be found in the constitution, as the powers of the governor, the council of revision, or any authority created by the constitution.
¶8The constitution appears to me to provide, that the supreme judicial power of the state shall be vested in this'court; that it shall have appellate jurisdiction onlyand that it shall hear and finally determine all causes which havé been/Ietermined in the other, courts, and may be removed to this court for revision. These are not, indeed, the expressions of the constitution, but *62i ugfi them as perféetly equivalent in. sense and meaning to th<W used, in the constitution. The authors of the constitution obviously-meant, that one supreme tribunal should % erected,, ta which all courts then, existing, or which might afterwards be created, should be subordinate; and that the administration of justice in those courts should not be final, but, should be subject to the revision of this: supreme tribunal. The supreme cburfe and the court of chancery existed beforeand all their declsions, of every kind and name, were final. The object of those who formed the'constitution evidently, was* that those courts should no longer possess that final jurisdiction. They, therefore, erected this court with an appellate jurisdiction, as broad and ample as the jurisdiction of all other courts. They left the supreme court its name, but they deprived it of that supremacy from which its name was originally derived.
¶9■ The constitution, indeed, does , not , alter the forms of proceeding, or the modes of administering justice, which were before in' use. But if any form of proceeding, or mode of administering justice, would . have before éxeluded the right of appeal,.then that form of mode is now so far altered by the constitution, that an appeal must be allowed. The right of appeal, given by the constitution, cannot be abridged by the common ia w> for so much Of that law as interferes with the right of op-4 peal, is abrogated by the constitution itself. -
¶10•All judgments of - the supreme court, by which I mean in the sense of the constitution, all final determinations of causes in that court,, are,- then, subject to an appeal and revision in this court, V -1
¶11But it is said, that if we depart/froin the technical definition of a judgment by the common, law, every decision or order of the supreme court will be subject to appeal. . This will not be the consequence.. Orders merely' interlocutory or auxiliary to the prosecution of a suit, are not determinations of a cause.. No appeal can take place until the cause has terminated in the supreme court. This was the" common law respecting writs- of error. A writ of error did not remove the cause until final judgment had been rendered. " This was not: altered by the conytitution, because it was not necessary to the right of appeal that it shoulé be altered, ' The. party .against- Whom the -supreme court may> decide has the benefit of the constitutional provision, if he .is allowed to remove jthe -cause after the. determination- of *63that court.. The rule of the common law, that a cause cannot be remoued by writ of error, úntil after it has been determined in ,the inferior court, therefore remains unaltered. This is an answer to all that has been said concerning orders in the progress of a cause, rules upon parties and officers, and orders incidental to the main purpose of an action.
¶12The proceedings of the supreme court, in this cause, were judicial proceedings, commenced, conducted, and terminated before them. One of the parties was called into court to answer the complaint of the other, and the court, having heard them both, decreed that the party who was in possession should be put out, and that the other should be put in. What may be the technical or most proper name for such proceedings, it is not here necessary to inquire or determine. It is enough that these proceedings have all the essential characteristics of a suit or action, and that the court have closed the litigation by a definitive decision between the parties. Whether the decision is denominated a judgment, an order, an award, a decree, or a sentence, is very immaterial. They would all be but different names for the same thing, and, perhaps, any of them may be applied to this decision without violence. By whatever terms these proceedings may be described, they were, in substance and essence a suit by one party to recover the possession of lands from another. By whatever name the decision may .be called, it is, in effect, a final judgment by which the suit is terminated, and the subject in controversy is awarded to one party against the other. The party who has been adjudged to lose his possession, may be aggrieved by this determination, and as' it is the final determination of a cause in the supreme court, he has a constitutional right.to bring the cause to this court for a final decision.
¶13It is said that this is not a record. I believe it to be true that no record like this can be found in the books of the common law. " But if a record be a history of the proceedings in a cause, then this is a record. It is the only record that can be made where proceedings like these take place. The constitutional right of the party to his appeal does not depend upon any English definition of a record. It depends upon the fact that his cause has been determined against him.
