Kendall v. United States ex Rel. Stokes, 37 U.S. 524 (1838)

U.S. Supreme Court

Kendall v. United States ex Rel. Stokes, 37 U.S. 12 Pet. 524 524 (1838) Kendall v. United States ex Rel. Stokes

37 U.S. (12 Pet.) 524

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES IN

THE DISTRICT OF COLUMBIA FOR THE COUNTY OF WASHINGTON

Syllabus

Contracts for carrying the mail of the United States were made by S. & S. with the Postmaster General of the United States out of which certain allowances and credits were made in favor of S. & S. by that officer, and the amount of the same was passed to the credit of S. & S. with the General Post Office. The successor of the Postmaster General struck out the allowances and credits in the accounts, and thus a large sum of money was withheld from the contractors. S. & S. presented a memorial to Congress, and an act was passed authorizing and directing the Solicitor of the Treasury of the United States to settle and adjust the claims of S. & S. according to the principles of equity and directing the Postmaster General to credit S. & S. with whatever sum of money the Solicitor should decide should be due to them. The Solicitor of the Treasury made a decision on the claims of S. & S., and communicated the same to the Postmaster General, who thereupon, carried to the credit of S. & S. a part, but refused to credit a part of the amount allowed by the Solicitor. S. & S. applied to the President of the United States, who referred the subject to Congress, and the Senate of the United States determined that no further legislation on the subject was necessary and that the decision of the Solicitor of the Treasury ought to be complied with by the Postmaster General. The Postmaster General continued to withhold the credit. S. & S. applied to the Circuit Court of the United States for the District of Columbia for a mandamus, to be directed to the Postmaster General commanding him to credit them with the amount found to be due to them from the United States according to the decision of the Solicitor of the Treasury. A peremptory mandamus was finally ordered, and the Postmaster General brought the case before the Supreme Court by a writ of error.

By the court.

"It has been considered by the counsel on the part of the Postmaster General that this is a proceeding against him to enforce the performance of an official duty, and the proceeding has been treated as an infringement on the Executive Department of the government, which has led to a very extended range of argument on the independence and duties of that department, but which, according to the view taken by the Court of the case, is entirely misapplied. We do not think the proceeding in this case interferes in any respect whatever with the rights and duties of the executive or that it involves any conflict of powers between the executive and judicial departments of the government. The mandamus does not seek to direct or control the Postmaster General in the discharge of his official duty partaking in any respect of an executive character, but to enforce the performance of a mere ministerial act, which neither he nor the President had any authority to deny or control."

The judgment of the circuit court was affirmed.

By the act of Congress directing the Solicitor of the Treasury to adjust and settle the accounts of S. & S., the Postmaster General is vested with no discretion or control over the decision of the Solicitor, nor is any appeal or review of that decision provided for by the act. The terms of the submission was a matter resting entirely in the discretion of Congress, and if it thought proper to vest such a

Page 37 U. S. 525

power in anyone, and especially as the arbitrator was an officer of the government; it did not rest with the Postmaster General to control Congress or the Solicitor in that affair. It is unnecessary to say how far Congress might have interfered by legislation after the report of the Solicitor, but if there was no fraud or misconduct in the arbitrator -- of which none is pretended or suggested -- it may well be questioned whether S. & S. had not acquired such a vested right as to be beyond the power of Congress to deprive them of it.

The right of S. & S. to the full amount of the credit, according to the report of the Solicitor of the Treasury, having been ascertained and fixed by law, the enforcement of that right falls properly within judicial cognizance.

It was urged at the bar that the Postmaster General was alone subject to the direction and control of the President of the United States with respect to the execution of the duty imposed on him by the law under which the Solicitor of the Treasury acted, and this right of the President was claimed as growing out of the obligation imposed upon him by the Constitution to take care that the laws be faithfully executed.

By the Court

"This doctrine cannot receive the sanction of this Court. It would be vesting in the President a dispensing power which has no countenance for its support in any part of the Constitution, and is asserting a principle which, if carried out in its results to all cases falling within it, would be clothing the President with a power to control the legislation of Congress and paralyze the administration of justice."

To contend that the obligations imposed on the President to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and is entirely inadmissible.

The act required by the law to be done by the Postmaster General is simply to credit S. & S. with the full amount of the award of the Solicitor of the Treasury. This is a precise, definite act, purely ministerial, and about which the Postmaster General has no discretion whatever. This was not an official act in any other sense than being a transaction in the department where the books and accounts were kept, and was an official act in the same sense that an entry in the minutes of the court pursuant to an order of the court is an official act. There is no room for the exercise of discretion, official or otherwise. All that is shut out by the direct and positive command of the law, and the act required to be done is in every just sense a mere ministerial act.

The common law, as it was in force in Maryland when the cession of the part of the state within the District of Columbia was made to the United States, remained in force in the District. The writ of mandamus which issued in this case in the District Court of the District of Columbia must be considered as it was at common law with respect to its object and purpose, and varying only in the form required by the different character of the government of the United States. It is a writ, in England, issuing out of the King's Bench in the name of the King, and is called a prerogative writ, but considered a writ of right, and is directed to some person, corporation, or inferior court, requiring them to do some particular thing therein specified which appertains to their office and which is supposed to be consonant to right and justice, and where there is no other adequate, specific remedy, such a writ and for such a purpose would seem to be peculiarly appropriate to the present case. The right claimed is just and established by positive law, and the duty required to be performed is clear and specific, and there is no other adequate remedy.

The cases of McIntire v. Wood, 7 Cranch 504, and McClung v. Silliman, 6 Wheat.

Page 37 U. S. 526

590, have decided that the circuit courts of the United States in the several states have no power to issue a mandamus against one of the officers of the United States.

The result of the cases of McIntire v. Wood and McCluny v. Silliman clearly is that the authority to issue the writ of mandamus to an officer of the United States commanding him to perform a specific act required by a law of the United States is within the scope of the judicial powers of the United States under the Constitution, but that the whole of that power has not been communicated by law to the circuit courts of the United States in the several states. It is a dormant power, not yet called into action and vested in those courts. And there is nothing growing out of the official character of a party that will exempt him from this writ if the act to be performed is merely ministerial.

It is a sound principle that in every well organized government the judicial powers should be coextensive with the legislative, so far at least as they are to be enforced by judicial proceedings.

There is in the District of Columbia no division of powers between the general and state governments. Congress has the entire control over the district for every purpose of government, and it is reasonable to suppose that in organizing a judicial department in this District, all the judicial power necessary for the purposes of government would be vested in the courts of justice. The circuit court in the District is the highest court of original jurisdiction, and if the power to issue a mandamus in such a case as that before the Court exists in any court, it is vested in that court.

At the date of the act of Congress establishing the government of the District of Columbia, the common law of England was in force in Maryland, and of course remained and continued in force in the part of the District ceded by Maryland to the United States. The power to issue a mandamus in a proper case is a part of the common law, and it has been fully recognized as in practical operation in a case decided in the court of that state.

The power to issue the writ of mandamus is, in England, given to the King's Bench only, as having the general supervising power over all inferior jurisdictions and officers, and is coextensive with judicial power. And the same theory prevails in the state governments of the United States, where the common law is adopted and governs in the administration of justice, and the power of issuing this writ is generally confided to the highest court of original jurisdiction.

There can be no doubt but that in the State of Maryland, a writ of mandamus might be issued to an executive officer commanding him to perform a ministerial act required of him by the laws, and if it would lie in that state, there can be no good reason why it should not lie in the District of Columbia in analogous cases.

The powers of the Supreme Court of the United States and of the circuit courts of the United States to issue writs of mandamus, granted by the 14th section of the Judiciary Act of 1789, is only for the purpose of bringing the case to a final judgment or decree so that it may be reviewed. The mandamus does not direct the inferior court how to proceed, but only that it must proceed, according to its own judgment, to a final determination; otherwise it cannot be reviewed in the appellate court. It is different in the Circuit Court of the District of Columbia, under the adoption of the laws of Maryland, which included the common law.

The power of the circuit Court of the District of Columbia to exercise the jurisdiction to issue a writ of mandamus to a public officer to do an act required of him by law results from the 3d section of the Act of Congress of February 27, 1801,

Page 37 U. S. 527

which declares that the court and the judges thereof shall have all the power by law vested in the circuit courts of the United States. The circuit courts referred to were those established by the Act of February l3, 1801. The repeal of that law fifteen months afterwards, and after the Circuit Court for this District had been organized and had gone into operation under the Act of 27 February, 1901, could not in any manner affect that law any further than was provided by the repealing act.

It was not an uncommon course of legislation in the states at an early day to adopt by reference, British statutes, and this has been the course by legislation in Congress in many instances when state practice and state process has been adopted. And such adoption has always been considered as referring to the law existing at the time of adoption, and no subsequent legislation has ever been supposed to affect it; and such must necessarily be the effect and operation of such adoption.

No court can, in the ordinary administration of justice in common law proceedings, exercise jurisdiction over a party unless he shall voluntarily appear or is found within the jurisdiction of the court so as to be served with process. Such process cannot reach the party beyond the territorial jurisdiction of the court. This is a personal privilege which may be waived by appearance, and if advantage is to be taken of it, it must be by plea or some other mode at an early stage of the cause.

On the twenty-sixty day of May, 1837, William B. Stokes, Richard C. Stockton, Lucius W. Stockton, and Daniel Moore presented a petition to the Circuit Court of the District of Columbia for the County of Washington stating that under contracts duly and legally made by them with the late William T. Barry, then Postmaster General of the United States, and duly authorized by law, they were entitled to certain credits and allowances on their contracts for the transportation of the mail of the United States; that the credits and allowances were made and given to them on their contracts and amounts of money actually paid on such accounts; that sometime in 1835, William T. Barry resigned his situation as Postmaster General and Amos Kendall was appointed to the office; that after he had entered on the duties of his office, he undertook to reexamine the contracts entered into by his predecessor and the credits and allowances made by him, and ordered and directed the allowances and credits to be withdrawn and the petitioners recharged with divers payments they had received.

The petitioners state that they were dissatisfied with these proceedings of Amos Kendall as Postmaster General, and believing he had

Page 37 U. S. 528

exceeded his authority, and being unable to adjust their differences with him, they addressed a memorial to the Congress of the United States. A copy of the memorial was annexed to the petition.

