The Supreme Court has power to issue a mandamus directed to a
circuit court of the United States commanding the court to sign a
bill of exceptions in a case tried before such court.
In England the writ of mandamus is defined to be a command
issuing in the King's name from the Court of King's Bench and
directed to any person, corporation, or inferior court of
judicature within the King's dominions requiring them to do some
particular thing therein specified which appertains to their office
and duty and which the Court of King's Bench has previously
determined or at least supposes to be consonant to right and
justice. It issues to the judges of any inferior court, commanding
them to do justice according to the powers of their office wherever
the same is delayed. It is apparent that this definition and this
description of the purposes to which it is applicable by the Court
of King's Bench, as supervising the conduct of inferior tribunals,
extends to the case of a refusal by an inferior court to sign a
bill of exceptions where it is an act which appertains to their
office and duty, and which the Court of King's Bench supposes "to
be consonant, to right and justice."
The Judicial Act, section 3, enacts that the Supreme Court shall
have power to issue writs of prohibition to the district courts
when proceeding as courts of admiralty and maritime jurisdiction,
and writs of mandamus in cases warranted by the principles and
usages of law, to any courts appointed or persons holding offices
under the authority of the United States. A mandamus to an officer
is said to be the exercise of original jurisdiction, but a mandamus
to an inferior court of the United States is in the nature of
appellate jurisdiction. A bill of exceptions is a mode of placing
the law of the case on a record, which is to be brought before this
Court by a writ of error.
That a mandamus to sign a bill of exceptions is "warranted by
the principles and usages of law" is, we think, satisfactorily
proved by the fact that it is given in England by statute, for the
writ given by the Statute of Westminster the Second is so in fact,
and is so termed in the books. The Judicial Act speaks of usages of
law generally, not of common law. In England, it is awarded by the
Chancellor, but in the United States it is conferred expressly on
this Court, which exercises both common law and chancery powers, is
invested with appellate power, and exercises extensive control over
all the courts of the United States. We cannot perceive a reason
why the single case of the refusal of an inferior court to sign a
bill of exceptions, and thus to place the law of the case on the
record, should be withdrawn from that general power to issue writs
of mandamus to inferior courts which is conferred by statute.
The Judicial Act confers expressly the power of general
superintendence of inferior courts on this Court. No other tribunal
exists, by which it can be exercised.
Exceptions taken on the trial of a cause before a jury for the
purpose of submitting to the revision of this Court questions of
law decided by the circuit court
Page 30 U. S. 191
during the trial cannot be taken in such a form as to bring the
whole charge of the judge before this Court, a charge in which he
not only states the results of the law from the facts, but sums up
all the evidence.
The decision of this Court in the case of
Carver v.
Jackson ex dem. of Astor, 4 Pet. 80, reexamined and
confirmed.
Mr. Hoffman moved the Court for a writ of mandamus to be
directed to the Circuit Court of the United States for the Southern
District of New York in the Second Circuit commanding that court to
review its settlement of certain bills of exceptions which were
tendered on the part of the defendants on the trials of those cases
in the circuit court, and to correct, settle, and allow and insert
in the said bills the charges to the jury in each case or the
substance thereof, and also for such other and further order and
relief in the premises as the court shall deem just and proper.
This motion was made after notice to the plaintiffs in the
ejectments, and was founded on an affidavit made by Green C.
Bronson, Esq., the Attorney General of New York, who was of counsel
for the defendants in the circuit court, a copy of which affidavit
had been served upon the counsel for the plaintiffs in the
suits.
The facts set forth in the affidavit and the papers referred to
are fully stated in the opinion of the Court.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
These suits were decided in the Court of the United States for
the Second Circuit and Southern District of New York in May term,
1830. At the trial, the court gave opinions on several points of
law which were noted at the time and a right to except to them
reserved. According to the practice in New York, bills of
exceptions were prepared by counsel in vacation and tendered to the
circuit judge for his signature. The bills comprehend not only the
points of law made at the trial, but the entire charge to the jury.
The judge corrected the bills by striking out his charge to the
jury. This motion is
Page 30 U. S. 192
made for a writ of mandamus
"to be directed to the Circuit Court of the United States for
the Southern District of New York in the Second Circuit commanding
the said circuit court to review its settlement of the proposed
bills of exceptions, . . . and to correct, settle, allow, and
insert in the said bills the charge delivered to the said jury in
each case, or the substance thereof."
A doubt has been suggested respecting the power of the Court to
issue this writ. The question was not discussed at the bar, but has
been considered by the judges. It is proper that it should be
settled and the opinion of the Court announced. We have determined
that the power exists. Without going extensively into this subject,
we think it proper to state briefly the foundation of our
opinion.
In England, the writ of mandamus is defined to be a command
issuing in the King's name from the Court of King's Bench and
directed to any person, corporation, or inferior court of
judicature within the King's dominions requiring them to do some
particular thing therein specified which appertains to their office
and duty and which the Court of King's Bench has previously
determined, or at least supposes to be consonant to right and
justice. Blackstone adds
"That it issues to the judges of any inferior court, commanding
them to do justice according to the powers of their office whenever
the same is delayed. For it is the peculiar business of the Court
of King's Bench to superintend all other inferior tribunals, and
therein to enforce the due exercise of those judicial or
ministerial powers with which the Crown or legislature have
invested them, and this not only by restraining their excesses, but
also by quickening their negligence, and obviating their denial of
justice."
3 Bl.Com.
It is, we think, apparent that this definition, and this
description of the purposes to which it is applicable by the Court
of King's Bench as supervising the conduct of all inferior
tribunals, extends to the case of a refusal by an inferior court to
sign a bill of exceptions when it is an act which "appertains to
their office and duty" and which the Court of King's Bench supposes
"to be consonant to right and justice." Yet we do not find a case
in which the writ has issued from that
Page 30 U. S. 193
court. It has rarely issued from any court, but there are
instances of its being sued out of the Court of Chancery, and its
form is given in the register. It is a mandatory writ commanding
the judge to seal it, if the fact alleged be truly stated:
"si
ita est."
There is some difficulty in accounting for the fact that no
mandamus has ever issued from the Court of King's Bench directing
the justice of an inferior court to sign a bill of exceptions. As
the Court of Chancery was the great
officina brevium of
the Kingdom, and the language of the statute of Westminster the
Second was understood as requiring the King's writ to the justice,
the application to that court for the writ might be supposed
proper. In 1 Sch. & Lef. 75, the chancellor superseded a writ
which had been issued by the cursitor on application, declaring
that it could be granted only by order of the court. He appears,
however, to have entertained no doubt of his power to award the
writ on motion. Although the course seems to have been to apply to
the chancellor, it has never been determined that a mandamus to
sign a bill of exceptions may not be granted by the Court of King's
Bench.
It is said by counsel in argument in
Bridgman v. Holt,
Show. P.C. 122, that by the statute of Westminster the second, ch.
31, in case the judge refuses, then a writ to command him, which is
to issue out of chancery,
quod apponat sigillum suum. The
party grieved by denial may have a writ upon the statute commanding
the same to be done, &c.
"That the law is thus seems plain, though no precedent can be
shown for such a writ, it is only for this reason, because no judge
did ever refuse to seal a bill of exceptions, and none was ever
refused, because none was ever tendered like this, so artificial
and groundless."
The Judicial Act, sec. 13, enacts that the Supreme Court shall
have power to issue writs of prohibition to the district courts
when proceeding as courts of admiralty and maritime jurisdiction,
and writs of mandamus in cases warranted by the principles and
usages of law to any courts appointed or persons holding offices
under the authority of the United States. A mandamus to an officer
is held to be the exercise of original jurisdiction, but a mandamus
to an inferior court of the United States is in the nature of
appellate jurisdiction.
Page 30 U. S. 194
A bill of exceptions is a mode of placing the law of the case on
a record, which is to be brought before this Court by a writ of
error.