¶14This question is, therefore, not to be determined by technical definitions and verbal criticism, or by the terms and phrases in *64which judgments have been, or may be, expressed, The true inquiry, is, whether the judicial proceeding .constitutes a cause -by itself, and has received its final decision in the supreme court. If soj the case contemplated by the constitution exists, -and1 the cause may be brought to this court for revision.
¶15It is truly said-, that the. proceedings of the supreme court in this, case were summary. This cannot affect the fight of appeal. . Whether the. proceedings were summary or plenary, that right-equally- exists. If the proceedings" be an action, or have the effect of an action, ,the appeal must be allowed. Whatever may be the mode of proceeding adopted by the supreme court,. -whether formal and Usual, or extraordinary and summary, it can make no determination of the caíise which will not be subject. to the constitutional revision of. this court. Whether the mode of, proceeding has the sanction of antiquity, or is altogether new, the right of appeal exists in the party, and the appellate jurisdiction exists. in this 'court. If the mode of proceeding, adopted by the supreme court, be summary, or illegal, that mode of proceeding may be the very grievance of which. the party condemned has to complain.. All causes determined in the supreme .court, whatever may be the course-or mode, of proceeding, by which ■ they may. be conducted or determined, are subject to the appellate jurisdiction of this court.
¶16It is also said, that if this, appeal be allowed, this court may be drawn into the trial of facts.' - The answer to'this, objection will be' found in the principles already stated, , If the supreme court entertain a cause in which they try and determine facts, it ¡does not follow that their -decision is final, The right of appeal still exists, and it. is made the duty of this court to hear and decide the cause upon an appeal. If the supreme court should try an issue of fact, without a jury, in an action of trespass or debt, it i would,be -the duty of this court, to entertain the cause Upon an appeal,, and either to decide that such a mode of trying the fact is illegal, or if. it tie-legal, then to try the fact upon the same evidence on which the supreme court judged and decided,
¶17. Jt .is said, that the supreme court has a superintending au~ tliority, over all the courts of law. inferior to itself. This is true,, and it ought to .tie so, • The superintending authority, as it is called, is, in other words, an appellate jurisdiction, over off inferior' jurisdictions.#. It is. exerted when a party, aggrieved *65by a determination, or some proceeding of the inferior court, complains to the supreme court, and brings the cause before them for their decision. By whatever form or mode of proceeding this is done, it is, in substance, and effect, an appeal from one court to the other. The supreme court has no original jurisdiction in cases of forcible entries or detainers. The original jurisdiction in those cases is vested in the justices of the peace; but their proceedings may be removed to the supreme court. In this case the supreme court held, that no accident could deprive them of -their superintending authority, or appellate jurisdiction. An accident, like the death of th.e justice, might defeat the ordinary modes of proceeding, or render them ineffectual; but the party aggrieved was not, for that reason, to lose the redress which the supreme court might give him, upon an appeal to them. Their appellate jurisdiction must be exercised, because the exercise of It was required from them by the party. They therefore held, that if the writ of certiorari would not bring the cause to them, the cause must come in some other way. I do not now inquire whether they adopted a legal or proper mode of proceeding. They also held, that whether the judicial proceedings of the justice were recorded or not, they must still exert their superintending or appellate authority. Whether there was a technical record, or a technical judgment, before the justice, or not, were questions which the supreme court thought had no concern with the right of the party to his appeal, or their right to entertain the appeal, and revise the cause. When they speak of their own interference upon affidavits, they gay it is a matter of necessity. If it was a matter of necessity, it was so because the right of appeal from the justice to the supreme court could not be frustrated by any cause whatever. The supreme court, indeed, appear to have held, that nothing whatever could prevent the right of appeal, or the exercise of their own appellate authority. In all this, the supreme court took a just view of the nature of appellate jurisdiction; and they rightly concluded, that any particular or extraordinary mode of proceeding in the inferior court, could not deprive the superior court of its appellate jurisdiction.
