The opinion of the court was delivered by SELDEN, J.

The first question to be considered is, whether the writ of prohibition was a proper remedy, assuming that the Court of Oyer and Terminer had no authority to grant a new trial upon the merits after conviction and sentence for the crime of murder.

The office of this writ is, to restrain subordinate courts and inferior judicial tribunals of every kind from exceeding their jurisdiction. It is an ancient and valuable writ, and one the use of which in all proper cases should be upheld and encouraged, as it is important to the due and regular administration of justice that each tribunal should confine itself to the exercise of those powers with which, under the Constitution and laws of the State, it has been intrusted.

But it is said, that when the inferior court or tribunal has jurisdiction of the action, or of the subject matter before it, any error in the exercise of that jurisdiction can neither be corrected nor prevented by a writ of prohibition.

It is true that the most frequent occasions for the use of the writ are where a subordinate tribunal assumes to entertain some cause or proceeding over which it has no control. But the necessity for the writ is the same where, in a matter of which such tribunal has jurisdiction, it goes beyond its legitimate powers; and the authorities show that the writ is equally applicable to such a case. Mr. Jacob, in treating of this writ, after saying that it may issue to inferior courts of every description, whether ecclesiastical, temporal, military or maritime, whenever they attempt to take cognizance of causes over which they have no jurisdiction, adds: "or if, in handling of matters clearly within their cognizance, they transgress the bounds prescribed to them by the laws of England, as where they require two witnesses to prove the payment of a legacy." ( Jac. Law Dic., title Prohibition.)

In the case of Darby v. Cosens (1 Term R., 552), the defendant, who was vicar of the parish of Long Burton, had sued Darby in an Ecclesiastical Court for tithes, that being an action appropriate to the jurisdiction of that court; but the defendant having set up a modus by way of defence, an issue was presented which the Ecclesiastical Court had no authority to try — still, as it assumed to proceed with the case, upon application to the Court of King's Bench a writ of prohibition was issued.

The precise objection made here was taken in the case of Leman v. Goulty (3 Term R., 3), where certain church wardens were cited in the Bishops' Court to exhibit on oath an account of the moneys received and paid by them. Objections being made to one or two items of the account, the Bishop required them to pay a certain amount, and upon their refusing was proceeding still further with the case when a rule was obtained in the Court of King's Bench to show cause why a writ of prohibition should not issue; and the counsel in showing cause insisted that as the Bishops' Court had original jurisdiction of the cause, the error should be corrected upon appeal, and was not a ground for a writ of prohibition; but the court allowed the writ, and Lord KENYON, after admitting that for a mere error in giving a judgment which the court had power to render, the writ would not lie, said: "Now, in this case, with respect to the compelling of a production of the church warden's accounts, the Spiritual Court had exclusive jurisdiction; but there their authority ceases, and everything which they did afterwards was an excess of jurisdiction for which a prohibition ought to be granted."

These cases prove that the writ lies to prevent the exercise of any unauthorized power, in a cause or proceeding of which the subordinate tribunal has jurisdiction, no less than when the entire cause is without its jurisdiction. The broad remedial nature of this writ is shown by the brief statement of a case by Fitzherbert. In stating the various cases in which the writ will lie, he says: "And if a man be sued in the Spiritual Court, and the judges there will not grant unto the defendant the copy of the libel, then he shall have a prohibition, directed unto them for a surcease," c., until they have delivered the copy of the libel, according to the statute made Anno 2 H., 5. ( F.N.B., title Prohibition.)

This shows that the writ was never governed by any narrow technical rules, but was resorted to as a convenient mode of exercising a wholesome control over inferior tribunals. The scope of this remedy ought not, I think, to be abridged, as it is far better to prevent the exercise of an unauthorized power than to be driven to the necessity of correcting the error after it is committed. I have no hesitation, therefore, in holding that this was a proper case for the use of the writ, if the Supreme Court was right in the conclusion to which it arrived at general term.