That a mandamus to sign a bill of exceptions is "warranted by
the principles and usages of law" is, we think, satisfactorily
proved by the fact that it is given in England by statute, for the
writ given by the statute of Westminster the Second is so in fact,
and is so termed in the books. The Judicial Act speaks of usages of
law generally, not merely of common law. In England it is awarded
by the chancellor, but in the United States it is conferred
expressly on this Court, which exercises both common law and
chancery powers, is invested with appellate power, and exercises
extensive control over all the courts of the United States. We
cannot perceive a reason why the single case of a refusal by an
inferior court to sign a bill of exceptions, and thus to place the
law of the case on the record, should be withdrawn from that
general power to issue writs of mandamus to inferior courts, which
is conferred by statute.
In New York, where a statute exists similar to that of
Westminster the second, an application was made to the supreme
court for a mandamus to an inferior court to amend a bill of
exceptions according to the truth of the case. The court treated
the special writ given by the statute as a mandamus, and declared
that it was so considered in England, and added that
"though no instance appears of such a writ issuing out of the
King's Bench where an inferior court refused to seal a bill of
exceptions, there is no case denying to that court the power to
award the writ. . . . It ought to be used where the law has
established no specific remedy and where in justice and good
government there ought to be one. . . . There is no reason why the
awarding of this particular writ does not fall within the
jurisdiction of this Court or why it should be exclusively confined
to the Court of Chancery."
In the opinion, then, of the very respectable court which
decided the motion made for a mandamus in
Sikes v. Ransom,
6 Johns. 279, the supreme court of New York possesses the power to
issue this writ in virtue of its general superintendence of
inferior tribunals. The Judicial Act confers the power expressly on
this Court. No other tribunal exists by which it can be
exercised.
Page 30 U. S. 195
We proceed to the inquiry whether a proper case has been made
out on which the writ ought to be issued.
The affidavit of Mr. Bronson, the attorney for the defendants in
the circuit court, is the evidence on which the motion is to be
sustained. He says
"that the suits were tried on a full understanding that each
party was to be considered as excepting to any decision or opinion
of the said court which he might desire to review on a writ of
error whether such exception was formally announced at the trial or
not, and it was also fully understood, in the event of verdicts for
the plaintiff, that the deponent would, after the trials, prepare
bills of exception and carry the cases by writs of error to the
Supreme Court of the United States."
The charge of the judge was formally excepted to in one of the
cases before the jury left the bar.
In the case of Nathaniel Crane, the counsel for each party
submitted certain written points or questions of law for the
decision of the court, which were decided, after which the
presiding judge delivered a charge to the jury in which he went at
large into the law and facts of the case.
In the case of Samuel Kelly, the counsel for the defendant
submitted certain legal questions growing out of the facts of the
case, and requested the court to decide them before the cause
should be argued to the jury, to the end that he might know what
questions would be left to the jury. This was not done, and the
cause was argued, after which the court delivered its opinion on
the said questions of law, and then the presiding judge delivered a
charge on the law and facts of the case. That in each case the
decision of the proposed points of law consisted, as to most of the
questions, in giving an affirmative or negative answer to the
propositions, but in the charge subsequently delivered in each
case, the judge went at large into the law of the cases and
commented upon it to an extent and in a manner much more likely to
impress the minds of the jury than in the brief answers previously
given. That in the judgment of the deponent, the remarks of the
judge in his charge did in effect present the law of the case to
the jury differently from what it had been given to them in answer
to some of the points submitted, and in such a manner that a full
and fair review of the judgments of the circuit court cannot be had
without putting the charge in each case upon the
Page 30 U. S. 196
record. He therefore, in each case, inserted the substance of
the charge in the bill of exceptions. That in the charge, the
remarks of the judge upon the law and facts of each case were so
blended that the deponent did not, and does not believe it
practicable to separate the remarks upon the law from those upon
the facts of the case in such a manner as to give the defendants a
full and fair opportunity to review the judgments of the circuit
court.
The bills of exceptions, which had been offered in December to
the presiding judge for his signature were returned, the whole of
the charge in each case being stricken out.
The subject was again brought before the judge, who returned the
following answer to the application.
"Dear Sir: I have read the letter you put into my hands this
morning, which you had received from Mr. Bronson, in relation to
the bills of exceptions in the Astor causes. The charge, as
contained in the bills of exceptions, was stricken out in
conformity to what I understand to be the rule laid down in the
Supreme Court in the case of
Carver. It purports to set
out at length the whole charge (how far this is correctly done I do
not stop to inquire), which I understand the Supreme Court to say
is a practice it decidedly disapproves. There can be no doubt that
a party is entitled to his exception, if he sees fit to take one,
upon every question of law stated to the jury. I have not the bill
of exceptions now before me. I am not aware of any question of law
arising upon the charge which is not embraced within some one of
the points specifically submitted to the court and upon which the
court gave an opinion, all which are contained in the bill of
exceptions. If this is not the case, and it is pointed out it ought
to be added to the bill of exceptions, and I will again look at it.
But the exception must be confined to some matter of law."
The counsel for the defendants still insisted that the whole
scope and bearing of the charge, rather than any particular
expression in it, tended to lead the jury to a different result
from what they would have been likely to attain from the law as
laid down in answer to the points made at the bar. He designed to
complain that "though it may not in terms have departed from the
instructions given in answer to those points, yet it did so in
effect."
Page 30 U. S. 197
The judge still refusing to sign the bill of exceptions
containing the whole charge, this motion is made.
The affidavit of Mr. Lord, counsel for the plaintiff in the
circuit court, is also exhibited. He states the proceedings at the
trial. The counsel for the defendants requested the opinion of the
court on various propositions of law, "and the court did then and
there, in presence of the jury and of counsel, pronounce distinctly
its opinion and decision upon every such proposition," after which
the judge proceeded to charge the jury on the evidence. After the
conclusion of his remarks, in the case against Crane, some
discussion arose between the defendants' counsel and the court, in
presence of the jury, in which some passages of the charge
appearing not to have been rightly understood by the defendants'
counsel or not to have been clearly stated; the court again stated
to the jury its charge on the points thus stated anew.
The bills of exceptions, prepared by the counsel for the
defendants, were submitted to the deponent as counsel for the
plaintiff, who objected to the insertion of the charge and stated
his reasons for the objection. The counsel on both sides attended
the judge, who said
"That he considered that which in the bills of exceptions is
called the charge, and which purports to contain all the remarks of
the judge on the evidence, improper to be inserted in the bills of
exceptions, and not permitted by law or the practice of the court;
that it was incumbent on the party excepting to specify the matters
of law complained of, and that if anything could be specified which
was not expressed in the decisions aforesaid of the points
submitted (which decisions are stated in the bills of exceptions),
he would allow the same to be inserted in the bills of exceptions,
but if that were not done, he should allow the amendment of the
plaintiff, and the statement called the charge to be struck
out."
The judge then was willing to allow exceptions to his opinions
on the questions of law which were made in the cause. He was also
willing to sign exceptions to any matter of law advanced by him to
the jury, which was not contained in the points reserved at the
trial. The counsel for the defendants insisted on spreading the
whole charge upon the record.
Page 30 U. S. 198
It appears to be customary in New York, as in several other
states, for the judge, after the arguments are closed, to sum up
the evidence at length to the jury and to state the law applicable
to facts, leaving it to the jury, however, to decide what facts
that evidence proved. Such a charge must necessarily consist
chiefly of a compendium of the testimony. To spread the charge upon
the record is to bring before the appellate court the view taken by
the judge of the testimony given to the jury. If any law was mixed
with this summary of evidence, the right of either party to except
is admitted. The question is whether an exception is allowable
which brings before the superior court so much of the charge as
relates to evidence.
In
Carver's
Case, 4 Pet. 80, this Court said
"We take this occasion to express our decided disapprobation of
the practice (which seems of late to have gained ground) of
bringing the charge of the court below at length before this Court
for review. It is an unauthorized practice and extremely
inconvenient both to the inferior and to the appellate court. With
the charge of the court to the jury upon mere matters of fact and
with its commentaries upon the weight of evidence this Court has
nothing to do. Observations of that nature are understood to be
addressed to the jury merely for its consideration as the ultimate
judge of matters of fact, and are entitled to no more weight or
importance than the jury in the exercise of its own judgment
chooses to give them. They neither are nor are they understood to
be binding upon it as the true and conclusive exposition of the
evidence. If indeed, in the summing up, the court should mistake
the law, that justly furnishes a ground for an exception, but the
exception should be strictly confined to that misstatement, and by
being made known at the moment, would often enable the court to
correct an erroneous expression, or to explain or qualify it in
such a manner as to make it wholly unexceptionable or perfectly
distinct. We trust, therefore, that this Court will hereafter be
spared the necessity of examining the general bearing of such
charges."