The memorial stated at large all the circumstances which the petitioners considered as affecting their case, the proceedings of the Postmaster General in the matter, and the heavy grievances done to the memorialists by the course adopted by the Postmaster General. They ask such proceedings on the part of Congress as its wisdom and justice may direct.

The petition states that Congress passed an Act which was approved by the President of the United States on 2 July, 1836, which act provided

"That the Solicitor of the Treasury be and he is hereby authorized and directed to settle and adjust the claims of William B. Stokes, Richard C. Stockton, of Maryland, and Lucius W. Stockton, and Daniel Moore of Pennsylvania for extra services performed by them as contractors for carrying the mail under and by virtue of certain contracts therefor alleged to have been made and entered into with them by William T. Barry, late Postmaster General of the United States, and for this purpose to inquire into and determine the equity of the claims of them or any of them for or on account of any contract or additional contract with the said Postmaster General on which their pay may have been suspended by the present Postmaster General, and to make them such allowances therefor as upon a full examination of all the evidence may seem right according to the principles of equity, and that the said Postmaster General be and he is hereby directed to credit such mail contractors with whatever sum or sums of money, if any, the said Solicitor shall so decide to be due to them for or an account of any such service or contract, and the Solicitor is hereby authorized to take testimony, if he shall judge it to be necessary to do so, and that he report to Congress at its next session the law and the facts upon which his decision has been founded, provided the said Solicitor is not authorized to make any allowance for any suspension or withholding of money by the present Postmaster General for allowances or overpayments made by his predecessor on route number thirteen hundred and seventy-one from Philadelphia to Baltimore for carrying the mail in steamboats when it was not so carried by said Stockton and Stockes, but by the steamboat company, nor for any suspension or withholding of money as aforesaid for allowances or overpayments made as aforesaid for carrying an express mail from Baltimore

Page 37 U. S. 529

to York or Lancaster, nor for any suspension or withholding of money as aforesaid for allowances or overpayments made as aforesaid on route number thirteen hundred and ninety-one, from Westminster to McConnerston, as described in the improved bid, nor for any suspension or withholding of money as aforesaid for allowances or overpayments as aforesaid on the route from Baltimore to Wheeling for running a certain daily line to Hagerstown and Wheeling, from the first of September, eighteen hundred and thirty-two to the first of April, eighteen hundred and thirty-three, when the line referred to only run tri-weekly, nor for any suspension or withholding of money as aforesaid for allowances or overpayments, made as aforesaid on the route from Baltimore to Washington under the contract of eighteen hundred and twenty-seven, but nothing in this proviso shall prejudice any application they may make hereafter in reference to these routes, if they shall think it proper to make such application."

The petition states that in pursuance and in execution of this act, Virgil Maxey, being Solicitor of the Treasury, did proceed to examine adjust and settle the said claims, and on 12 November, 1836, did make out and transmit to the said Amos Kendall, Postmaster General, in part, his award and decision upon certain items of said claims so referred to him, and on 23 November, 1836, he communicated to the Postmaster General his decision and award on the residue of the claims of the petitioners.

The decision of the Solicitor of the Treasury of 12 December, 1836, after stating the particular items of account, from which the balances arose, was as follows:

"I therefore, in pursuance of the authority conferred on me by the aforementioned act of Congress, make allowance to said Richard C. Stockton for his said claims up to 1 April, 1835, of the above sum of eighty-three thousand two hundred and seventy-eight dollars."

"I also, by virtue of the same authority, make allowance to said Stockton, for his said claims for extra services, from 1 April to 31 December, 1835, of the said sum of twenty-six thousand eight hundred and sixty-two dollars."

"A claim for interest having been made, I have postponed the consideration of it until the equity of the other claims of the gentlemen

Page 37 U. S. 530

named in the title of the act shall have been inquired into and determined."

On 22 November, 1836, the Solicitor made a final award, which was also communicated by him to the Postmaster General. That award, after setting forth the items of the accounts presented and established in the judgment of the Solicitor of the Treasury against the United States, was:

"I have examined the evidence touching the above claims, and find due to the petitioners or to Richard C. Stockton the following sums: for additional daily mail to Washington, thirty-four thousand two hundred dollars. For compensation for carrying the mail in the spring of 1831 between Baltimore and Philadelphia and for other services connected therewith, less two hundred and ninety-four dollars, the sum of eleven thousand seven hundred and ninety-seven dollars and sixteen cents. Claims for interest, four thousand eight hundred and thirty-six dollars and eighty-nine cents, one thousand six hundred and sixty-four dollars and seventy cents, and three hundred and ninety-two dollars and thirty-four cents."

The petitioners state that under and by virtue of the award of the Solicitor of the Treasury, they became entitled to have the sum of one hundred and sixty-two thousand seven hundred and twenty-seven dollars and five cents carried to their credit, or at least, after allowing some deductions therefrom made by the said Solicitor with their assent, the sum of one hundred and sixty-one thousand five hundred and sixty-three dollars and eighty-nine cents, as the amount of principal and interest due to them by the terms of the award and decision.

"But the said Postmaster General, although fully notified of the premises and after a considerable delay, only so far obeyed and carried into execution the said act of Congress and said award as to direct and cause to be carried to the credit of the petitioners the sum of one hundred and twenty-two thousand one hundred and one dollars and forty-six cents, which said last mentioned sum of money has been accordingly paid or credited to the petitioners, and he has from that time, and does still refuse, omit, and neglect, notwithstanding the provisions of said act of Congress, and the said award and decision of said Solicitor of the Treasury, so made, communicated and reported, as aforesaid, to pay, or credit to the petitioners the residue of the said sum so awarded, being the sum of thirty-nine thousand four hundred and sixty-two dollars and forty-three cents, or to credit or

Page 37 U. S. 531

pay to the petitioners or either of them the interest upon the said balance so unjustly and illegally withheld."

The petition states that after the refusal, omission, or neglect of Amos Kendall to execute his duty by obeying the act of Congress in passing the amount awarded to his credit, the petitioners communicated the facts of their case to the President of the United States, requesting him to cause the said act of Congress to be executed, who thereupon transmitted the same to Amos Kendall, the Postmaster General, and having received a reply to the same, stating why he had thus refused to comply with the award and suggesting an application to Congress for further legislation. The President, in December, 1836, transmitted this reply to the petitioners, and in his communication says:

"It appearing that there is a difference of opinion between the Solicitor and the Postmaster General, upon the extent of the reference under the law to the Solicitor, the Postmaster General having yielded to what he believes to be all that was submitted by the law to the Solicitor's decision, and paid the same. But, Congress being now in session, and the best expounder of the intent and meaning of its own law, I think it right and proper under existing circumstances to refer it to that body for its decision. I deem this course proper as the difference in opinion about the extent of the submission, under the law, arises between the head of the Post Office Department and the Solicitor of the Treasury, and as it appears the Solicitor has reversed in part his decision and award."

The petitioners, in consequence of this correspondence, presented to Congress a memorial which in the Senate was referred to the committee on the judiciary.

The petition refers to the reports of the Judiciary Committee of the Senate of January 20, 1837, and February 17, 1837, and to the correspondence between the Postmaster General and the chairman of the committee, copies of which are annexed to the petition. The concluding part of the report of the judiciary committee of January 20, 1837, was as follows:

"That Congress intended the award of the Solicitor to be final is apparent from the direction of the act"

"That the Postmaster General be and he is hereby directed to credit such mail contractors with whatever sum or sums of money, if any, the said Solicitor shall so decide to be due to them. . . . If Congress had intended to revise the decision of the Solicitor, the Postmaster General would not have been directed to make the payment without the intervention or further

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action of Congress. Unless it appeared, which is not suggested by anyone, that some cause exists which would vitiate or set aside the award between private parties before a judicial tribunal, the committee cannot recommend the interference of Congress to set aside this award, and more especially as it has been made by a high officer selected by the government and the petitioners have been subjected to the trouble and expense of investigating their claims before a tribunal created by Congress itself."

"It appears that since the award was made by the Solicitor, the Postmaster General has paid to the petitioners the sum of one hundred and twenty thousand nine hundred and thirty-eight dollars and thirty cents, leaving the balance of forty thousand six hundred and twenty-five dollars and fifty-nine cents unpaid of the sums awarded in favor of the petitioners. From the view which the committee has taken, the conclusion at which it has arrived is that the whole amount decided to be due and owing to the petitioners by the Solicitor of the Treasury ought to be paid to them out of the funds of the Post Office Department according to the directions of the act entitled 'An act for the relief of William B. Stokes, Richard C. Stockton, Lucius W. Stockton, and Daniel Moore,' and that no further action of Congress is necessary; therefore the committee recommend the adoption of the following resolution: "

"Resolved that the Postmaster General is fully warranted in paying and ought to pay to William B. Stokes and others, respectively, the full amount of the award of the Solicitor of the Treasury."

The report of February 17, 1837, on the message of the President of the United States of 15 February, 1837, with the accompanying documents in relation to the claims of Stockton and Stokes and others, contain the following:

"The committee has considered the documents communicated, and cannot discover any cause for changing its opinion upon any of the principles advanced in its former report upon this subject, nor the correctness of its application to this case. It therefore recommends the adoption of the resolution heretofore reported by the committee."

The petition to the court proceeds to state that the principal ground of the refusal, neglect, and omission of the Postmaster General to execute and obey the act of Congress and to give the petitioners credit for the full amount of the award of the Solicitor of the Treasury was, as represented by him, that the said Solicitor had transcended

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the authority created and conferred on him by the act in so awarding and deciding, whereas the contrary is the fact, and the Solicitor, on being apprised that a doubt existed as to the extent of his authority, he did submit the said question to the Attorney General of the United States to obtain his opinion. The opinion of the Attorney General confirmed the construction of the law given by the Solicitor of the Treasury.

The petition proceeds to state that the

"petitioners conceiving and believing that they are and have been entitled to the whole sum so awarded by the said Solicitor passed to their credit on the books of the Post Office Department, and to receive the amount which, after the said entry, should appear justly due to them, with legal interest upon the balance, have applied to the said Amos Kendall, Postmaster General, as aforesaid, to have the said credits, so entered, and the said moneys so paid, which he has continually refused, and still refuses and neglects to do, and the Congress of the United States will not pass any other or further law, as it is believed, merely because they have already passed one sufficient to meet the case, so that the only means of obtaining the money which is justly due to the petitioners is by application to your Honorable Court."

