Ex parte Fitzgerald

I do not intend to express any opinion at this time upon the question whether a mandamus will lie to compel the judges of an inferior court to give a better judgment upon a matter which was within their jurisdiction, and which it was their duty to decide according to their own judgments, upon their oaths of office, as that is a question upon the merits of the case which. I think cannot be decided on this writ of error. I must, however, be per mitted to say, as I have before had occasion to remark, that a proceeding by mandamus, which must be against the court or body to whom the alternative mandamus is directed, and upon which proceeding a court may be mulcted in damages and costs, and harassed with writs of error, &c. for erroneous decisions which they may have made in perfect good faith, appears to be a ve 651 ry inappropriate, remedy to correct an erroneous judgment. It is the same in character, though I will not say it is quite as bad as that which was applied in such cases by the good king Arthur, who, as we learn from an ancient legal work entitled The Mirrour of Justice, (Horne’s Transl. p. 239,) hanged no less than forty-four judges in one year, because either he or those whom he appointed to review their ‘judgments, thought [ *652 ] their respective decisions had been erroneous. And the author of that work, in his very commendable zeal for an administration of justice in which no public wrong can exist without an appropriate remedy, sets it down as an abuse of the common law of England, that this precedent of King Arthur was not followed at the time when that work was written. Although this court has in one or two instances, under very peculiar circumstances, entertained a writ of error to reverse a final decision of the supreme court, which was no,t a judgment in the common law sense of the term, I must again be permitted to enter my protest against all attempts to force upon this court a jurisdiction upon writs of error to review all the various decisions which may be made upon summary applications by special motion to the supreme court. A decision of that court refusing to grant a new trial, where the party making the application supposes the verdict was against the weight of evidence, or refusing to open a judgment by default for a supposed irregularity, or upon an affidavit of merits, is a determination of that court which is as final in its nature as a refusal of an alternative or a peremptory mandamus to 'an inferior court, upon a summary application. Certain dis. cretionary powers must of necessity be vested in some judicial tribunals ; and occasional errors in judgment are inseparable from human nature. And in questions depending on the exercise of a sound judicial discretion, with a full view of the bearing and effect which the decision may have upon the rights of other parties in analogous cases, the decision of the supreme court will be more likely to be correct, than the decision which we might make, if we attempted to correct it upon a writ of error, considering the manner in which this court is constituted, and the little opportunity we have to make ourselves acquainted with mere questions of practice. The members of this court will also perceive, that if we entertain writs of error of this description, it will be utterly impossible for us to dispose of the business which comes legitimately before us. Having arrived at the conclusion that we have no ‘jurisdiction [ *653 ] either to affirm or reverse this decision of the supreme court upon a special motion, and that the whole proceeding in this court is erroneous in substance as well as in form, and for want of the proper and necessary parties to enable us. to reverse the decision of the court below upon the special motion, and award a mandamus against the justices of the superior court, I think this writ of error should be dismissed. Writ of error dismissed.