After such an expression of the opinion of this Court, it could
not be expected that a judge on his circuits would so
Page 30 U. S. 199
utterly disregard it as to allow an exception to his whole
charge. If, however, the opinion be unsupported by law, it ought to
be reconsidered and reversed.
At common law, a writ of error lay for error in law apparent on
the record, but not for an error in law not apparent on the record.
If a party alleged any matter of law at the trial and was overruled
by the judge, he was without redress, the error not appearing on
the record. 2 Inst. 42. To remedy this evil, the statute was passed
which gives the bill of exceptions. It is to correct an error in
law. Blackstone, speaking of this subject, says
"And if either in his directions or decisions, he [the judge]
mistakes the law by ignorance, inadvertence, or design, the counsel
on either side may require him publicly to seal a bill of
exceptions, stating the point wherein he is supposed to err. . . .
This bill of exceptions is in the nature of an appeal."
2 Blackstone 372.
It is also stated in the books that a bill of exceptions ought
to be upon some point of law either in admitting or denying
evidence or a challenge on some matter of law arising upon a fact
not denied in which either party is overruled by the court. A bill
of exceptions is not to draw the whole matter into examination
again; it is only for a single point, and the truth of it can never
be doubted after the bill is sealed. The judges in
Bridgman v.
Holt, speaking of evidence to be left to a jury, said "but no
bill of exceptions will lie in such a case by the statute when the
evidence is admitted and left to the jury." Show P.C. 120. Bul.Nisi
Prius 316. Bac.Abr. tit. Bill of Exceptions.
If an exception may be taken in such form as to bring the whole
charge of the judge before the court, a charge in which he not only
states the results of law from the facts but sums up all the
evidence, the exception will not be on a single point; it will not
bring up some matter of law arising upon a fact not denied; it will
draw the whole matter into examination again.
The affidavit in support of the motion gives us the strongest
reason for the course the mover has pursued, that the remarks of
the judge upon the law and facts were so blended that it was
believed to be impracticable to separate the remarks upon the law
from those upon the facts of the case in such a
Page 30 U. S. 200
manner as to give the defendants a full and fair opportunity to
review the judgment of the circuit court.
The difficulty, then, which appeared to the counsel to be
insurmountable, must be overcome by this Court. We must perform the
impracticable task of separating the remarks on the law from those
on the facts of the case, and thus draw the whole matter into
examination again.
The inconvenience of this practice has been seriously felt and
has been seriously disapproved. We think it irregular and
improper.
The motion is denied.
MR. JUSTICE BALDWIN dissenting.
The common law definition of a mandamus, which is adopted in
this Court, is
"a command issuing in the King's name from the Court of King's
Bench and directed to any person, corporation, or inferior court of
judicature within the King's dominion requiring them to do some
particular thing therein specified which appertains to their office
or duty and which the Court of King's Bench has previously
determined or at least supposes to be consonant to right and
justice."
Marbury v.
Madison, 1 Cranch 168.
As the first question which this motion presents is one of the
jurisdiction and power of this Court to grant the writ prayed for
in this case, it will be following the rule established to consider
it first,
7 U. S. 3 Cranch
172;
9 U. S. 5 Cranch
221;
23 U. S. 10 Wheat.
20;
5 U. S. 1 Cranch
91;
22 U. S. 9
Wheat. 816, a rule which never ought to be disregarded where a
question of power arises.
Though the question of jurisdiction may not be raised by
counsel, it can never escape the attention of the court, for it is
one which goes to the foundation of its authority, to take judicial
cognizance of the case if it cannot in the appropriate language of
the law hear and determine it. The cause is
coram non
judice, and every act done is a nullity. If I take this case
into judicial consideration, this is an assumption of jurisdiction
that necessarily results from a decision whether this is or is not
a proper case for a mandamus, for the Court hears and determines
the motion on its merits. Its refusal to grant the motion is not on
the ground that it has not power to consider it, but that, on
consideration, it rejects it.
Page 30 U. S. 201
This is as much an exercise of jurisdiction as to issue the
writ, as by examining the grounds of the motion, the court assume
the power to decide on it as the justice of the question may seem
to require. In my opinion, no new question of jurisdiction ought to
be acted on without an inquiry into the power of this Court to
grant the motion or to issue the process. The silent uncontested
exercise of jurisdiction may induce the profession to claim it as a
right founded on precedent, though the judgment of the court may
never have been given on the question of power, or their intention
have been drawn to it by the counsel. If, then, process should
issue improvidently, and the Court should find itself called upon
for the first time to examine its jurisdiction and power to issue
it; when obedience should be refused by the court to which it was
directed, and the question came before us on this return:
"The Court is unanimously of opinion that the appellate power of
the Supreme Court of the United States does not extend to this
Court under a sound construction of the Constitution of the United
States; that the writ of mandamus in this case was improvidently
issued under the authority of the twenty-fifth section of the
Judiciary Act of 1789; that the proceedings thereon in the Supreme
Court were
coram non judice in relation to this Court, and
that obedience to its mandate be declined by the court."
This Court would find itself in a very unenviable predicament
if, on a careful revision of the Constitution and laws, it should
be compelled to sanction the open contempt of its process or decree
by an inferior court to whom an order had been sent from this high
tribunal which it found itself forced to declare null and void. It
is hard to say which would be most fatal to its influence and
authority, the example or the consequences.
The judicial history of this Court presents one instance of such
a return on its records, and another in which the military force of
a state was in actual array in obedience to a law for opposing the
execution of a mandate, and a very recent occurrence might have
furnished a third incident had not a writ of error abated by the
death of the party suing it out.
The proceedings which have attended the assertion of the
unquestionable jurisdiction of the Court over cases which, after
having been discussed and considered in all their
Page 30 U. S. 202
bearings, have been solemnly decided, afford no uncertain
indication of the results to be expected from the exercise of their
power without discussion or inquiry into its existence and over
subjects on which it may, on examination, be found incapable of
acting.
When questions of jurisdiction arise, they must be settled by a
reference to the Constitution and acts of Congress. All cases
embraced within the judicial power of the government are capable of
being acted upon by the courts of the union. Those on which the
original jurisdiction of this Court can be exercised are defined
and cannot be enlarged.
19 U. S. 6
Wheat. 395-396,
19 U. S. 399.
It has no inherent authority to assume it over any others, and
Congress is incapable of conferring it by law.
5 U. S. 1 Cranch
173. Where the Constitution has declared the jurisdiction shall be
original, Congress cannot give it in its appellate form, and
vice versa. Marbury v.
Madison, 1 Cranch 174;
19 U. S. 6
Wheat. 399
22 U. S. 9
Wheat. 820-821.
Though the courts of the United States are capable of exercising
the whole judicial power as conferred by the Constitution, and
though Congress is bound to provide by law for its exercise in all
cases to which that judicial power extends, yet it has not been
done, and much of it remains dormant for the want of legislation to
enable the courts to exercise it, it having been repeatedly and
uniformly decided by this Court that legislative provisions are
indispensable to give effect to a power to bring into action the
constitutional jurisdiction of the Supreme and inferior courts.
14 U. S. 1
Wheat. 337;
19 U. S. 6
Wheat. 375,
19 U. S. 604;
22 U. S. 9
Wheat. 819-821;
25 U. S. 12 Wheat.
117-118.