Had, then, the Court of Oyer and Terminer authority to make the order granting to the defendant, Quimbo Appo, a new trial? One position taken by the counsel for The People upon this question is, that the power, conceding it to exist, before judgment, cannot be exercised after judgment has been pronounced and the prisoner sentenced. I have not, however, been able to discover any solid basis for this distinction. There is no general principle upon which it can rest — nor am I aware of any analogies to support it. If the ends of justice require that this power should be vested in Courts of Oyer and Terminer, that demand is just as imperious where judgment happens to have been pronounced before the grounds for the interposition of the court are made known as in other cases. If the judgment stands in the way, it may be vacated. The court does not become, as claimed by the counsel, functus officio as to the particular case whenever sentence is pronounced. Suppose, for instance, the court through inadvertence should sentence the prisoner without inquiring of him whether he had anything to say why sentence should not be pronounced. If the position is sound, this error, although immediately discovered, could not be corrected by the court which committed it. It would be not only unsupported by authority, but unsafe, I think, to hold, as we must if we sustain the doctrine contended for, that a Court of Oyer and Terminer loses all control over the cases before it as soon as the judgment is recorded.

Another position of the counsel is, that if it be admitted that the court before which the prisoner was tried could grant a new trial, yet another Court of Oyer and Terminer subsequently organized, being a distinct court, had no jurisdiction of the case, and could not exercise that power.

This involves an inquiry into the nature of Courts of Oyer and Terminer in this State, and how far they resemble the English courts of that name. In England, although Courts of Oyer and Terminer are annually held in every county of the kingdom at least once, and in most of the counties twice, yet each court is held by virtue of a special commission, authorizing any two of the persons to whom it is addressed to hold the court. The commission usually embraces two of the judges of the Courts of Westminster, one of whom, or a serjeant at law, when such a one is named in place of a judge, must always be present or the court cannot be held. The operative words of the commission are, "to inquire, hear and determine," and the commissioners have no power except such as is conferred by these words.

Hence, as they must inquire before they can hear and determine, they can try no indictments except such as are found at the same court. This difficulty, however, is overcome by a second commission of Gaol Delivery, as it is called, which authorizes them to deliver the gaol of all prisoners found therein upon their arrival at the place where the court is held, and by virtue of this power they try all indictments, whatever the offence or wherever found.

This commission may be to different persons, but for convenience is usually to the same persons who compose the Court of Oyer and Terminer. Besides these more general commissions, special commissions may be issued by the King at any time to try either specific offences, or the individuals named. Of course, upon the final adjournment of any of these courts in any county its powers are ended. It no longer has any existence so far as that county is concerned, and there is no longer any Court of Oyer and Terminer or of Gaol Delivery, as the case may be, in and for such county, until a new commission issues.

Hence it is plain that no subsequent Court of Oyer and Terminer, as such, could interfere in any way with any case commenced at a previous court, because it must first inquire, then hear and determine. How far its powers as a Court of Gaol Delivery might extend, I am not prepared to say; but no court in England has, I think, ever assumed to take cognizance under this power of a motion for a new trial, even for irregularity, in a case tried at a previous court. It has been held there that the judges of the Courts of Oyer and Terminer and Gaol Delivery may, after the adjournment of the courts, and after their commissions have expired, grant a reprieve in a case of a prisoner previously convicted and sentenced, in order to afford time to apply to the crown for a pardon. But Blackstone says that even this is "rather by common usage than of strict right." (4 Blackstone Com., 394.)

If, therefore, no substantial difference were found to exist between our Courts of Oyer and Terminer and Gaol Delivery and those of England, I should think it a sufficient objection to the order granting a new trial in the present case, that it was not made by the same court in which the case was tried.

But our Courts of Oyer and Terminer, although they have the same name and a similar jurisdiction with those of England, are nevertheless in some respects differently organized. I do not think it necessary to inquire whether the "act to settle Courts of Justice," published in the appendix to volume 2 of the Revised Laws of 1813, and bearing date in 1683, was ever in force in this State or not. It will sufficiently exhibit the present structure of the court to refer to a few of the more modern enactments on the subject.

Section 13 of article 4 of the Constitution of 1821, provides as follows: "The Clerk of the Court of Oyer and Terminer and General Sessions of the Peace, in and for the city and county of New York, shall be appointed by the Court of General Sessions of the Peace in said city, and hold his office during the pleasure of the said court." This language necessarily implies that the Court of Oyer and Terminer was regarded as a permanent and continuing court. Under the English system there was no Court of Oyer and Terminer in existence, except while a particular set of commissioners were in session. There could be no clerk of such a court during the interval between the expiration of one commission and the issuing of another, nor could the definite article the be appropriately used in such a connection as in the clause quoted, except in reference to some particular session of the court.