"Wherefore, your petitioners do respectfully pray that your Honors, the premises considered, will award the United States writ of mandamus to be directed to the said Amos Kendall, Postmaster General of the United States, commanding him:"

"1. That he shall fully comply with, obey, and execute, the aforesaid Act of Congress of July 2, 1836, by crediting your petitioners with the full and entire sum so awarded, as aforesaid, in their favor by the Solicitor of the Treasury, as aforesaid, in conformity with said award and decision."

"2. That he shall pay to your petitioners the full amount so awarded with interest thereon, deducting only the amount which shall be justly charged or chargeable to your memorialists against the same."

On 26 May, 1837, the District Court of the County of Washington made a rule in the case on the motion of the relators by their counsel:

"That the said Amos Kendall, Postmaster General of the United States, show cause on Thursday, the first of June next, why the said writ of mandamus should not issue as prayed by the said memorialists, and that a copy of this order be served on the said Amos Kendall, Postmaster General, as aforesaid. "

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A copy of the rule was served as directed, and was so certified by the Marshal of the District of Columbia. Afterwards, on 7 June, 1837, on the motion of the relators by their counsel, the court ordered a mandamus nisi to issue directed to the Postmaster General, which writ was issued on the same day.

The mandamus nisi, after stating the proceedings which had taken place in the case, proceeded as follows:

"Therefore you are hereby commanded and enjoined that immediately after the receipt of this writ and without delay, you do fully comply with, obey, and execute on your part the aforesaid Act of Congress of 2 July, 1836, by crediting said mail contractors with the full and entire sum so awarded and decided as aforesaid to be due to them by the Solicitor of the Treasury according to the true intent and meaning of the said award and decision, so that complaint be not again made to the said circuit court, and that you certify perfect obedience to and due execution of this writ to the said circuit court on Saturday the tenth day of June instant, or that you do at ten o'clock of that day show cause to the said court why you have not so done as commanded."

On 10 June, 1837, the relators, by their counsel, and Amos Kendall, by his counsel, appeared in court, and further time was given, on motion, to Amos Kendall to file his answer.

On 24 June, 1837, the answer of the Postmaster General was filed.

The answer contained the following causes "for declining obedience to the order of the court," with a full argument upon each of them:

"First. It is doubted whether, under the Constitution of the United States, it confers on the judiciary department of the government authority to control the Executive Department in the exercise of its functions of whatsoever character."

"Second. If according to the Constitution the Circuit Court for the District of Columbia might be clothed by law to issue a mandamus in such a case, no such power has been conferred upon it by the act of Congress."

"Third. If, by the Constitution, Congress can clothe the courts with authority to issue writs of mandamus against executive officers as such, and if it has vested the general power in this Court by law, this is not a case in which that power can be lawfully exercised. "

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"Fourth. The court has ordered the Postmaster General to perform a legal impossibility."

To this answer of the Postmaster General, the opinion of the Attorney General of the United States on the whole of the case, and sustaining the views of the Postmaster General, was annexed

On 13 July, 1837, the circuit court ordered a peremptory mandamus, to be directed to the Postmaster General to be issued. The Postmaster General prosecuted this writ of error.

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MR. JUSTICE THOMPSON delivered the opinion of the Court:

This case was brought before the Court below by petition setting out certain contracts made between the relators and the late Postmaster General upon which they claimed certain credits and allowances upon their contracts for the transportation of the mail.

"That credits and allowances were duly made by the late Postmaster General. That the present Postmaster General when he came into office, reexamined the contracts entered into with his predecessor and the allowances made by him and the credits and payments which had been made, and directed that the allowances and credits should be withdrawn and the relators recharged with divers payments they had received. That the relators presented a memorial to Congress on the subject, upon which a law was passed on 21 July, 1836, for their relief, by which the Solicitor of the Treasury was authorized and directed to settle and adjust the claims of the relators

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for extra services performed by them, to inquire into and determine the equity of such claims, and to make the relators such allowance therefor as upon full examination of all the evidence may seem right according to the principles of equity. And that the Postmaster General be and he is hereby directed to credit the relators with whatever sum or sums of money, if any, the Solicitor shall so decide to be due to them for and on account of any such service or contract."

And the petition further sets out, that the Solicitor, Virgil Maxcy, assumed upon himself the performance of the duty and authority created and conferred upon him by the law, and did make out and communicate his decision and award to the Postmaster General, by which award and decision the relators were allowed one hundred and sixty-one thousand five hundred and sixty-three dollars and eighty-nine cents. That the Postmaster General, on being notified of the award, only so far obeyed and carried into execution the act of Congress as to direct and cause to be carried to the credit of the relators the sum of one hundred and twenty-two thousand one hundred and two dollars and forty-six cents. But that he has and still does refuse and neglect to credit the relators with the residue of the sum so awarded by the Solicitor, amounting to thirty-nine thousand four hundred and sixty-two dollars and forty-three cents. And the petition prayed the court to award a mandamus directed to the Postmaster General commanding him fully to comply with, obey. and execute the said act of Congress by crediting the relators with the full and entire sum awarded in their favor by the Solicitor of the Treasury.

Such proceedings were afterwards had in the case that a peremptory mandamus was ordered commanding the said Amos Kendall, Postmaster General, forthwith to credit the relators with the full amount awarded and decided by the Solicitor of the Treasury to be due to the relators.

The questions arising upon this case may be considered under two general inquiries:

1. Does the record present a proper case for a mandamus, and if so then

2. Had the Circuit Court of this District jurisdiction of the case and authority to issue the writ.

Under the first head of inquiry it has been considered by the counsel on the part of the Postmaster General that this is a proceeding against him to enforce the performance of an official duty. And

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the proceeding has been treated as an infringement upon the Executive Department of the government, which has led to a very extended range of argument on the independence and duties of that department, but which, according to the view taken by the Court of the case, is entirely misapplied. We do not think the proceeding in this case interferes in any respect whatever with the rights or duties of the executive or that it involves any conflict of powers between the executive and judicial departments of the government. The mandamus does not seek to direct or control the Postmaster General in the discharge of any official duty partaking in any respect of an executive character, but to enforce the performance of a mere ministerial act which neither he nor the President had any authority to deny or control.

We shall not, therefore, enter into any particular examination of the line to be drawn between the powers of the executive and judicial departments of the government. The theory of the Constitution undoubtedly is that the great powers of the government are divided into separate departments, and so far as these powers are derived from the Constitution, the departments may be regarded as independent of each other. But beyond that, all are subject to regulations by law touching the discharge of the duties required to be performed.

The executive power is vested in a President, and as far as his powers are derived from the Constitution, he is beyond the reach of any other department except in the mode prescribed by the Constitution through the impeaching power. But it by no means follows that every officer in every branch of that department is under the exclusive direction of the President. Such a principle, we apprehend, is not and certainly cannot be claimed by the President.

There are certain political duties imposed upon many officers in the Executive Department the discharge of which is under the direction of the President. But it would be an alarming doctrine that Congress cannot impose upon any executive officer any duty they may think proper which is not repugnant to any rights secured and protected by the Constitution, and in such cases the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case where the duty enjoined is of a mere ministerial character.

Let us proceed, then, to an examination of the act required by the mandamus to be performed by the Postmaster General, and his obligation to perform, or his right to resist the performance, must

Page 37 U. S. 611

depend upon the Act of Congress of 2 July, 1836. This is a special act for the relief of the relators, Stockton & Stokes, and was passed, as appears on its face, to adjust and settle certain claims which they had for extra services, as contractors for carrying the mail. These claims were, of course, upon the United States through the Postmaster General. The real parties to the dispute were therefore the relators and the United States. The United States could not, of course, be sued or the claims in any way enforced against the United States without its consent obtained through an act of Congress, by which it consented to submit these claims to the Solicitor of the Treasury to inquire into and determine the equity of the claims and to make such allowance therefor as upon a full examination of all the evidence, should seem right according to the principles of equity. And the act directs the Postmaster General to credit the relators with whatever sum, if any, the Solicitor shall decide to be due to them for or on account of any such service or contract.

The Solicitor did examine and decide that there was due to the relators one hundred and sixty-one thousand five hundred and sixty-three dollars and ninety-three cents; of this sum, the Postmaster General credited them with one hundred and twenty-two thousand one hundred and one dollars and forty-six cents, leaving due the sum of thirty-nine thousand for hundred and seventy-two dollars and forty-seven cents which he refused to carry to their credit. And the object of the mandamus was to compel him to give credit for this balance.

Under this law, the Postmaster General is vested with no discretion or control over the decisions of the Solicitor, nor is any appeal or review of that decision provided for by the act. The terms of the submission was a matter resting entirely in the discretion of Congress, and if it thought proper to vest such a power in anyone, and especially as the arbitrator was an officer of the government, it did not rest with the Postmaster General to control Congress or the Solicitor in that affair. It is unnecessary to say how far Congress might have interfered by legislation after the report of the Solicitor. But if there was no fraud or misconduct in the arbitrator -- of which none is pretended or suggested -- it may well be questioned whether the relators had not acquired such a vested right as to be beyond the power of Congress to deprive them of it.

But so far from Congress' attempting to deprive the relators of the

Page 37 U. S. 612

benefit of the award, it may be considered as impliedly sanctioning and approving of the decisions of the Solicitor. It is at least so to be considered by one branch of the legislature. After the Postmaster General had refused to credit the relators with the full amount of the award of the Solicitor, they, under the advice of the President, presented a memorial to Congress setting out the report of the Solicitor and the refusal of the Postmaster General to give them credit for the amount of the award and praying Congress to provide such remedy for the denial of their rights as in its wisdom might seem right and proper.

Upon this memorial, the judiciary committee of the Senate made a report in which it said

"that Congress intended the award of the Solicitor to be final is apparent from the direction of the act that the Postmaster General be, and he is hereby directed to credit such mail contractors with whatever sum the Solicitor shall decide to be due to them."