These principles remain unquestioned. They have long been
settled as the judicial exposition of the Constitution on solemn
argument and the gravest consideration, and they are binding on all
courts and judges. I shall ever be found among the last to oppose
any opinion in opposition to the results of the deliberate judgment
of the highest judicial tribunal when thus formed. They bind my
faith, even though the reasons assigned might not carry conviction
to my understanding. We must respect the solemn decisions of our
predecessors and associates, as we may wish that those who succeed
us should respect ours, or the supreme law of the land, so far as
depends
Page 30 U. S. 203
on judicial interpretation, will change with the change of
judges. There may be exceptions to this rule. When they do occur,
my hope is that my reasons for a departure will be found in the
great principles of the government, which meet with general assent
in their adoption, though the most able and upright may differ in
their application. But in any cases which have arisen or may arise
in which the jurisdiction and power of this Court over the subject
matter of the parties is not questioned by counsel and deliberately
considered by the judges, or should be unnoticed in the opinion of
the court, I cannot acknowledge it as an authority affording a rule
for my decision or a guide to my judgment. Such a decision ought
neither to control my reason or settled conviction of preexisting
rules and principles of law.
These remarks are deemed proper as there are some cases in which
writs of mandamus have been issued under circumstances such as have
been referred to, or refused on the merits, but "the question of
jurisdiction was not moved, and still remains open," according to
the rule laid down by this Court in
Durousseau
v. United States, 6 Cranch 307, on a question
whether a writ of error could issue from the Supreme Court to the
District Court of Orleans, and by THE CHIEF JUSTICE in alluding to
the case of
United States v.
Sims, 1 Cranch 252, "no question was made in that
case as to the jurisdiction; it passed
sub silentio, and
the Court does not consider itself as bound by that case."
10 U. S. 6
Cranch 172.
These are the principles on which I shall examine the question
of jurisdiction. The first inquiry then will be has this Court by
law the power to issue a mandamus to a circuit court to sign a bill
of exceptions under the thirteenth and fourteenth sections of the
Judiciary Act, which have been relied on as authorizing it? So far
as this act gives the power to issue a mandamus to executive
officers, they have solemnly declared the law to be
unconstitutional and void, and that the power does not exist. It
being considered by the Court to be an exercise of original
jurisdiction, it remains to inquire whether it can be issued to any
courts appointed under the authority of the United States, and if
so in what cases.
This power is defined in
Marbury v.
Madison, 1 Cranch 175, in these words:
"To enable this Court, then, to issue a
Page 30 U. S. 204
mandamus, it must be shown to be an exercise of appellate
jurisdiction, or to be necessary to the exercise of appellate
jurisdiction. It is the essential criterion of appellate
jurisdiction that it revises and corrects the proceedings in a
cause already instituted, and does not create that cause."
In
United States v. Schooner
Peggy, 1 Cranch 110, we are furnished with this as
the judicial definition: "It is in the general true that the
province of an appellate court is only to inquire whether a
judgment when rendered is erroneous or not." That case furnished an
exception in these words:
"But if subsequent to the judgment, and before the decision of
the appellate court, a law intervenes and positively changes the
rule which governs, the law must be obeyed or its obligation be
denied."
In
McCluney v. Silliman, they lay down the same rule:
"The question before an appellate court is was the judgment
correct, not the ground on which the judgment professes to
proceed."
19 U. S. 6
Wheat. 603. Appellate jurisdiction being thus defined, its source
can only be found in the Constitution which confers it, both as to
law and fact, with such exceptions and under such regulations as
the Congress shall make, 1 Laws U.S. 68, and the Judiciary Act
which makes these exceptions and regulations. The thirteenth
section provides that the Supreme Court shall have appellate
jurisdiction from the circuit courts, and the courts of the several
states in the cases hereafter specially provided for. These are
defined in the twenty-second section as to the circuit courts and
in the twenty-fifth section, as to the state courts. 2 Laws U.S.
64-65.
This Court, from its first organization until this time, has
held that this enumeration of the cases in which it had appellate
jurisdiction was an exclusion of all others.
5 U. S. 1 Cranch
174-176;
7 U. S. 3 Cranch
172;
United States v.
Moore, 6 Cranch 313-314,
10 U. S. 318;
11 U. S. 7 Cranch
32, 44 [argument of counsel -- omitted],
11 U. S. 287,
11 U. S. 108-110;
19 U. S. 6
Wheat. 603;
22 U. S. 9
Wheat. 820-821;
25 U. S. 12
Wheat. 131-133,
25 U. S. 203.
The general principle the Court has acted on is this: "that they
imply a legislative exception from its appellate constitutional
power in the legislative affirmative description of these powers."
10 U. S. 6
Cranch 314. But if the appellate jurisdiction of this Court is
described in general terms so as to comprehend the case, and there
is no exception or regulation which would exclude it from its
general provisions
Page 30 U. S. 205
(as in
Wilson v.
Mason, 1 Cranch 91, which was a writ of error to
the District Court of Kentucky on cross-caveats for the same tract
of land), or if it was the obvious intention of the legislature to
give the power, and Congress has not excepted it, as on the
question which arose in the case of
Durousseau,
6 Cranch 312,
10 U. S. 318,
whether this Court could issue a writ of error to the District
Court of Orleans, they declared it
"to be the intent of the legislature to place those courts
precisely on the footing of the court of Kentucky in every respect,
and to subject their judgments in the same manner to the revision
of the Supreme Court,"
and therefore gave the law of 1804 (page 809) a liberal
construction.
Cohens v.
Virginia, 6 Wheat. 400, S.P.
But where the law of 1803 authorized a writ of error from the
circuit to the district court and omitted to provide one from this
Court to the circuit court, it was held not to be within its
appellate jurisdiction,
United States v.
Goodwin, 7 Cranch 108-110, though the law giving
this jurisdiction to the circuit court authorized appeals to the
Supreme Court from the circuit court from all final decrees and
judgments rendered or to be rendered in any circuit court, or any
district court having circuit court jurisdiction, in any cases of
equity, or admiralty, or maritime jurisdiction, prize or no prize,
where the sum in controversy exceeds $2,000, 3 Laws U.S. 561, and
the twenty-second section of the Judiciary Act authorized it on
judgments of the circuit court in civil actions in cases removed
there by appeal from the district courts. This too was an action of
debt, and the sum in controversy $15,000, but it being on a writ of
error from the circuit court, and not an appeal in the words of the
twenty-second section, this Court gave it its literal construction,
which had been settled in the case of
Wischart v. Dauchy,
cited by judge Washington in delivering the opinion of this Court
in
Goodwin's Case.
"An appeal is a civil law process, and removes the cause
entirely, both as to law and fact, to a review and new trial. A
writ of error is a common law process, and removes nothing for a
reexamination but the law."
This statute observes this distinction.
11 U. S. 7
Cranch 110-111.
These seem to me to be the only two cases in which the
Page 30 U. S. 206
appellate jurisdiction of the Supreme Court can be exercised --
appeals and writs of error. This corresponds with the definition
given by the Court itself as to its own powers and the strict
construction which it has (with the two excepted cases) given to
the twenty-second and twenty-fifth sections, which are in their
terms confined to final judgments and decrees of circuit and state
courts, and these are the only cases where this Court has ever
exercised appellate jurisdiction. It has uniformly refused where
the judgment or decree was not final,
16 U. S. 3
Wheat. 434,
16 U. S. 601;
19 U. S. 6
Wheat. 603;
25 U. S. 12 Wheat.
135, and it cannot well be contended that a refusal of a circuit
court to sign a bill of exceptions is a final judgment or decree or
that it partakes in any degree of the character of either. The
jurisdiction of circuit courts over causes removed from state
courts is considered as appellate. But the time, the process, and
the manner must be subject to the absolute legislative control of
Congress.
25 U. S. 12
Wheat. 349. The same may be said of the jurisdiction of this Court
over causes sent from the circuit court on a certificate of
division, but this is by a special provision of the law of 1802, 3
Laws U.S. 482, which has been construed with the same strictness as
the act of 1789.
19 U. S. 6
Wheat. 547;
23 U. S. 10 Wheat.
20;
25 U. S. 12
Wheat. 132.
The writ of mandamus contains no order to remove a cause or any
proceedings therein to the court issuing it, nor has it that
effect. The cause remains in the court below whether the writ be
obeyed or not, the sole object being to compel them to act on the
matter themselves, not to remove it for revision. That can only be
done by writ of error or appeal. These considerations make it
evident that the issuing a mandamus is not only not an exercise of
appellate jurisdiction, but wholly different in its nature, object,
and effect.