The phraseology applied to the English court seems to have been continued in this State until after the Constitution of 1821 was adopted. Thus, section 8 of the article concerning Circuit Courts and Courts of Oyer and Terminer, passed in 1813 (1 R.L., 337), uses this language: "A quorum of the commissioners," when speaking of the Court of Oyer and Terminer. I presume, however, that no commission was in fact issued at that day, if ever, in this State, and in the act concerning the Supreme and Circuit Courts and Courts of Oyer and Terminer, passed in 1823 ( Laws 1823, 211, § 9), it was expressly provided that the judges of the County Courts, together with one of the circuit judges or a justice of the Supreme Court, might, "by virtue of their respective offices" and that act, and " without any other commission," hold the Circuit Courts and Courts of Oyer and Terminer, c., of the respective counties. From that time the English system of organizing these courts by special commission was no longer adhered to, either in form or language.

By section 40 of the title of the Revised Statutes concerning Circuit Courts and Courts of Oyer and Terminer (2 R.S., 207), it is declared that the seals previously adopted by the several Courts of Oyer and Terminer and Gaol Delivery "shall continue to be the seals of these courts respectively;" and section 42 of the same act provides that process issued out of a Court of Oyer and Terminer when such court is not in session "may be tested on any day in the last preceding term of the said court." This section treats the court as in existence, although not in session, and as having a succession of terms.

Again, the Code enacts, section 20, that "there must be two terms of the Circuit Court and Court of Oyer and Terminer held annually in each of the counties of this State, and as many more terms thereof, and as many special terms, as the judges of each judicial district shall appoint therein."

These provisions leave no doubt that the English Court of Oyer and Terminer has been so far modified under our judicial system as to become a permanent and continuous court in each of the counties of the State, so that each session of such a court in any county, instead of being a distinct and independent court, the existence of which commences with the first and terminates with the last day of the session, is a mere term of the Court of Oyer and Terminer for that county. Hence the writ of prohibition in this case cannot be sustained upon the ground that the court which has assumed to take cognizance of the motion for a new trial is not the same court in which the prisoner was convicted.

It becomes necessary, therefore, to pass upon the question whether Courts of Oyer and Terminer in this State have authority to grant a new trial upon the merits, after conviction in a capital case. This question has been somewhat agitated in our courts, and there are conflicting decisions upon it, the result of which it will be well in the outset to ascertain; because, however it might have been originally, if the question has been settled by the courts of this State, we should not feel at liberty to disturb it.

In referring to the cases I will begin with the more recent. There are, then, two decisions of our present Supreme Court upon the subject: One made at the general term in the second district in the case of The People v. The Dutchess Oyer and Terminer (2 Barb. S.C.R., 282), the other at the general term in the third district in the case of The People v. Morrison (1 Park. C.R., 625). In the first of these cases the power, after an elaborate examination, was denied; and in the last, after an examination equally elaborate, it was affirmed. As these were coördinate courts of equal jurisdiction and grade, they may properly be considered as balancing each other. I speak of their weight as decisions merely, irrespective of the reasoning in the two cases. The fact that one was a few years later than the other, considering the nature of the question and the position of the courts, does not materially affect their relative force. The question, therefore, may fairly be considered as standing, so far as authority is concerned, substantially where it was left by the previous cases.

We have next two decisions of the former Supreme Court similarly situated: First, that in the case of The People v. Stone (5 Wend., 39), where the power was asserted: and next, that in The People v. Comstock (8 Wend., 549), in which it was denied. It is suggested in The People v. Morrison that the remarks of SUTHERLAND, J., in the last of these cases, were made through mere inadvertence, without reflecting that the same court had, two years before, decided the other way. I find it difficult to adopt this explanation. It supposes that Judge SUTHERLAND and Judge SAVAGE had both entirely forgotten the case of The People v. Stone, and not only so, but that Mr. Wendell also, who had but just reported the former decision, neglected to call the attention of the judges to the obvious discrepancy. The point was one calculated to awaken attention, especially when elaborately discussed, as it was by MARCY, J., in his opinion; and the case of The People v. Comstock could hardly, I think, have found its way into the books if the pointed and emphatic remarks of SUTHERLAND, J., in that case had been inadvertently made. From the tone of those remarks I think it much more likely that the latter justice, although not entirely satisfied with the opinion of MARCY, J., in The People v. Stone, had not chosen to dissent, and that he availed himself of the case of The People v. Comstock — MARCY, J., having in the meantime left the bench and NELSON, J., having taken his place — to express his own views upon the question, the latter justice probably concurring with him.