If Congress had intended to revise the decision of the Solicitor, the Postmaster General would not have been directed to make the payment without the intervention or further action of Congress. That unless it appeared, which is not suggested by anyone, that some cause exists which would vitiate or set aside the award between private parties before a judicial tribunal, the committee could not recommend the interference of Congress to set aside this award, and more especially as it has been made by a high officer, selected by the government, and the committee concluded its report with a resolution

"That the Postmaster General is fully warranted in paying and ought to pay to William B. Stokes and others the full amount of the award of the Solicitor of the Treasury,"

which resolution was unanimously adopted by the Senate. After such a decided expression of the opinion of one branch of Congress, it would not have been necessary to apply to the other. Even if the relators were bound to make any application to Congress for relief, which they clearly were not, their right to the full amount of the credit, according to the report of the Solicitor, having been ascertained and fixed by law, the enforcement of that right falls properly within judicial cognizance.

It was urged at the bar that the Postmaster General was alone subject to the direction and control of the President, with respect to the execution of the duty imposed upon him by this law, and this right of the President is claimed as growing out of the obligation imposed upon him by the Constitution to take care that the laws be

Page 37 U. S. 613

faithfully executed. This is a doctrine that cannot receive the sanction of this Court. It would be vesting in the President a dispensing power which has no countenance for its support in any part of the Constitution, and is asserting a principle which, if carried out in its results to all cases falling within it, would be clothing the President with a power entirely to control the legislation of Congress and paralyze the administration of justice.

To contend that the obligation imposed on the President to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and entirely inadmissible. But although the argument necessarily leads to such a result, we do not perceive from the case that any such power has been claimed by the President. But on the contrary, it is fairly to be inferred that such power was disclaimed. He did not forbid or advise the Postmaster General to abstain from executing the law and giving the credit thereby required, but submitted the matter in a message to Congress. And the same Judiciary Committee of the Senate reports thereupon, in which it says

"The President, in his message, expresses no opinion in relation to the subject under consideration, nor does he recommend the adoption of any measure whatever. He communicates the report of the Postmaster General, the review of that report by the Solicitor of the Treasury, and the remarks of the Postmaster General in answer thereto, together with such vouchers as are referred to by them respectively. That the committee has considered the documents communicated and cannot discover any cause for changing its opinion upon any of the principles advanced in their former report upon this subject, nor the correctness of their application to this case, and recommends the adoption of the resolution before reported."

Thus, upon a second and full consideration of the subject, after hearing and examining the objections of the Postmaster General to the award of the Solicitor, the committee reports that the Postmaster General ought to pay to the relators the amount of the award.

The right of the relators to the benefit of the award ought now to be considered as irreversibly established, and the question is whether they have any, and what remedy?

The act required by the law to be done by the Postmaster General is simply to credit the relators with the full amount of the award of the Solicitor. This is a precise, definite act, purely ministerial and about which the Postmaster General had no discretion whatever.

Page 37 U. S. 614

The law upon its face shows the existence of accounts between the relators and the Post Office Department. No money was required to be paid, and none could have been drawn out of the Treasury without further legislative provision if this credit should overbalance the debit standing against the relators. But this was a matter with which the Postmaster General had no concern. He was not called upon to furnish the means of paying such balance, if any should be found. He was simply required to give the credit. This was not an official act in any other sense than being a transaction in the department where the books and accounts were kept, and was an official act in the same sense that an entry in the minutes of a court, pursuant to an order of the court, is an official act. There is no room for the exercise of any discretion, official or otherwise; all that is shut out by the direct and positive command of the law, and the act required to be done is in every just sense a mere ministerial act.

And in this view of the case the question arises is the remedy by mandamus the fit and appropriate remedy?

The common law, as it was in force in Maryland when the cession was made, remained in force in this District. We must therefore consider this writ as it was understood at the common law with respect to its object and purpose, and varying only in the form required by the different character of our government. It is a writ, in England, issuing out of the King's Bench in the name of the King, and is called a prerogative writ, but considered a writ of right, and is directed to some person, corporation, or inferior court requiring them to do some particular thing therein specified which appertains to their office or duty and which is supposed to be consonant to right and justice and where there is no other adequate specific remedy. Such a writ and for such a purpose would seem to be peculiarly appropriate to the present case. The right claimed is just and established by positive law, the duty required to be performed is clear and specific, and there is no other adequate remedy.

The remedies suggested at the bar were, then, an application to Congress, removal of the Postmaster General from office, and an action against him for damages.

The first has been tried and failed. The second might not afford any certain relief, for his successors might withhold the credit in the same manner, and besides, such extraordinary measures are not the remedies spoken of in the law which will supersede the right of resorting to a mandamus, and it is seldom that a private action at

Page 37 U. S. 615

law will afford an adequate remedy. If the denial of the right be considered as a continuing injury, to be redressed by a series of successive actions as long as the right is denied, it would avail nothing, and never furnish a complete remedy. Or if the whole amount of the award claimed should be considered the measure of damages, it might and generally would be an inadequate remedy where the damages were large. The language of this Court in the case of Osborn v. United States Bank, 9 Wheat. 844, is that the remedy by action in such cases would have nothing real in it. It would be a remedy in name only, and not in substance, especially where the amount of damages is beyond the capacity of a party to pay.

That the proceeding on a mandamus is a "case" within the meaning of the act of Congress has been too often recognized in this Court to require any particular notice. It is an action or suit brought in a court of justice, asserting a right, and is prosecuted according to the forms of judicial proceedings.

The next inquiry is whether the court below had jurisdiction of the case, and power to issue the mandamus.

This objection rests upon the decision of this Court in the cases of McIntire v. Wood, 7 Cranch 504, and,McClung v. Silliman, 6 Wheat. 590. It is admitted that those cases have decided that the circuit courts of the United States in the several states have not authority to issue a mandamus against an officer of the United States. And unless the circuit court in the District of Columbia has larger powers in this respect, it had not authority to issue a mandamus in the present case.

It becomes necessary therefore to examine with attention the ground on which those cases rested. And it is to be observed that although the question came up under the names of different parties, it related to the same claim in both, and indeed it was before the Court at another time, which is reported in 15 U. S. 2 Wheat. 369.

The question in the first case originated in the Circuit Court of the United States in Ohio, and came to this Court on a certificate of division of opinion. The second time it was an original application to this Court for the mandamus. The third time the application was to the state court, and was brought here by writ of error under the twenty-fifth section of the Judiciary Act.

By the first report of the case in 7 Cranch, it appears that the application to the circuit court was for a mandamus to the register of a land office in Ohio, commanding him to issue a final certificate of

Page 37 U. S. 616

purchase for certain lands in that state, and the court, in giving its judgment, said the power of the circuit courts to issue the writ of mandamus is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction. But it is added if the eleventh section of the Judiciary Act had covered the whole ground of the Constitution, there would be much ground for exercising this power in many cases wherein some ministerial act is necessary to the completion of an individual right arising under the laws of the United States, and then the fourteenth section of the act would sanction the issuing of the writ for such a purpose. But that, although the judicial power under the Constitution extends to all cases arising under the laws of the United States, the legislature has not thought proper to delegate that power to the circuit courts except in certain specified cases. The decision, then, turned exclusively upon the point that Congress had not delegated to the circuit courts all the judicial power that the Constitution would authorize, and admitting what certainly cannot be denied, that the Constitution is broad enough to warrant the vesting of such power in the circuit courts, and if in those courts, it may be vested in any other inferior courts, for the judicial power, says the Constitution, shall be vested in one Supreme Court and such inferior courts as the Congress may from time to time ordain and establish.

It is not designated by the Court in the case of McIntire v. Wood in what respect there is a want of delegation to the circuit courts of the power necessary to take cognizance of such a case and issue the writ. It is said, however, that the power is confined to certain specified cases, among which is not to be found that of issuing a mandamus in such a case as was then before the court. It is unnecessary to enter into a particular examination of the limitation upon the power embraced in this eleventh section of the Judiciary Act. There is manifestly some limitation. The circuit courts have certainly not jurisdiction of all suits or cases of a civil nature at common law and in equity. They are not courts of general jurisdiction in all such cases, and an averment is necessary bringing the case within one of the specified classes. But the obvious inference from the case of McIntire v. Wood is that under the Constitution, the power to issue a mandamus to an executive officer of the United States may be vested in the inferior courts of the United States, and that it is the appropriate writ, and proper to be employed, agreeably to the principles and usages of law, to compel the performance of a ministerial

Page 37 U. S. 617

act, necessary to the completion of an individual right arising under the laws of the United States. And the case now before the Court is precisely one of that description. And if the Circuit Court of this District has the power to issue it, all objection arising either from the character of the party, as an officer in the Executive Department of the government, or from the nature of the act commanded to be done, must be abandoned.

An application for a mandamus founded on the same claim was made to this Court under the name of McCluny v. Silliman, as reported in 2 Wheat. 369, and the application was refused on the authority of Marbury v. Madison, 1 Cranch 137, that this Court had no original jurisdiction in such cases.

The case came up again under the name of McCluny v. Silliman, 6 Wheat. 598, on a writ of error to a state court under the 25th section of the Judiciary Act, and the only question directly before the Court was whether a state court had authority to issue a mandamus to an officer of the United States, and this power was denied. MR. JUSTICE JOHNSON, who gave the opinion and who had given the opinion of the Court in McIntire v. Wood, alluded to that case and gave some account of the application in that case and the grounds upon which the Court decided it, and observed that the mandamus asked for in that case was to perfect the same claim, and in point of fact was between the same parties, and in answer to what had been urged at the bar with respect to the character of the parties, said that case did not turn upon that point, but that both the argument of counsel and the decision of the Court show that the power to issue the mandamus in that case was contended for as incident to the judicial power of the United States, and that the reply to the argument was that although it might be admitted that this controlling power over its ministerial officers would follow from vesting in its courts the whole judicial power of the United States, the argument fails here since the legislature has only made a partial delegation of its judicial powers to the circuit courts. That all cases arising under the laws of the United States are not per se among the cases comprised within the jurisdiction of the circuit courts under the provisions of the eleventh section.