It was so considered in this Court in the case of
McIntire v.
Wood, 7 Cranch 499-500, 2 Cond. 588, in which it
was decided
"that the power of the circuit court to issue the writ of
mandamus is confined exclusively to those cases in which it may be
necessary to the exercise of their jurisdiction,"
and that cannot be the exercise of appellate jurisdiction, which
in this case and in
Marbury v. Madison, the Court
considered as a case wholly distinct. A mandamus being a writ
to
Page 30 U. S. 207
compel the performance of a ministerial act by a judicial
officer, is not and cannot be a subject matter for the cognizance
of an appellate court, which acts only on the judicial acts, the
judgments, and the decrees of inferior courts. In
United
States v. Lawrence, 3 Dall. 42-45, it was
unanimously decided that this Court could not issue a mandamus to a
district judge acting in a judicial capacity; that it had no power
to compel a judge to decide according to any judgment but his own.
So in
5 U. S. 1 Cranch
171, where the head of a department acts in a case in which
executive discretion is to be exercised, in which he is the mere
organ of executive will, it is again repeated that any application
to control in any respect his conduct would be rejected without
hesitation. In
McCluny v. Silliman, it was determined that
this Court had not jurisdiction to issue this writ to the register
of a land office where it had been refused by the highest court of
the state in which it was located, and in the same case in
19 U. S. 6 Wheat.
598, it was distinctly decided that the power existed neither in
the circuit nor Supreme Court, and all the principles herein stated
were reaffirmed and finally settled. If judicial authority is to be
respected, it is useless to pursue this branch of the inquiry any
further.
I think, then, that the issuing of a mandamus by this or a
circuit court, is not an exercise of appellate jurisdiction. There
seems to be no judicial opinion in favor of the affirmative of the
proposition, and the cases referred to have been decided in the
true construction of the thirteenth section of the Judiciary Act,
which declares "that the Supreme Court shall have appellate
jurisdiction from the circuit courts of the several states in cases
specially hereinafter provided for." This is a distinct clause, and
does not include the power to issue a mandamus as an act of
appellate jurisdiction.
The next clause giving this power is
"and shall have power to issue writs of prohibition to the
district courts, when proceeding as courts of admiralty and
maritime jurisdiction, and writs of mandamus in cases warranted by
the principles and usages of law to any courts appointed or persons
holding office under the authority of the United States."
This is an express declaration of Congress that the power of
this Court to issue a mandamus is not conferred as appellate
jurisdiction in the
Page 30 U. S. 208
cases specially provided for in the subsequent part of the law,
but only in cases warranted by legal principles and usages, not
referring to the Constitution and laws of Congress, but, as will
appear hereafter, to the principles and usages of courts of common
law. For it cannot be the sound construction of this section that
the power to issue a mandamus in a case not mentioned in the law
can be raised by implication in a case not within the express power
given in a subsequent clause of the same section.
The issuing of this writ not then being an act of appellate
jurisdiction, I now come to the examination of the second branch of
the proposition laid down by the court in
Marbury v.
Madison.
Is the issuing of this writ within the fourteenth section of the
Judiciary Act, which provides
"That all the before-mentioned courts of the United States shall
have power to issue writs of
scire facias, habeas corpus,
and all other writs not specially provided for by statute which may
be necessary for the exercise of their respective jurisdictions and
agreeable to the principles and usages of law."
The words and evident meaning of this law carry its construction
on its face. It enumerates two writs, but does not mention a
mandamus. The reason is obvious -- that had been provided for in
the preceding section. Congress could not have foreseen in 1789
that any part of its legislation on the subject of mandamus would
have been declared unconstitutional and void in 1803, and the
decision in
Marbury v. Madison can have no bearing on the
fourteenth section. It must be construed as if the powers conferred
in the preceding section had been constitutional and in full
exercise by this Court to the extent named in the law; that is to
every court appointed, and to all persons holding office under the
authority of the United States, in all cases warranted by the
usages and principles of law. This is certainly an express and
plenary power, ample to embrace a case where the power was
necessary to exercise the jurisdiction of this Court. It took away
the necessity of a mandamus under the power given in the fourteenth
section, and left it without any application to such a case as the
present, if the mandamus was warranted by the principles and usages
of law, and if it was not so warranted, then it is excluded by this
section.
Page 30 U. S. 209
Besides, the thirteenth section gives the power expressly to
issue this writ by name; the fourteenth gives it only by
implication. I do not feel at liberty to reject a power expressly
delegated and seek for one by mere implication and construction,
taken from a subsequent part of the same law, without a violation
of the well settled principles of construing statutes and the very
words of this. The authority to issue any other writs than
fieri facias and habeas corpus is confined to those "not
specially provided for by statute;" a mandamus was provided for by
the preceding section of the same statute, and therefore was not
within this authority. The same rule of construction which this
Court has applied to the thirteenth must be carried to the
fourteenth section, and the grant of an affirmative power in a
specified case or class of cases excludes all others, according to
the cases before cited.
Construing these two sections then as if the power conferred by
both were valid, it is apparent that the fourteenth section could
not have been intended to embrace a mandamus to a court of the
United States: the very case provided for by that part of the
thirteenth section, which has never been declared unconstitutional.
It thus appears clearly to my mind that the decisions of this Court
and the act of 1789 negative both parts of the proposition, which
is laid down in
5 U. S. 1 Cranch
175, as necessary to make out a power in this Court to issue a
mandamus to a court of the United States. But if the affirmative of
this proposition is admitted, the law requires something more. The
power does not arise unless in cases warranted by the principles
and usages of law. Is this such a case?
This Court has repeatedly declared its sense of the meaning of
these terms in acts of Congress organizing and conferring powers
upon the federal courts. They do not apply to the usages,
principles, and practice of the state courts, but to those of
common law, equity, and admiralty jurisdiction of England. There
was an obvious reason for this: most of the states had a local
common law. The English common law was a system which was intended
to be applied to the exercise of the judicial power of the courts
of the union, who were vested with an appellate jurisdiction over
the highest courts of every state, and the necessity is obvious of
proceeding
Page 30 U. S. 210
according to uniform principles and usages well known and
defined on the subject of its powers and jurisdiction.
Bodley v.
Taylor, 5 Cranch 222;
Robinson v.
Campbell, 3 Wheat. 222;
Ex Parte
Kearney, 7 Wheat. 45;
Fullerton v. Bank of the
United States, 1 Pet. 613;
Bank of
the United States v. Halstead, 10 Wheat. 56.
The principles and usages of law which warrant the issuing of
this writ are clearly laid down in
5 U. S. 1 Cranch
168-169:
"Whenever there is a right to execute an office, perform a
service, or exercise a franchise, more especially if it be a matter
of public concern or attended with profit, and a person is kept out
of possession of such right, and has no other specific legal
remedy, the court ought to assist by mandamus upon reasons of
public policy to preserve peace, order and good government; this
writ ought to be used upon all occasions where the law has
established no specific remedy, and where in justice and good
government there ought to be one."
These are the words of the Court of King's Bench adopted by
this. They further observe:
"Still, to render the mandamus a proper remedy, the officer to
whom it is to be directed must be one to whom such writ may be
directed, and the person applying for it must be without another
specific or legal remedy; both must concur."
5 U. S. 1 Cranch
169.
It is a prerogative writ, Comyn's Digest tit. Mandamus A,
issuing from the Court of King's Bench by virtue of its general and
supervising powers, 3 Burr. 1265, 1267, on motion, and for cause
shown. This is a court of special jurisdiction, limited in the
exercise of its powers to specified cases; it has no prerogative
powers and can issue no prerogative writs; it possesses no general
supervisory powers over inferior tribunals, and can in no case
grant a mandamus on its inherent authority.
19 U. S. 6
Wheat. 600. Its implied powers are to fine for a contempt, imprison
for contumacy, enforce the observance of order.
11
U. S. 7 Cranch 34. It may regulate process and practice,
but under an authority given by law.