The case of The People v. Comstock may therefore fairly be considered as a counterpoise to that of The People v. Stone, because, although the precise point was not involved in the last of the two cases, yet what was then said must, I think, have been said upon full consideration of the reasoning in the previous case. Taking the two cases together, therefore, and construing them by such light as we have, they show the opinions of SAVAGE, Ch. J., and MARCY, J., in favor of, and of SUTHERLAND and NELSON, Js., against the power.

Besides the cases already referred to, there are two of an older date to which I will briefly advert. The first is the case of The People v. Townsend (1 John. Ca., 104), where the prisoner having been convicted at the Oyer and Terminer for perjury, the judge before whom he was tried reported to the Supreme Court that the verdict was against evidence, and the latter court directed a new trial. Judge RADCLIFFE, who was on the bench at that time, is reported to have said in the case of Noah (3 City Hall Recorder, 24), that the Supreme Court virtually decided in the case of Townsend that Courts of Oyer and Terminer had power to grant new trials. But if so there was no argument or even counsel in the case, and the whole seems to have been very hastily and informally done. From what appears upon the face of the report, the case cannot be considered as of any considerable weight.

The other case referred to is that of The People v. The Justices of Chenango (1 John. Ca., 179). The Supreme Court in that case denied the right of a Court of General Sessions to grant new trials upon the merits, and issued a mandamus to compel them to proceed to judgment in a case where they had exercised that power, after conviction for a felony. This case has ever been considered as settling the question as to the power of Courts of General Sessions in this State to grant new trials; and much of its reasoning applies as well to Courts of Oyer and Terminer as to Courts of General Sessions, if the former are to be regarded as inferior courts.

The term 'inferior,' as applied to courts, has no very definite meaning. It is used in different senses. In the sense of being courts of very narrow and restricted jurisdiction, Courts of Oyer and Terminer are not inferior; but in the sense of being subordinate to the Supreme Court, and subject in common with all other minor tribunals to its supervisory control, they certainly are. Courts which are subject to be put in motion by mandamus or restrained by prohibition, and to have their causes taken away before judgment by certiorari, are subordinate courts; and this is all that is necessary to give to the reasoning of the court in the case of The People v. The Justices of Chenango, its full force when applied to Courts of Oyer and Terminer. The court in that case, speaking of the Courts of General Sessions, say: "Writs of error, certiorari, mandamus, and attachment issue to it from this court. Those writs conclusively show it to be subordinate, and prove the authority which has always been exercised over it. * * * * These courts are wholly independent of each other, and if their proceedings were not subject to be here reviewed, we might find different rules of law and of justice in almost every county. This would introduce disorder and confusion, and be inconsistent with a regular and uniform administration of justice. The power of granting new trials can only be applied in a manner which precludes the possibility of its exercise being reviewed in this or any other court. * * * * If this power did exist, therefore, in an inferior court, it would exist without regulation or control." Substitute the word subordinate for that of "inferior," in the last sentence, and every idea contained in this extract applies with the same force to Courts of Oyer and Terminer as to Courts of General Sessions. The courts of the several counties have the same independence of each other; their proceedings in granting new trials would not be subject to review, and would be wholly without regulation or control. This case, therefore, cannot but be considered as greatly preponderating over any weight which can by possibility be given to the case of The People v. Townsend.

From this brief review of the cases in this State, it is difficult to say in what direction, when the authorities are fairly weighed, the scales would incline. I assume that they are evenly balanced; but whether this assumption is just, or whether the preponderance should be considered as in favor of the power, does not in the least affect my view of the present case; for it cannot be contended that there exists that clear and settled course of decision which should preclude any further examination of the subject.

It is to be looked at, then, substantially as an original question, and as if it had now arisen for the first time. It is not controlled by any statute, and hence what we are called upon to decide is whether, by the common law, Courts of Oyer and Terminer have the power to grant new trials upon the merits, after conviction in a capital case.

It is settled beyond dispute, in England, that no new trial can be granted upon the merits in such a case, even by the highest courts. This is conceded in The People v. Stone and The People v. Morrison. The authorities on the subject are referred to in the cases of The People v. Comstock and The People v. The Dutchess Oyer and Terminer ( supra,) and it is unnecessary to repeat them here. If, then, new trials are to be granted in such cases by our courts, a new rule must be introduced, and the question is upon what ground of principle this can be done. New rules may be adopted when new cases arise. It is considered one of the chief merits of the common law, that it is plastic and flexible, and accommodates itself readily to the new phases which the affairs of the world are constantly assuming. But in the case under consideration there is nothing new, and the courts are asked not simply to apply a rule which, although in harmony with the general and fundamental principles of the common law, has never been before adopted, but to go in direct opposition to what is acknowledged to have been the settled rule of the common law for centuries.