It is, he says, not easy to conceive on what legal ground a state tribunal can in any instance exercise the power of issuing a mandamus to a register of a land office. The United States has not thought proper to delegate that power to their own courts. But

Page 37 U. S. 618

when in the case of Marbury v. Madison and McIntire v. Wood this Court decided against the exercise of that power, the idea never presented itself to anyone that it was not within the scope of the judicial power of the United States, although not vested by law in the courts of the general government. And no one will contend that it was among the reserved powers of the states because not communicated by law to the courts of the United States.

The result of these cases, then, clearly is that the authority to issue the writ of mandamus to an officer of the United States commanding him to perform a specific act required by a law of the United States is within the scope of the judicial powers of the United States under the Constitution. But that the whole of that power has not been communicated by law to the circuit courts -- or in other words that it was then a dormant power not yet called into action and vested in those courts -- and that there is nothing growing out of the official character of the party that will exempt him from this writ if the act to be performed is purely ministerial.

It must be admitted, under the doctrine of this Court in the cases referred to, that unless the Circuit Court of this District is vested with broader powers and jurisdiction in this respect than is vested in the circuit courts of the United States in the several states, then the mandamus in the present case was issued without authority.

But in considering this question it must be borne in mind that the only ground upon which the court placed its decision was that the constitutional judicial powers on this subject had not been imparted to those courts.

In the first place, the case of Wheelwright v. Columbia Insurance Co., 7 Wheat. 534, furnishes a very strong, if not conclusive, inference that this Court did not consider the Circuit Court of this District as standing on the same footing with the circuit courts in the states, and impliedly admitting that it had power to issue a mandamus in a case analogous to the present. A mandamus in that case had been issued by the Circuit Court of this District to compel the admission of the defendants in error to the offices of directors in the Columbian Insurance Company, and the case was brought before this Court by writ of error, and the Court decided that a writ of error would lie, and directed affidavits to be produced as to the value of the matter in controversy. But it not appearing that it amounted to one thousand dollars, the sum required to give this Court appellate jurisdiction from the final judgments or decrees of

Page 37 U. S. 619

the Circuit Court of this District, the writ of error was afterwards quashed.

It would seem to be a reasonable if not a necessary conclusion that the want of a sufficient value of the matter in controversy was the sole ground upon which the writ of error was quashed or dismissed. If it had been on the ground that the court below had not jurisdiction in the case, it can hardly be believed that the Court would have directed affidavits to be produced of the value of the matter in controversy. This would have been an act perfectly nugatory and entirely unavailable if the matter in controversy had been shown to be above the value of one thousand dollars. If the want of jurisdiction in the circuit court had been the ground on which the writ of error was quashed, the same course would have been pursued as was done in the case of Custis v. Georgetown & Alexandria Turnpike Co., 6 Cranch 233, where the writ of error was quashed on the ground that the court below had not cognizance of the matter.

But let us examine the Act of Congress of 27 of February, 1801, concerning the District of Columbia, and by which the circuit court is organized, and its powers and jurisdiction pointed out. And it is proper, preliminarily, to remark that under the Constitution of the United States and the cessions made by the States of Virginia and Maryland, the exercise of exclusive legislation in all cases whatsoever is given to Congress. And it is a sound principle that in every well organized government the judicial power should be coextensive with the legislative, so far at least as private rights are to be enforced by judicial proceedings. There is in this District no division of powers between the general and state governments. Congress has the entire control over the District for every purpose of government, and it is reasonable to suppose that in organizing a judicial department here, all judicial power necessary for the purposes of government would be vested in the courts of justice. The circuit court here is the highest court of original jurisdiction, and if the power to issue a mandamus in a case like the present exists in any court, it is vested in that court.

Keeping this consideration in view, let us look at the act of Congress.

The first section declares that the laws of the State of Maryland as they now exist shall be and continue in force in that part of the District which was ceded by that state to the United States, which is

Page 37 U. S. 620

the part lying on this side the Potomac, where the court was sitting when the mandamus was issued. It was admitted on the argument that at the date of this act, the common law of England was in force in Maryland, and of course it remained and continued in force in this part of the District, and that the power to issue a mandamus in a proper case is a branch of the common law cannot be doubted, and has been fully recognized as in practical operation in that state in the case of Runkle v. Winemiller, 4 Harris & McHenry 448. That case came before the court on a motion to show cause why a writ of mandamus should not issue, commanding the defendants to restore the Rev. William Runkel into the place and functions of minister of a certain congregation. The court entertained the motion, and afterwards issued a peremptory mandamus. And in the opinion delivered by the court on the motion, reference is made to the English doctrine on the subject of mandamus, and the court said that it is a prerogative writ, and grantable when the public justice of the state is concerned, and commands the execution of an act where otherwise justice would be obstructed. 3 Bac.Ab. 527. It is denominated a prerogative writ because, the King being the fountain of justice, it is interposed by his authority transferred to the Court of King's Bench, to prevent disorder from a failure of justice where the law has established no specific remedy and where in justice and good government there ought to be one. 3 Burr 1267. It is a writ of right, and lies where there is a right to execute an office, perform a service, or exercise a franchise, and a person is kept out of possession and dispossessed of such right and has no other specific legal remedy. 3 Burr 1266.

These and other cases where a mandamus has been considered in England as a fit and appropriate remedy are referred to by the general court, and it is then added that the position that this Court is invested with similar powers is generally admitted, and the decisions have invariably conformed to it, from whence, said the court, the inference is plainly deducible that this Court may, and of right ought, for the sake of justice, to interpose in a summary way to supply a remedy where, for the want of a specific one, there would otherwise be a failure of justice.

The theory of the British government and of the common law is that the writ of mandamus is a prerogative writ, and is sometimes called one of the flowers of the Crown, and is therefore confided only to the King's Bench, where the King, at one period of

Page 37 U. S. 621

the judicial history of that country, is said to have sat in person, and is presumed still to sit. And the power to issue this writ is given to the King's Bench only, as having the general supervising power over all inferior jurisdictions and officers, and is coextensive with judicial sovereignty. And the same theory prevails in our state governments, where the common law is adopted, and governs in the administration of justice, and the power of issuing this writ is generally confided to the highest court of original jurisdiction. But it cannot be denied but this common law principle may be modified by the legislature in any manner that may be deemed proper and expedient. No doubt the British Parliament might authorize the court of common pleas to issue this writ, or that the legislature of the states where this doctrine prevails might give the power to issue the writ to any judicial tribunal in the state according to its pleasure, and in some of the states this power is vested in other judicial tribunals than the highest court of original jurisdiction. This is done in the State of Maryland, subsequent however to 27f February, 1801. There can be no doubt but that in the State of Maryland a writ of mandamus might be issued to an executive officer commanding him to perform a ministerial act required of him by law, and if it would lie in that state, there can be no good reason why it should not lie in this District in analogous cases. But the writ of mandamus, as it is used in the courts of the United States other than the Circuit Court of this District cannot in any just sense be said to be a prerogative writ according to the principles of the common law.

The common law has not been adopted by the United States as a system in the states generally, as has been done with respect to this District. To consider the writ of mandamus, in use here as it is in England, the issuing of it should be confined to this Court, as it is there to the King's Bench. But under the Constitution, the power to issue this as an original writ in the general sense of the common law cannot be given to this Court, according to the decision in Marbury v. Madison.

Under the Judiciary Act, the power to issue this writ and the purposes for which it may be issued in the courts of the United States other than in this District, is given by the fourteenth section of the act under the general delegation of power

"to issue all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the

Page 37 U. S. 622

principles and usages of law."

And it is under this power that this Court issues the writ to the circuit courts to compel them to proceed to a final judgment or decree in a cause in order that we may exercise the jurisdiction of review given by the law, and the same power is exercised by the circuit courts over the district courts, where a writ of error or appeal lies to the circuit court. But this power is not exercised, as in England, by the King's Bench, as having a general supervising power over inferior courts, but only for the purpose of bringing the case to a final judgment or decree so that it may be reviewed. The mandamus does not direct the inferior court how to proceed, but only that it must proceed, according to its own judgment, to a final determination; otherwise it cannot be reviewed in the appellate court. So that it is in a special modified manner in which the writ of mandamus is to be used in this Court and in the circuit courts in the states; and does not stand on the same footing, as in this District, under the general adoption of the laws of Maryland, which included the common law, as altered or modified on 27 February, 1801.

Thus far, the power of the circuit court to issue the writ of mandamus has been considered as derived under the first section of the act of 27 February, 1801. But the third and fifth sections are to be taken into consideration in deciding this question. The third section, so far as it relates to the present inquiry, declares:

"That there shall be a court in this District which shall be called the Circuit Court of the District of Columbia, and the said court and the judges thereof shall have all the powers by law vested in the circuit courts and the judges of the circuit courts of the United States."

And the fifth section declares:

"That the said court shall have cognizance of all cases in law and equity between parties both or either of which shall be resident or be found within the District."

Some criticisms have been made at the bar between the use of the terms "power" and "cognizance" as employed in those sections. It is not perceived how such distinction, if any exists, can affect the construction of this law. That there is a distinction in some respects cannot be doubted, and generally speaking the word "power" is used in reference to the means employed in carrying jurisdiction into execution. But it may well be doubted whether any marked distinction is observed and kept up in our laws so as in any measure to affect the construction of those laws. Power must include jurisdiction, which is generally used in reference to the exercise of

Page 37 U. S. 623

that power in courts of justice. But power as used in the Constitution would seem to embrace both.

Thus all legislative power shall be vested in Congress. The executive power shall be vested in a President. The judicial power shall be vested in one Supreme Court and in such inferior courts as Congress shall from time to time ordain and establish, and this judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority &c. This power must certainly embrace "jurisdiction" so far as that term is applicable to the exercise of legislative or executive power. And as relates to judicial power, the term jurisdiction is not used until the distribution of those powers among the several courts is pointed out and defined.