23 U. S. 10 Wheat.
22,
23 U. S. 55,
23 U. S. 64. This
then is not a court which by the principles and usages of the
common law can issue a mandamus, not having a general
superintending jurisdiction like the King's Bench, but having no
power to do it unless by express and delegated authority. In New
York, the supreme court has claimed this
Page 30 U. S. 211
power on a mandamus to an inferior court to sign a bill of
exceptions, but the reason assigned is
"We have the general superintendence of all inferior courts, and
are bound to enforce obedience to the statutes and oblige
subordinate courts and magistrates to do those legal acts which it
is their duty to do."
The court admits, however, that so late as 1810, the application
is entirely new; that no instance appears of such a writ issuing
out of the King's Bench, when an inferior court refused to seal a
bill of exceptions, and if complaint should be made against this
Court or one of its judges for refusing to seal a bill of
exceptions, then the writ must
ex necessitate come from
chancery, if anywhere, but in no other case can it be
indispensable.
Sikes v. Ransom, 6 John. 279-280. The writ
founded on and reciting the Statute of Westminster the Second, 13
Edward I, ch. 31, is to be found in Ruffhead 99-100, commanding the
judges to put their seals to the exceptions, as is prescribed by
the statute aforesaid, and that on
periculo quod encumbit
nullatores.
The writ is set forth at large in the Registrum Brevium, 182a,
title Brevia de Statuto, and was devised to enforce obedience to
the statute, made out by the Court of Chancery; it is issued on
special application, founded on the right of the Crown to compel
its officers to pay obedience to the statutes. It is a sort of
prerogative writ -- a mandatory writ. The judges to whom it is
directed are supposed by the writ to have done wrong. They may obey
the writ by sealing the exceptions, or they may make a special
return, which must be made to the King in chancery, and can be made
no where else, and in issuing the writ the Court of Chancery acts
as much judicially as the Court of King's Bench does in granting a
mandamus. If the judges make a false return, an action may be
brought against them. 1 Sch. & Lefr. 78, 79. Lord Redesdale
quashed the bill which had been issued to the Court of King's Bench
by the decision of the court. 1 Sch. & Lefr. 75, 79.
In
The Rioters' Case, 1 Vernon 175, a motion was made
to grant a mandatory writ to the Chief Justice of the King's Bench,
and they produced a precedent where in like cases such a writ had
issued out of chancery to the judge of the Sheriff's Court of
London,
"but the Lord keeper denied the motion, for that the precedent
they produced was to an inferior court, and he
Page 30 U. S. 212
could not presume but the Chief Justice of England would do what
should be just in the case; for possibly you may tender a bill of
exceptions which has false allegations and the like, and then he is
not bound to sign it, for that might be to draw him into a snare,
and said if they had wrong done them they might right themselves by
an action on the case."
In
Bridgman v. Holt, Show.Par.Cases, 111, a writ of
error to the Court of King's Bench was pending in the House of
Lords; an order was prayed for to the judges to seal a bill of
exceptions (which the court had refused at the trial), to the end
that the said case might, as by law it ought, come entirely before
their Lordships for judgment, &c. The house ordered copies of
this petition to be given to the judges, that they should put in
their answers in writing. They replied by protestation and saving
their rights, declaring
"So that if the pretended bill was duly tendered to these
respondents, and was such as they were bound to seal, these
respondents are answerable for it by the course of the common law
in an action to be brought on the Statute of Westminster the
Second, ch. 21, which ought to be tried by a jury of twelve honest
and lawful men of England by the course of the common law, and not
in any other manner."
"And the respondents further show, and humbly offer to your
Lordships' consideration, that the petition is a complaint in the
nature of an original suit, charging these respondents with a crime
of a very high nature; in acting contrary to the duty of their
office, and so altogether improper, for your Lordships' examination
or consideration, not being any more triable by your Lordships than
every information or action for breach of any statute law is; all
which matters are by the common law, and justice of the land, of
common right to be tried by a jury."
"And the petition is wholly of a new nature, and without any
example or precedent, being to compel judges, who are by the law of
the land to act according to their own judgments without any
constraint or compulsion whatsoever, and trenches upon all mens'
rights and liberties, tending manifestly to destroy all trials by
jury."
"And it is further manifest that this complaint is utterly
improper for your Lordships' examination, for that your
Page 30 U. S. 213
Lordships cannot apply the proper and only remedy which the law
hath given the party in this case, which is by awarding damages to
the party injured (if any injury be done), for these are only to be
assessed by a jury. And they, these respondents, are so far from
apprehending they have done any wrong to the petitioners in this
matter that they humbly offer, with your Lordships' leave, to waive
any privilege they have as assistants to this honorable house, and
appear
gratis to any suit which shall be brought against
them in Westminster hall touching the matter complained of."
"And they further, with all humility, offer to your Lordships'
consideration that, as they are judges, they are under the solemn
obligation of an oath to do justice (without respect to persons),
and are to be supposed to have acted in this matter with and under
a due regard to that sacred obligation, and therefore to impose
anything contrary upon them may endanger the breaking of it, which
they humbly believe your Lordships will be tender of."
"And they further humbly show to your Lordships that by a
statute made in 25 Edward III ch. 4, it is enacted, that from
thenceforth none shall be taken by petition or suggestion to the
King or his council, unless by indictment or presentment of good
and lawful people of the neighborhood, or by process by writ
original, at common law, and that none shall be put out of his
franchise or freehold, but by the course of the common law. And by
another statute in the twenty-eighth of Edw. III, ch. 4, it is
expressly provided that no man shall be put out of his lands or
tenements or imprisoned or disinherited, but by due process at law.
And by another statute, made in the forty-second Edw. III, ch. 3,
it is enacted that no man shall be put to answer without
presentment before justices, or matters of record on due process
and original writ, according to the old law of the land."
"And the respondents further say that inasmuch as the petition
is a complaint in the nature of an original cause for a supposed
breach of an act of Parliament, which breach (if any be) is only
examinable and triable by the course of the common law, and cannot
be in any other manner, and is in the example of it dangerous to
the rights and liberties of all men, and tends to the subversion of
all trials by jury; these respondents
Page 30 U. S. 214
consider themselves bound in duty (with regard to their offices
and in conscience to the oaths they have taken) to crave the
benefit of defending themselves touching the matter complained of
by the petitioners by the due and known course of the common law,
and to rely upon the aforesaid statutes, and the common right they
have of free born people of England, in bar of the petitioners' any
further proceeding upon the said petition, and humbly pray to be
dismissed from the same."
This is the language of the judges of the Court of King's Bench
to the highest court in England. I believe it to be in the true
spirit of the principles and usages of the common law. It was
boldly held to a court composed of the aristocracy, the clergy, the
judges of the common pleas, and barons of the Exchequer, in which
the Lord Chancellor presides. It was a manly defiance of their
power, and fearless appeal to their common right as free born
people of England, the common law, the guardian mother of liberty,
wherever adopted.
The counsel for the application did not controvert a principle
asserted by the judges, and did not show a precedent; the House of
Lords did not grant the writ, and the case ends with four blank
lines containing, "and afterwards. . . ." The blank would have been
filled up if in so solemn a contest the arm of power had prostrated
the law of the land.
The principles of the judges are a part of that great system
which our ancestors introduced and on which our best institutions
are built. They are in my opinion a part of the common law of every
state and of every common law court, state or federal, safe guides
to the highest, or its component members sitting in a circuit
court. The judges of King's Bench humbly offered to their
Lordships' consideration that they acted under oath, the breaking
of which might be endangered, if they obeyed their order. If this
Court asserts and exercises this power by directing writs of
mandamus to every court, over which they have appellate
jurisdiction, an answer might a second time be entered on our
records, in terms of protestation, not offered in all humility to
our consideration, whether the breaking of their oaths should be
endangered by obeying; we might expect disobedience to the
Page 30 U. S. 215
writ, and contempt of powerless, defied jurisdiction. I hope
never to see the judges of the highest court in a republic afraid,
when their judgment tells them that they stand on the written
Constitution, and law of the nation, and their duty is called into
action on a proper occasion, to assert and maintain those great
principles of jurisprudence avowed in the highest court in a
monarchy, by judges of a subordinate one, under a Constitution
unwritten, and which could give no control to a legislative power,
which was omnipotent. The right of disobedience to a writ from a
superior court to an inferior one is not alone to be found in the
courts of a foreign country. That it may and ought to be exercised
by a district court of the United States, to a writ from the
circuit court, which it has no power to issue, has received the
deliberate sanction of this Court.