This court and the Supreme Court have the power, if not the right, to legislate and to amend the common law, and no doubt their legislation would be as wise as much that proceeds from more legitimate sources; but the better opinion I think is, that each department of the government should confine itself to the exercise of its appropriate functions, and not encroach upon those of any other. It is shown in the case of The People v. Morrison that in most of the States of the Union the courts have assumed the powers contended for here, and this is urged as authority by which our courts should be governed. But it is the common law of England, and not that of Pennsylvania or Alabama, which we have adopted. Upon all questions upon which there is any doubt, we pay high respect to the decisions of the courts of other States, but when the law is known and conceded, the fact that other States have confessedly disregarded and departed from it, is entitled to very little weight.

Judge MARCY, in The People v. Stone, devotes most of his argument to proving that Courts of Oyer and Terminer in this State are not inferior courts. But this, if established, is in no manner decisive of the question, as by the common law no court, high or low, could grant new trials upon the merits, after conviction in a criminal court in cases of felony. The principal reason he gives for departing from what he admits to be the settled rule of the English common law is, that notwithstanding the pardon of a criminal who has once been convicted, "the foul blot remains upon his reputation." It may, I think, be safely assumed that in most cases the criminal so situated, if allowed to choose, would prefer to take the pardon rather than to avail himself of the privilege of a second trial.

But it matters not, in my view, how strong may be the reasons given in the cases of The People v. Stone and The People v. Morrison for a change in the law. The question we are called upon to consider is not whether the admitted rule of the common law was, or is, wrong, and ought to be changed, but whether that change should be wrought by the courts or left to the action of the Legislature.

The whole course of judicial as well as legislative action in this State, until the decision in The People v. Stone, indicates very clearly, I think, a general understanding that Courts of Oyer and Terminer could not grant new trials in such cases. In the case of The People v. McKay (18 John., 212), where it became necessary to move in arrest of judgment, on the ground that no venire had been issued, the cause was removed into the Supreme Court by certiorari, and the prisoner brought up by habeas corpus in order that the motion might be made there. In the case of Douglass (4 Cow., 26), convicted of murder in the county of Steuben, where a motion was made to set aside the verdict for certain irregularities on the part of the jury, the same course was taken; and in the case of The People v. Ransom (7 Wend., 417), who was found guilty of murder in the city of New York, judgment was suspended in order that the question of regularity might be presented to the Supreme Court.

The bearing of the proceedings in these cases will be seen, when it is considered that even the subordinate and interior common law courts in England have power to set aside verdicts in cases tried before them for irregularity. Our Courts of Oyer and Terminer, it seems, have always hesitated to exercise even this minor power.

The Legislature also, in providing for the correction of errors in law by means of bills of exception, and making no provision as to new trials for mistakes in regard to matters of fact, has, I think, indicated its opinion not only that new trials could not be granted in cases of that kind, but that they had better be left, as by the common law they are left, to the action of the pardoning power.

It is by no means certain that such would not be the better course, even if we had power to determine the question upon grounds of expediency alone. Certainly it would, I think, unless at the same time some rules could be adopted by which the exercise of the power should be in some degree regulated.

The Legislature, in permitting motions for new trials to be made upon the minutes of the judge in civil cases, has imperatively required that they should be made at the same term at which the cause is tried. ( Code, § 264.) There is every reason why this rule should be applied to motions for a new trial upon the facts in cases of felony, if such motions are to be permitted, unless some provision is made for embodying the facts in an authenticated form.

The suffering of such motions to be made before another judge at a subsequent term, without any provision as to the manner in which he should become possessed of the facts of the case, would, I apprehend, be attended with very serious inconvenience. There is great danger, too, that the privilege, if allowed without being subjected to some precautionary restrictions, will be used to delay and embarrass the administration of criminal justice, already sufficiently difficult.

The subject, taken as a whole, can only be adequately dealt with by the Legislature, to which it appropriately belongs, and I am entirely opposed to so obvious a stretch of judicial power as would be involved in holding that our Courts of Oyer and Terminer, without the aid of any statute, possess a control over convictions for crime, which it is conceded was never possessed by the highest common law courts in England.

The judgment should, I think, be affirmed.