¶18*66if these views of the question- between the justice’s court and supreme court were • correct, they are fully applicable to the question between the supreme court and this court.The appellate jurisdiction of this court is as ample as the appellate jurisdiction, or superintending authority of the supreme court over the inferior courts. If necessity will authorize, a sum», toáry. mode of proceeding, in the supreme court, to enable them to exercise their jurisdiction, it must be a strange necessity, if it should, at the same time, make that jurisdiction inai. It would be a necessity that there should be one appeal, and no more than ;one. It. would be, at otice, a necessity to give jurisdiction to the supreme court, and a..necessity to- take away jurisdiction from this court. The constitution ordains; that there shall be no such necessity in this state. If it be necessary that the supreme court should exercise its jurisdiction over such . proceedings, and in this manner, the necessary consequence is, that this court must exercise-its jurisdiction in the same case. I say the necessary consequence, because the necessity or obligation to entertain the cause in this- court is of the highest kind; since it is derived from the supreme law, the constitution itself.
¶19It will be understood that I have, throughout, used the word appeal, in the-general sense of the term. The. technical distinctions between- the different modes, of appeal, whether by writ of . error, writ of certiorari, 1 or otherwise, are foreign to the purpose of the present inquiry.
¶20I am clearly of opinion, that this court has jurisdiction in this case, and that the cause is now properly before this court for its determination. ,
¶21The judgment of the justice seems to have been a conviction of Briggs, and nothing more. The strict duty of the supreme, court Was to reverse or affirm the judgment of the justice. If they reversed or. quashetjl the judgment or conviction of the justice, it was not a necessary consequence that the possession should be restored. The party prosecuting before the supreme court'could not demand restitution as his-right. The court might grant it-or not, as a matter of discretion.- The title is not here in question. The object-of the law, in such cases, is to protect persons who are in quiet possession, from violence. It appears that there had been, game struggle between these. parties, in which they wrested, or attempted to yfrest, fhe pos*67Session from each other, at different times. In deciding Which of them shall have the possession, it seems proper, in such circumstances, to look back to the commencement of the contest, and to give preference to the party who had the first peaceable possession. The first quiet possession was in Clason, and his tenants; and it appears that Shotmell's possession was gained surreptitiously.
¶22As it does not appear that the possession was changed by any judicial proceeding of the justice ; as the first peaceable possession was in Clason ; and as the case is, in many respects# involved in obscurity and contradiction, I am of opinion that the possession should not have been adjudged to Shotwell. To award the possession of land from one party to another, is a sentence highly important to both. The advantage of possession to either party may be great. • It is redress which, I think, ought not to have been given to Shotmell, as an act of discretion.
¶23Entertaining this opinion upon the merits of the case, I do not find it necessary to consider or express an opinion whether the mode adopted by the supreme court, in hearing and deciding the cause, upon the affidavits of the parties and their witnesses, was proper or not.
¶24My voice will accordingly be, that the judgment of the supreme court, awarding the possession to Shotmell, ought to be reversed.
¶25Elmendorf, Bxoodgoqd, and Van Burén, concurred with Lewis and Sanford, Senators, that a writ of error lies in this case, and that the judgment of the supreme court ought to be reversed.
¶26Cochran, Wendexl, and Stewart, Senators, were of opinion that the writ of error ought to be' quashed; and that, if it would lie, they were of opinion that the judgment of the supreme court ought to be affirmed.
¶27Bishop, Bxoom, Cxarke, Dayton, Rouse, Smith, Str'a-Nahan, Swift, Tabor, and Van Bryck, Senators,
¶28*68It was thereupon ordered and adjudged,
¶29judgment of reversal
¶30 For reversing, 17. For affirming, 5.
¶31April 7, 1814.