"The court deems it proper to take some notice of the mode of
proceeding for removing this case from the district to the circuit
court; it is believed to be novel in the practice of the court of
the United States, and it certainly wants the authority of law to
sanction it. There is no act of Congress which authorizes a circuit
court to issue a compulsory process to the district court for the
removal of a cause from their jurisdiction before a final judgment
or decree is pronounced. The district court therefore might and
ought to have refused obedience to the writ of certiorari issued in
this case by the circuit court, and either party might have moved
the court for a
procedendo after the transcript of the
record was removed into the circuit court, or might have pursued
the cause in the district court, in like manner as if the record
had not been removed."
Patterson v. United
States, 2 Wheat. 225-226, opinion of the Court
delivered by Mr. Justice Washington.
The circuit court has unquestioned appellate jurisdiction over
the district court. The fourteenth section of the Judiciary Act
authorizes all the courts of the United States to issue all other
writs not specially provided for by statute which may be necessary
for the exercise of their respective jurisdiction agreeably to the
principles and usages of law. The writ of certiorari is not
specially provided for by any statute; it is a common law writ
issued by all superior appellate courts to inferior ones and by
them to
Page 30 U. S. 216
magistrates; it is the peculiar and appropriate process for
ordering a record or proceeding to be certified to a superior
tribunal. But being novel in practice, authorized by no act of
Congress, it ought to be resisted, it was a nullity. The record,
though removed in fact to the circuit, remained in the district in
law, and its power to hear and determine it remained as full as
before the writ was obeyed. It is not necessary for me to make a
detailed application of that case to this; it applies to all cases
where process is applied for to a court which has no power to issue
it. In a new case, the rule laid down by the chancellor in 1 Vern.
170 is a sound and safe one:
"but the Lord keeper told him that though he had the custody of
the great seal, yet he would make no use thereof, but according to
the course for the court."
Questions of jurisdiction and power ought neither to be sought
nor avoided; a great one has arisen in a very small case, but such
cases generally lead to the development of the mighty principles
which subvert and found governments. We are asked to issue a
mandamus to the Circuit Court of New York under circumstances which
would not justify one to a county court. This part of the case was
very properly submitted without argument, and if the application
could have been rejected on its merits without jurisdiction to hear
and determine "oyer and terminer" the merits, and to refuse or
issue the writ according to the justice and law of the case, I
should have required no consideration; but as the existence of
jurisdiction must precede its exercise, I have been forced to the
investigation of this case, which, simple as it is on the merits,
necessarily involves principles which are the foundation and
cornerstones of the Judicial Department of this government.
I am abundantly satisfied that the judicial power does not
extend to this case; that the Constitution and acts of Congress do
not authorize a mandamus from this to a circuit court to sign a
bill of exceptions; that it is warranted by no principle or usage
of law, either the common law of this country or of England; that
the issuing of it is neither an exercise of appellate jurisdiction
under the thirteenth, nor necessary to the exercise of the
jurisdiction of this Court, within the provisions of the fourteenth
section of the Judiciary Act; that
Page 30 U. S. 217
if the writ can be issued at all, it is specially provided by
statute, and can in no case issue from this Court, as called for by
this motion, agreeably to the principles and usages of law. This
Court has repeatedly decided that this means the common law of
England, as administered in her courts of law and equity. In
tracing their course since the adoption of the statute of
Westminster in 1285, I find that the Court of King's Bench, the
only court in the Kingdom which by virtue of its high general
prerogative and superintending jurisdiction can issue the high
prerogative writ of mandamus to any court of record, has never
issued one to sign a bill of exceptions; that such a writ is not an
exercise of appellate jurisdiction or necessary to it, but of
original inherent power; that the power to issue it to the Court of
King's Bench was solemnly denied to the highest appellate court in
England; that the mandatory and kind of prerogative writ, which has
been devised and founded on the Statute of Westminster, as the only
process by which its provisions are enforced, issues from the King
in chancery, on application to the keeper of his conscience; and
that the High Court of Chancery has no appellate jurisdiction over
any court of record; that the writ when issued is not in virtue of
appellate jurisdiction in that court, or as necessary to its
exercise. These are the only cases in which, according to the
solemn opinion of this Court in
Marbury v. Madison, it can
issue the writ; thus adjudging and declaring that the union of the
legislative and judicial power of this government was incompetent
to authorize one to the Secretary of State; in a case appropriate
for its exercise, and warranted by the principles and usages of the
common law, as defined by Blackstone and Lord Mansfield and adopted
by this Court. In the absence of a solitary precedent in England
since the 13 Edw. I or in this Court from its first organization,
although this statute forms a part of the law of every state court
of record, and of the federal courts in civil cases, which come
here for revision; I am constrained to withhold my assent to the
exercise of any power over the subject matter of this motion. It
seems to me to be as inconsistent with our own decisions, as with
the principles and usages of the common law.
There is another objection to the exercise of this power in this
case equally fatal. Two things must concur to authorize
Page 30 U. S. 218
a mandamus. The officer to whom it is directed must be one to
whom on legal principles such writ can be issued, and the person
applying for it must be without any other specific or legal remedy.
The cases referred to clearly negative the first requisite. It
cannot be issued to a judge of the highest court in the land; to a
judge of an inferior court to perform a Judicial Act, or compel him
to decide according to any judgment but his own; to an executive
officer who may act or not according to his own discretion, or is
subject to the discretion of another.
As the matter contained in the bill of exceptions forms a part
of the record, the Supreme Court must take it as true. It admits of
no contradiction by any proof. The signing of it by the circuit
court is not a ministerial act, but is in its nature judicial,
relating to the admission or rejection of what is offered in
evidence, or matter of law given in charge to the jury or withheld
by the court. An order from a superior to an inferior court to make
that a part of the record which they do not feel it their duty to
do, is in effect to compel them to decide by the judgment of
others, and not according to their own.
The next requisite which the supreme court says is necessary is
manifestly wanting. There is, by the principles and usages of the
common law, a specific legal remedy provided for the very case, by
a special writ from chancery, returnable before the King in
chancery, reciting the mandatory parts of the statute of
Westminster. Though no act of Congress authorizes this writ to
issue from any court, there is a specific and legal remedy by an
action in the statute for a false return, and a special action on
the case, if the judges refuse to seal the bill of exceptions when
duly taken and tendered. This abundantly appears by the writ in the
register, and the opinion of Lord Chancellor King, in 1 Vernon, of
Lord Redesdale, in 1 Sch. & Lefr., of the Court of King's Bench
in
Bridgman v. Holt, of justice Buller in his Nisi Prius
316; and of the supreme court of New York in 6 Johnson, and in
the absence of even a
dictum to the contrary. These
opinions and cases must be taken as clearly showing the law to be
well settled that these remedies are both specific and legal; the
writ in the register is alone sufficient to show this. Lord Coke
declares original writs to be the foundation of the law. Preface to
8th Reports.
Page 30 U. S. 219
As the absence of such remedy forms a part of the definition of
the only cases in which, according to the doctrine of the Court of
King's Bench, adopted in
5 U. S. 1 Cranch
168-169, by this Court, a mandamus can issue; the opinions of both
coincide in declaring this not to be such a case.
It may be proper to notice some cases from which it may be
inferred that these principles have not been uniformly adhered to.
In
Lessee of Bradstreet v.
Thomas, 4 Pet. 102, an application was made to
direct a mandamus to the district judge of the Northern District of
New York to sign a bill of exceptions; a rule to show cause was
granted at the January term, 1829, but discharged at the next term
on the merits. The question of jurisdiction was not moved, and
passed
sub silentio, thus affording, in the language of
the court in
10 U. S. 6
Cranch 317, and of THE CHIEF JUSTICE in
7 U. S. 3 Cranch
172, a sufficient answer to the supposed authority of Mrs.
Bradstreet's case.