There is no such distinction in the two sections of the law in the use of the terms "power" and "jurisdiction" as to make it necessary to consider them separately. If there is any distinction, the two sections, when taken together, embrace them both. The third gives the power, and the fifth gives the jurisdiction on the cases in which that power is to be exercised. By the fifth section, the Court has cognizance of all actions or suits of a civil nature at common law or in equity in which the United States shall be plaintiff or complainant, and also of all cases in law and equity between parties both or either of which shall be resident or be found within the District. This latter limitation can only affect the exercise of the jurisdiction, and cannot limit the subject matter thereof. No court can, in the ordinary administration of justice, in common law proceedings, exercise jurisdiction over a party unless he shall voluntarily appear or is found within the jurisdiction of the court so as to be served with process. Such process cannot reach the party beyond the territorial jurisdiction of the court. And besides, this is a personal privilege which may be waived by appearance, and if advantage is to be taken of it, it must be by plea or some other mode at an early stage in the cause. No such objection appears to have been made to the jurisdiction of the court in the present case. There was no want of jurisdiction, then, as to the person, and as to the subject matter of jurisdiction, it extends, according to the language of the act of Congress, to all cases in law and equity. This, of course, means cases of judicial cognizance.

That proceedings on an application to a court of justice for a mandamus are judicial proceedings cannot admit of

Page 37 U. S. 624

a doubt, and that this is a case in law is equally clear. It is the prosecution of a suit to enforce a right secured by a special act of Congress requiring of the Postmaster General the performance of a precise, definite, and specific act plainly enjoined by the law. It cannot be denied but that Congress had the power to command that act to be done, and the power to enforce the performance of the act must rest somewhere or it will present a case which has often been said to involve a monstrous absurdity in a well organized government, that there should be no remedy, although a clear and undeniable right should be shown to exist. And if the remedy cannot be applied by the Circuit Court of this District, it exists nowhere. But by the express terms of this act, the jurisdiction of this circuit court extends to all cases in law, &c. No more general language could have been used. An attempt at specification would have weakened the force and extent of the general words -- "all cases." Here, then, is the delegation to this circuit court of the whole judicial power in this District, and in the very language of the Constitution, which declares that the judicial power shall extend to all cases in law and equity arising under the laws of the United States, &c., and supplies what was said by this Court in the cases of McIntire v. Wood and in McCluny v. Silliman to be wanting, viz., that the whole judicial power had not been delegated to the circuit courts in the states, and which is expressed in the strong language of the court that the idea never presented itself to anyone that it was not within the scope of the judicial powers of the United States, although not vested by law in the courts of the general government.

And the power in the court below to exercise this jurisdiction, we think, results irresistibly from the third section of the Act of 27 February, 1801, which declares that the said court and the judges thereof shall have all the powers by law vested in the circuit courts and the judges of the circuit courts of the United States. The question here is what circuit courts are referred to. By the Act of 13 February, 1801, the circuit courts established under the Judiciary Act of 1789 were abolished, and no other circuit courts were in existence except those established by the act of 13 February, 1801. It was admitted by the Attorney General on the argument that if the language of the law had been all the powers now vested in the circuit courts, &c., reference would have been made to the Act of 13 February, 1801, and the courts thereby established. We think that would not have varied the construction of the act.

Page 37 U. S. 625

The reference is to the powers by law vested in the circuit courts. The question necessarily arises, what law? The question admits of no other answer than that it must be some existing law by which powers are vested, and not a law which had been repealed. And there was no other law in force vesting powers in circuit courts except the law of 13 February, 1801. And the repeal of this law fifteen months afterwards, and after the court in this District had been organized and gone into operation under the Act of 27 February, 1801, could not in any manner affect that law any further than was provided by the repealing act. To what law was the Circuit Court of this District to look for the powers vested in the circuit courts of the United States, by which the court was to be governed, during the time the Act of 13 February was in force? Certainly to none other than that act. And whether the time was longer or shorter before that law was repealed could make no difference.

It was not an uncommon course of legislation in the states at an early day to adopt, by reference British statutes, and this has been the course of legislation by Congress in many instances where state practice and state process has been adopted. And such adoption has always been considered as referring to the law existing at the time of adoption, and no subsequent legislation has ever been supposed to affect it. And such must necessarily be the effect and operation of such adoption. No other rule would furnish any certainty as to what was the law, and would be adopting prospectively all changes that might be made in the law. And this has been the light in which this Court has viewed such legislation. In the case of Cathcart v. Robinson, 5 Pet. 280, the Court, in speaking of the adoption of certain English statutes said

"By adopting them, they become our own as entirely as if they had been enacted by the legislature. We are then to construe this third section of the Act of 27 February, 1801, as if the eleventh section of the Act of 13 February, 1801, had been incorporated at full length, and by this section it is declared that the circuit courts shall have cognizance of all cases in law or equity arising under the Constitution and laws of the United States and treaties made or which shall be made under their authority. which are the very words of the Constitution and which is, of course, a delegation of the whole judicial power in cases arising under the Constitution and laws, &c., which meets and supplies the precise want of delegation of power which prevented the exercise

Page 37 U. S. 626

of jurisdiction in the cases of McIntire v. Wood and McCluny v. Silliman, and must, on the principles which governed the decision of the Court in those cases, be sufficient to vest the power in the Circuit Court of this District."

The judgment of the court below is accordingly

Affirmed with costs and the cause remanded for further proceedings.

MR. CHIEF JUSTICE TANEY:

As this case has attracted some share of the public attention and a diversity of opinion exists on the bench, it is proper that I should state the grounds upon which I dissent from the judgment pronounced by the Court. There is no controversy about the facts, and as they have been already sufficiently stated, I need not repeat them.

Upon some of the points much argued at the bar there is no difference of opinion in the Court. Indeed I can hardly understand how so many grave questions of constitutional power have been introduced into the discussion of a case like this and so earnestly debated on both sides. The office of Postmaster General is not created by the Constitution, nor are its powers or duties marked out by that instrument. The office was created by act of Congress, and wherever Congress creates such an office as that of Postmaster General, by law, it may unquestionably by law limit its powers and regulate its proceedings, and may subject it to any supervision or control, executive or judicial, which the wisdom of the legislature may deem right. There can therefore be no question about the constitutional powers of the executive or judiciary in this case. The controversy depends simply upon the construction of an act of Congress. The Circuit Court for the District of Columbia was organized by the Act of February 27, 1801, which defines its powers and jurisdiction, and if that law, by its true construction, confers upon the court the power it has in this instance exercised, then the judgment must be affirmed.

There is another point on which there is no difference of opinion in the Court. We all agree that by the Act of July 2, 1836, it was the duty of the Postmaster General to credit Stockton and Stokes with the amount awarded by the Solicitor of the Treasury, that no discretionary power in relation to the award, was given to the Postmaster General, and that the duty enjoined upon him was merely ministerial.

Page 37 U. S. 627

These principles being agreed on, it follows that this was a proper case for a mandamus, provided Congress has conferred on the Circuit Court for the District of Columbia the prerogative, jurisdiction, and powers exercised by the Court of King's Bench in England, for Stockton and Stokes are entitled to have the credit entered in the manner directed by the act of Congress, and they have no other specific means provided by law for compelling the performance of this duty. In such a case, the Court of King's Bench in England would undoubtedly issue the writ of mandamus to such an officer commanding him to enter the credit. Has Congress conferred similar jurisdiction and powers upon the Circuit Court for this District? This is the only question in the case. The majority of my brethren think that this jurisdiction and power has been conferred, and they have given their reasons for their opinion. I, with two of my brethren, think otherwise, and with the utmost respect for the opinion of the majority of this Court, I proceed to show the grounds on which I dissent from their judgment.

It has been decided in this Court that the circuit courts of the United States, out of this District, have not the power to issue the writ of mandamus to an officer of the general government commanding him to do a ministerial act. The question has been twice before the Supreme Court, and upon both occasions was fully argued and deliberately considered. The first case was that of McIntyre v. Wood, 7 Cranch 504, decided in 1813. It was again brought up in 1821 in the case of McCluny v. Silliman, 6 Wheat. 598, when the former decision was reexamined and affirmed. And it is worthy of remark that although the decision first mentioned was made twenty-five years ago, yet Congress has not altered the law or enlarged the jurisdiction of the circuit courts in this respect, thereby showing that it has not been deemed advisable by the legislature to confer upon them the jurisdiction over the officers of the general government which is claimed by the Circuit Court for this District.

As no reason of policy or public convenience can be assigned for giving to the circuit court here a jurisdiction on this subject which has been denied to the other circuit courts, those who maintain that it has been given ought to show us words which distinctly give it or from which it can plainly be inferred. When Congress intended to confer this jurisdiction on the Supreme Court by the Act of 1789, ch. 20, they used language which nobody could misunderstand. In that law they declared that the Supreme Court should have power

Page 37 U. S. 628

to issue

"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."

Here are plain words. But no such words of grant are to be found in the Act of February 27, 1801, which established the Circuit Court of the District of Columbia and defined its powers and jurisdiction. Indeed, those who insist that the power is given seem to have much difficulty in fixing upon the particular clauses of the law which confers it. Sometimes it is said to be derived from one section of the act and then from another. At one time it is said to be found in the first section, at another in the third section, and then in the fifth section, and sometimes it is said to be equally discoverable in all of them. The power is certainly nowhere given in direct and positive terms, and the difficulty in pointing out the particular clause from which the power is plainly to be inferred is strong proof that Congress never intended to confer it. For if the legislature wished to vest this power in the Circuit Court for this District while they denied it to the circuit courts sitting in the states, we can hardly believe that dark and ambiguous language would have been selected to convey their meaning; words would have been found in the law equally plain with those above quoted, which conferred the power on the supreme court.

But, let us examine the sections which are supposed to give this power to this circuit court.

1st. It is said to be given by the first section. This section declares that the laws of Maryland as they then existed should be in force in that part of the District ceded by Maryland and the laws of Virginia in that part of the District ceded by Virginia. By this section, the common law in civil and criminal cases, as it existed in Maryland at the date of this act of Congress (February 27, 1801) became the law of the District on the Maryland side of the Potomac, and it is argued that this circuit court being a court of general jurisdiction in cases at common law and the highest court of original jurisdiction in the District, the right to issue the writ of mandamus is incident to its common law powers as a part of the laws of Maryland, and distinguishes it in this respect from the circuit courts for the states.

The argument if founded in a mistake as to the nature and character of the writ of mandamus as known to the English law and as

Page 37 U. S. 629

used and practiced in Maryland at the date of the act of Congress in question.