The same answer applies to
United States v.
Peters, 5 Cranch 115,
9 U. S. 134, in
which a mandamus was issued to the district judge of Pennsylvania
to order an attachment in the celebrated case of
Olmstead.
No objection was made to the writ, and the cause was submitted
without argument, for reasons apparent in the return of the judge,
who had previously rendered a final sentence. The case of
Livingston v. Dorgenois was a writ of error to the
District Court of Orleans. The counsel for the appellant dismissed
his writ of error without the opinion of the court having been
delivered. He then prayed a writ of mandamus
nisi in the
nature of a
procedendo, which was granted without argument
or question of jurisdiction.
11 U. S. 7
Cranch 557,
11 U. S. 589. The
writ of
procedendo to a district court is within the words
of the thirteenth section of the Judiciary Act.
The decisions of state courts, deriving their authority from
state constitutions or laws, are no test of the powers of the
courts of the United States; nor have their usages or practice ever
been adopted by any act of Congress or rule of the Supreme Court,
except so far as relates to the federal courts sitting within a
state; but as much reliance has been placed on the case in 6
Johnson 278, 280, I think proper to observe that the claim of the
Supreme Court in that case was expressly
Page 30 U. S. 220
founded on their general controlling supervisory power over all
inferior courts and tribunals under the laws of New York, placing
them on the same footing as the Court of King's Bench in England --
a power not pretended to exist in this.
If, however, this case is any authority, it is directly opposed
to the power which we are now called on to exercise. If, said that
court, a complaint was made against them or one of its judges for
refusing to sign a bill of exceptions, the writ must,
ex
necessitate, come from chancery, if anywhere, but in no other
case can it be indispensable. If this assertion by that court of
its power to issue this writ to any inferior court, for such
purpose and for such reasons as they assign, is to be followed in
this Court as a safe guide to its powers under the Constitution and
laws of the United States, then we may, as representing the Court
of King's Bench in its high prerogative character, issue a
prerogative mandamus to any district court, and as representing the
King in chancery, and the chancellor as the keeper of his
conscience and the great seal of the Kingdom, issue the special
mandatory sort of writ prescribed by the statute of Westminster.
Those who feel themselves invested with such authority, as part of
the judicial power of the government, must exercise it, but for
myself I must disclaim it as neither conferred by any act of
Congress or the principles and usages of the common law. I do not
feel justified in adopting them from any state court acting under
state laws and usages, especially where that court declares the
assertion of the principle to be new, more than thirty years after
the federal courts were organized. Having no authority under the
twenty-fifth section to revise that opinion, I am not disposed,
extrajudicially, to question its authority in the state where it
was pronounced; but believing it to be contrary to the best
established rules and principles of the common law, as well as to
the uniform construction which this Court has given to the
thirteenth and fourteenth sections of the Judiciary Act, in its
general principles, I cannot adopt them. Though no one respects
more than myself the adjudication of that court, yet I should be
utterly wanting in that which is due to the Constitution, the acts
of Congress, and the course of this Court for more than forty years
by making a state decision the standard of our constitutional
powers.
Page 30 U. S. 221
I have thus searched among the fountains and consulted the
written oracles of the common law. The streams of justice which
have flowed from the one have run in one unbroken current for 546
years, without such a mandamus as this seen floating even on the
surface. The responses from the other are the voice of the law,
speaking through all ages in one unvarying tone, delivering the
results of human wisdom, developed in principles, matured,
digested, explained, enforced, and supported during five centuries,
amidst all the conflicts of party vengeance, civil war, and regal
oppression.
But in reply to the question, has such a writ as this now asked
for ever formed a part of the principles or usages of the common
law of England, the response through all time has been the same: it
is not the lineal descendant of the venerated mother of our best
institutions. I have drawn largely on the adjudications of this
high tribunal, and sought in the principles established by the
great men who have formed an embryo system of American
jurisprudence, that will not cower before any which has required
centuries to build up in Europe. There, too, I find no writ issued,
no power asserted, to command a circuit court to seal a bill of
exceptions. Without a rule to bind my faith, a decision to
influence my judgment, a reason to enlighten my understanding, and
without one precedent to justify me in disobeying the settled
convictions of my conscience, I have a plain course to take -- a
plain line to guide me in the path of duty. Believing that the law
of the land does not authorize this writ, that it is the exercise
of a power neither inherent nor conferred; I am compelled to resist
it; my judgment has been formed on the Constitution and laws of the
union, the common law of England, of all the states and the nation,
and cannot be surrendered to human authority. I am well aware of
the weight of that against which on several questions of
jurisdiction, my duty has compelled me to stand alone, and may
again compel me; it is against odds truly fearful, but to act
against my conscience and conviction of duty would be more fearful
still. Internal calm and peace of mind are too precious at my time
of life to be impaired by any considerations; while all is at ease
within, it little matters how the storm rages without. Judges do
not
Page 30 U. S. 222
sit on cushions of down, while administering the supreme law of
the land in this Court, their constitutional powers are not like
those of the other departments of the government, though the case
arises which brings them into existence, their exercise is
discretionary.
19 U. S. 6
Wheat. 404. But with us, power and duty to bring it into action are
inseparable: whenever a case calls for it, the call is imperative.
Questions of jurisdiction are important in all governments, but
most powerful in this. They must be approached with caution, and
examined with deliberation, but cannot be avoided. When made by
counsel or suggested by ourselves, we must examine them with the
greatest assiduity; when not aided by the researches, and
enlightened by the display and conflict of the talents and
intelligence of the bar, and without the responsibility of even an
argument, this Court is called on to assert a power, which in the
forty-two years of its existence it has never exercised, that power
growing out of a statute under which it has never been exercised,
during the more than five centuries which have elapsed since its
enactment even in the country in which it was first adopted; to be
exercised by a prerogative writ, which can be granted only by one
high prerogative court in England, in which the King is presumed to
be present, and the proceedings to be
"coram dominiregis
ubicumque fuerimus in Angliaco," which can issue the writ only
by virtue of its great supervisory powers over all inferior courts,
magistrates, officers and corporations, to force obedience to the
statutes, and compel them to do those legal acts which it is their
duty to do. I must follow my own judgment, and dissent in the
threshold:
obsta principiis -- stare decisis.
The importance of the principles involved in this case, not only
as they bear on the jurisdiction of this Court in issuing
prerogative writs to the inferior courts of the United States, but
also on the appellate power conferred on them by the Constitution
and the twenty-fifth section of the Judiciary Act over the state
courts, has made it a high duty to give this application a most
deliberate examination. Compelled to dissent, I was bound to give
my reasons, and cite the authority on which my judgment was formed.
Another reason is equally imperious. Sitting here or elsewhere, it
is my duty to exercise all the powers given by the Constitution,
which the
Page 30 U. S. 223
legislation of Congress has authorized the court to bring into
action on the cases which may properly arise, and call for their
application, and to enforce the judgments and decrees of either
tribunal of which I am a member, by all the process and physical
means which the laws have placed at its command, and on the failure
of these to apply to the executive to see that the laws are
executed; I approach all questions of power and jurisdiction with
caution, and shall stop in the beginning unless satisfied that the
Constitution and laws empower and enjoin it as a duty to proceed
and finish what we can begin. Fully satisfied that on the discreet
exercise of the powers of this Court, much of the strength and
public usefulness of the government depends, I have no fear that
its judgments will ever cease to command the support and confidence
of the country, while they are applied only to subjects clearly
within the judicial power, according to the laws which regulate
their exercise. But I do most seriously apprehend consequences of
the most alarming kind by the extension of its powers by any
analogy to the supreme prerogative jurisdiction of the Court of
King's Bench or a state court, and its application to process
hitherto unknown in the history of the jurisprudence of England or
this Court.
Via trita, via tuta.
MR. JUSTICE JOHNSON concurred verbally with MR. JUSTICE BALDWIN
in the opinion, that the Court had no authority to grant the
mandamus as prayed for; and he was of opinion that the whole charge
as delivered to the jury by the court should be stated in a bill of
exceptions if required by the counsel who took the exceptions.
Motion overruled and mandamus prayed for refused.