The power to issue the writ of mandamus to an officer of the government commanding him to do a ministerial act does not, by the common law of England or by the laws of Maryland as they existed at the time of the cession, belong to any court whose jurisdiction was limited to a particular section of country and was not coextensive with the sovereignty which established the court. It may, without doubt, be conferred on such courts by statute, as was done in Maryland in 1806, after the cession of the District. But by the principles of the common law and the laws of Maryland as they existed at the time of the cession, no court had a right to issue the prerogative writ of mandamus unless it was a court in which the judicial sovereignty was supposed to reside and which exercised a general superintendence over the inferior tribunals and persons throughout the nation or state.

In England this writ can be issued by the King's Bench only. It cannot be issued by the court of common pleas or any other court known to the English law except the Court of King's Bench. And the peculiar character and constitution of that court, from which it derives this high power, are so well known and familiar to every lawyer that it is scarcely necessary to cite authorities on the subject. Its peculiar powers are clearly stated in 3 Black.Com. 42 in the following words:

"The jurisdiction of this court is very high and transcendant. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here or prohibit their progress below. It superintends all civil corporations in the Kingdom. It commands magistrates and others to do what their duty requires in every case where there is no other specific remedy. It protects the liberty of the subject by speedy and summary interposition,"

&c. It is from this "high and transcendant" jurisdiction that the Court of King's Bench derives the power to issue the writ of mandamus, as appears from the same volume of Blackstone's Commentaries 110. "The writ of mandamus," says the learned commentator,

"is in general 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

Page 37 U. S. 630

at least supposes to be consonant to right and justice. It is a high prerogative writ of a most extensively remedial nature."

And Mr. Justice Butler, in his introduction to the law relative to trials at nisi prius, also places the right to issue this writ upon the peculiar and high powers of the Court of King's Bench. In page 195, he says:

"The writ of mandamus is a prerogative writ issuing out of the Court of King's Bench (as that court has a general superintendency over all inferior jurisdictions and persons), and is the proper remedy to enforce obedience to acts of Parliament and to the King's charter, and in such a case is demandable of right."

Indeed, in all of the authorities it is uniformly called a "prerogative writ" in order to distinguish it from the ordinary process which belongs to courts of justice, and it was not originally considered as a judicial proceeding, but was exercised as a prerogative power. In the case of Audley v. Jay, Popham 176, Doddridge, Justice, said:

"This Court hath power not only in judicial things, but also in some things which are extrajudicial. The mayor and commonalty of Coventry displaced one of the aldermen, and he was restored, and this thing is peculiar to this court and is one of the flowers of it."

These peculiar powers were possessed by the Court of King's Bench because the King originally sat there in person and aided in the administration of justice. According to the theory of the English Constitution, the King is the fountain of justice, and where the laws did not afford a remedy and enable the individual to obtain his right, by the regular forms of judicial proceedings, the prerogative powers of the sovereign were brought in aid of the ordinary judicial powers of the court, and the mandamus was issued in his name to enforce the execution of the law. And although the King has long since ceased to sit there in person, yet the sovereign is still there in construction of law so far as to enable the court to exercise its prerogative powers in his name, and hence its powers to issue the writ of mandamus, the nature of which Justice Doddridge so forcibly describes by calling it extrajudicial, and one of the flowers of the King's Bench. It is therefore evident that by the principles of the common law, this power would not be incident to any court which did not possess the general superintending power of the Court of King's Bench, in which the sovereignty might by construction of law be supposed to sit and to exert there its prerogative powers in aid of the court in order that a right might not be without a remedy.

The English common law was adopted in the Colony of Maryland,

Page 37 U. S. 631

and the courts of the province formed on the same principles. The proprietary government established what was called the provincial court, in which it appears that, in imitation of what had been done in England, the lord proprietary, in an early period of the colony, sat in person. * This court possessed the same powers in the province that belonged to the Court of King's Bench in England. Its jurisdiction was coextensive with the dominions of the lord proprietary, and it exercised a general superintendence over all inferior tribunals and persons in the province, and consequently possessed the exclusive power of issuing the writ of mandamus.

When the revolution of 1776 took place, the same system of jurisprudence was adopted, and the fifty-sixth article of the Constitution of Maryland provided

"That three persons of integrity and sound judgment in the law be appointed judges of the court now called the Provincial Court, and that the same court be hereafter called and known by the name of the General Court."

No further description of the jurisdiction and powers of the General Court is given. It therefore, in the new order of things, was clothed with the same powers and jurisdiction that had belonged to the Provincial Court before the revolution. In other words, the General Court was, in the State of Maryland precisely what the Court of King's Bench was in England. Afterwards, and before the cession of the District of Columbia to the United States, county courts were established in Maryland corresponding in character with what are called circuit courts in most of the states. These courts possessed general jurisdiction, civil and criminal, in the respective counties, subject, however, to the superintending power of the General Court, which exercised over them the same sort of jurisdiction which the Court of King's Bench exercises over inferior tribunals. This was the system of jurisprudence in Maryland at the time when the act of Congress adopted the laws of the state for the District, and the power which the Maryland courts then possessed, by virtue of those laws, in relation to the writ of mandamus, are set forth in the case of Runkle v. Winemiller, 4 Harris & McHenry 449. Chief Justice Chase, in delivering the opinion of the court in that case, after describing the character and principles of the writ of mandamus, says:

"The Court

Page 37 U. S. 632

of King's Bench having a superintending power over inferior courts of jurisdiction, may and of right ought to interfere to supply a remedy when the ordinary forms of proceeding are inadequate to the attainment of justice in matters of public concern. 3 Bac.Abr. 529, 530. The position that this court is invested with similar powers is generally admitted, and the decisions have invariably conformed to it, from whence the inference is plainly deducible that this court may, and of right ought for the sake of justice, to interpose in a summary way to supply a remedy where, for the want of a specific one, there would otherwise be a failure of justice."

This case was decided in 1799, in the General Court, and it shows most evidently that the power of issuing the writ of mandamus was confined to that court, and was derived from its King's Bench powers of superintending inferior courts and jurisdictions in the execution of the law, and that this power was not possessed by any other court known to the laws of Maryland. And so well and clearly was this understood to be the law of the state that when the General Court was afterwards abolished by an alteration in the Constitution and county courts established as the highest courts of original jurisdiction, no one supposed that the prerogative powers of the General Court were incidental to their general jurisdiction over cases at common law, and a statute was passed in 1806 to confer this jurisdiction upon them. This act declares

"That the county courts shall have, use, and exercise, in their respective counties, all and singular the powers, authorities, and jurisdictions which the General Court, at the time of the abolition thereof, might or could have exercised in cases of writs of mandamus."

The adoption of the laws of Maryland therefore does not give to the Circuit Court for the District of Columbia the power to issue the writ of mandamus as an incident to its general jurisdiction over cases at common law. It has none of what Blackstone calls the "high and transcendent" jurisdiction of the Court of King's Bench in England and of the General Court in Maryland. It is not superior to all the other courts of the United States of original jurisdiction throughout the Union; it is not authorized to superintend them, and "keep them within the bounds of their authority;" it does not "superintend all civil incorporations" established by the United States, nor "command magistrates" and other officers of the United States in every quarter of the country "to do what their duty requires in every case where there is no other specific remedy." Its jurisdiction is confined to the narrow limits of the District, and the

Page 37 U. S. 633

jurisdiction which it derives from the adoption of the laws of Maryland must be measured by that of the county courts of the state, which the court for this District in every respect resembles. These courts had no power to issue the writ of mandamus at the time when the laws of Maryland were adopted by Congress, and when the county courts afterwards became, by the abolition of the General Court, the highest courts of original jurisdiction, still, by the laws of that state, they could not issue this writ until the power to do so was conferred on them by statute. As this act of assembly passed five years after Congress assumed jurisdiction over the District, it forms no part of the laws adopted by the act of Congress. I cannot, therefore, see any ground whatever for deriving the authority to issue this writ of mandamus from the first section of the act of Congress, adopting the laws of Maryland as they then existed.

2. But it is insisted that if the power to issue the writs of mandamus is not incidentally granted to this circuit court by the first section of the act of February 27, 1831, which adopts the laws of Maryland, yet it is directly and positively given by the fifth section, which declares that the court shall have cognizance of "all cases in law and equity." It is said that a case proper for a mandamus is a case at law, and that the words above mentioned therefore, authorize the circuit court to take cognizance of it.

The cases of Wood v. McIntire and McCluny v. Silliman, hereinbefore mentioned, appear to me to be decisive against this proposition. These cases decided that the circuit courts out of this District have not the power now in question. It is true that the eleventh section of the Act of 1789, ch. 20, which prescribes the jurisdiction of the circuit courts out of this District, does not use the very same words that are used in the fifth section of the act now under consideration. The eleventh section of the act of 1789 declares that the circuit courts shall have cognizance of "all suits of a civil nature at common law, or in equity," &c. But these words "all suits of a civil nature at common law" mean the same thing as the words "all cases at law," which are used in the Act of February 27, 1801, and MR. JUSTICE STORY, in his Commentaries on the Constitution, Abr. 608, 609, in commenting on the meaning of the words, "cases at law and equity," as used in the Constitution, says:

"A case, then, in the sense of this clause of the Constitution, arises where some subject touching the Constitution, laws, or treaties of the United States is submitted to the courts by a party who asserts his rights in the

Page 37 U. S. 634

form prescribed by law. In other words, a case is a suit in law or equity instituted according to the regular course of judicial proceedings, and when it involves any question arising under the Constitution, laws, or treaties of the United States, it is within the judicial power confided to the Union."

Now if a case at law means the same thing as a suit at law, and the latter words do not give jurisdiction to the circuit courts out of this District to issue the writ of mandamus to an officer of the general government, how can words which are admitted to mean the same thing give the power to the circuit court within this District? How can the cognizance of "cases at law," in the act of Congress before us, be construed to confer this jurisdiction when it has been settled by two decisions of this Court that words of the same meaning do not give it to the other circuit courts? We cannot give this construction to the Act of February 27, 1801, without giving a judgment inconsistent with the decisions of this Court in the two cases above mentioned, and I cannot agree either to overrule these cases or to give a judgment inconsistent with them.

But it is argued that if the 1st section of the act of Congress does not give the circuit court this jurisdiction, and if the 5th section does not give it, yet it may be derived from these two sections taken together. The argument, I understand, is this:

The General Court of Maryland possessed the power to issue the writ of mandamus in a case of this description, and inasmuch as that court possessed this power, the cases which authorized the parties to demand it were "cases at law" by the laws of that state, and consequently the jurisdiction is conferred on the circuit court in similar cases by the adoption of the laws of Maryland in the first section and the words in the fifth which give the circuit court cognizance of "cases at law."

The fallacy of this argument consists in assuming that the General Court of Maryland had jurisdiction to issue the writ of mandamus because it was "a case at law" whenever the party took the proper steps to show himself entitled to it. The reverse of this proposition is the true one. A "case at law," as I have already shown, means the same thing as a "suit," and the General Court had authority to issue the writ of mandamus not because the proceeding was a case or suit at law, but because no case or suit at law would afford a remedy to the party. This is the basis upon which rests the power of the Court of King's Bench in England, and upon which rested the power of the General Court in Maryland before that court was abolished.

Page 37 U. S. 635

These courts, by virtue of their prerogative powers, interposed "to supply a remedy in a summary way," where no suit or action known to the law would afford one to the party for the wrong he had sustained. It is not a suit in form or substance, and never has been so considered in England or in Maryland. For if it had been considered in Maryland as a suit at law, Chief Justice Chase, in the case of Runkel v. Winemiller, hereinbefore referred to, would hardly have put his decision on the prerogative powers of the General Court in the manner hereinbefore stated. Since the statute of 9 Anne, authorizing pleadings in proceedings by mandamus, it has been held that such a proceeding is in the nature of an action and that a writ of error will lie upon the judgment of the court awarding a peremptory mandamus. But it never has been said in any book of authority that this prerogative process is "an action," or "a suit," or "a case" at law, and never suggested that any court not clothed with the prerogative powers of the King's Bench could issue the process according to the principles of the common law unless the power to do so had been conferred by statute.

4. But it is said that if the jurisdiction exercised in this case by the Circuit Court for the District of Columbia cannot be maintained upon any of the grounds hereinbefore examined, it may yet be supported on the 3d section of the Act of February 27, 1801. This section, among other things, provides that this circuit "court and the judges thereof shall have all the powers by law vested in the circuit courts, and the judges of the circuit courts of the United States." And it is insisted that as the Act of February 13, 1801, was at that time in force, the powers of this circuit court are to be measured by that act, although it has since been repealed; that the circuit courts established by the Act of February 13, 1801, did possess the power in question, and consequently that the Circuit Court for this District now possesses it, and may lawfully exercise it.

There are two answers to this argument, either of which is in my judgment sufficient.

In the first place, there are no words in the Act of February 27, 1801, which refer particularly to the powers given to the circuit courts by the Act of February 13, 1801, as the rule by which the powers of the Circuit Court for this District are to be measured. The obvious meaning of the words above quoted is that the powers of this circuit court shall be regulated by the existing powers of the circuit courts as generally established, so that the powers of this circuit

Page 37 U. S. 636

court would be enlarged or diminished, from time to time, as Congress might enlarge or diminish the powers of the circuit courts in its general system. And when the law of February 13, 1801, was afterwards repealed and the act of 1789 reenacted, the powers of this circuit court were regulated by the powers conferred on the circuit courts by the last mentioned law. It was the intention of Congress to establish uniformity in this respect, and they have used language which, in my opinion, makes that intention evident. The Circuit Court for this District cannot, therefore, refer for its "powers" to the act of February 13, 1801, since that act has been repealed.

In the second place, if the powers of the Circuit Court for the District of Columbia are still to be regulated by the law which was repealed as long ago as 1802, yet it will make no difference in the result of the argument. Much has been said about the meaning of the words "powers" and "cognizance" as used in these acts of Congress. These words are no doubt generally used in reference to courts of justice as meaning the same thing, and I have frequently so used them in expressing my opinion in this case. But it is manifest that they are not so used in the acts of Congress establishing the judicial system of the United States, and that the word "powers" is employed to denote the process, the means, the modes of proceedings which the courts are authorized to use in exercising their jurisdiction in the cases specially enumerated in the law as committed to their "cognizance."

Thus in the act of 1789, ch. 20, the 11th section specifically enumerates the cases or subject matter of which the circuit courts shall have "cognizance," and subsequent sections under the name of "powers" describe the process, the means which the courts may employ in exercising their jurisdiction in the cases specified. For example, section 14 gives them the "power" to issue the writs "necessary for the exercise of their respective jurisdictions," and names particularly some of the writs which they shall have the "power" to issue; section 15 gives them the "power" to compel parties to produce their books, &c.; section 17 gives them the "power" to grant new trials, to administer oaths, to punish contempts, and to establish rules of court. The same distinction between "powers" and jurisdiction or "cognizance" is preserved in the Act of February 13, 1801. The 10th section of this act gives the circuit courts thereby established all the "powers" before vested in the circuit courts of the United States unless where otherwise provided by that law, and the next following section (the 11th) enumerates specifically the

Page 37 U. S. 637

cases or controversies of which they shall have "cognizance." And so also in the Act of February 27, 1801, establishing the Circuit Court for this District, the same distinction is continued, and the 3d section (the one now under consideration) gives the court "all the powers by law vested in the circuit courts," while the 5th section enumerates particularly the matters and controversies of which it shall have "cognizance" -- that is to say, over which it shall exercise jurisdiction by the means and the "powers" given to it for that purpose by this same act of Congress.

With these several laws before us, in each of which the same terms have evidently been always used in the same sense, it appears to me impossible to doubt the meaning which Congress intended to affix to them. If they had used the word "powers" and the word "cognizance," as meaning the same thing, would they, in the 10th section of the Act of February 13, 1801, have given jurisdiction in general terms under the name of "powers" to the courts thereby established, and then have immediately followed it up with a specification of the cases of which it should take "cognizance," and if such an unusual mode of legislation had been adopted in this law from inadvertence or mistake, would it have been adhered to and repeated in the Act of February 27, 1801? It is hardly respectful to the legislative body for this Court to say so. It is clear that the word "powers" must have been constantly used in these laws in the sense I have already stated, and if the 3d section of the last mentioned act is to be construed as referring particularly to the Act of February 13, 1801, it will not affect the present controversy. For we find the "powers" of those circuit courts given by the 10th section, and they are there given by referring as generally to the "powers" conferred on the circuit courts by preceding laws, so that after all we are still carried back to the act of 1789 in order to learn the powers of the circuit courts established by the Act of February 13, 1801, and consequently we are also to learn from that law the "powers" of the Circuit Court for this District. And upon turning to the act of 1789, we find there the power given to the Supreme Court to issue the writ of mandamus "to persons holding office under the authority of the United States," but we find no such power given to the circuit courts. On the contrary, it has been decided as hereinbefore stated, that under the act of 1789, they are not authorized to issue the process in question. The 3d section of the Act of February 27, 1801, will not, therefore, sustain the jurisdiction exercised in this case by the circuit court.

Page 37 U. S. 638

But the principal effort on the part of the relators in this branch of the argument is to give to this third section such a construction as will confer on this circuit court a jurisdiction coextensive with that given to the circuit courts by the eleventh section of the Act of February 13, 1801. In other words, they propose to expound the Act of February 27 as if this section of the Act of February 13 was inserted in it. The eleventh section of the act referred to enumerates and specifies particularly the cases of which the circuit courts thereby established had "cognizance," and the relators insist that jurisdiction in all the cases mentioned in that section is also conferred on the Circuit Court for this District by reason of the provision in the third section of the Act of February 27, above mentioned. And they contend that the aforesaid eleventh section gave to the circuit courts established by that law jurisdiction to issue the writ in question, and that the Circuit Court for this District therefore possesses the same jurisdiction, even although it is not given by the fifth section of the act establishing it. The object of this argument is to extend the jurisdiction of this circuit court beyond the limits marked out for it by the fifth section of the act which created it, provided the eleventh section of the Act of February 13 shall be construed to have given a broader jurisdiction.

Now it appears to me that when we find the eleventh section of the Act of February 13 enumerating and specifying the cases of which the circuit courts out of this District should have "cognizance," and the fifth section of the Act of February 27, enumerating and specifying the cases of which the circuit court within this District should have "cognizance;" if there is found to be any substantial difference in the jurisdictions thus specified and defined in these two laws, the just and natural inference is that the legislature intended that the jurisdiction of the courts should be different and that they did not intend to give to the Circuit Court for this District the same jurisdiction that had been given to the others. This would be the legitimate inference in comparing any laws establishing different courts, and the conclusion is irresistible in this case, where the two laws were passed within a few days of each other, and both must have been before the legislature at the same time. It would be contrary to the soundest rules for the construction of statutes in such a case to enlarge the jurisdiction of this circuit court beyond the limits of the fifth section by resorting to such general words as those contained in the third, and to words, too, which much more

Page 37 U. S. 639

appropriately apply to its process, to its modes of proceeding, and to other "powers" of the court, and which certainly have no necessary connection with the cases of which the court is authorized to take "cognizance."

I do not, however, mean to say that the eleventh section of the Act of February 13, conferred on the circuit courts which it established the power to issue the writ of mandamus in a case like the present one. I think it did not, and that a careful analysis of its provisions would show that it did not, especially when taken in connection with the provisions of the act of 1789, which had expressly conferred that power on the Supreme Court. But it is unnecessary to pursue the argument on this point, because no just rule of construction can authorize us to engraft the provisions of this section upon the Act of February 27 so as to give to the Circuit Court for the District of Columbia a wider jurisdiction than that contemplated by the fifth section of the last mentioned act.

Upon a view of the whole case, therefore, I cannot find the power which the circuit court has exercised either in the first section, or the third section, or the fifth section, and it is difficult to believe that Congress meant to have given this high prerogative power in so many places and yet, in every one of them have left it, at best, so ambiguous and doubtful. And if we now sanction its exercise, we shall give to the court, by remote inferences and implications, a delicate and important power which I feel persuaded Congress never intended to entrust to its hands.

Nor do I see any reason of policy that should induce this Court to infer such an intention on the part of the legislature where the words of the law evidently do not require it. It must be admitted that Congress have denied this power to the circuit courts out of this District. Why should it be denied to them, and yet be entrusted to the court within this District? There are officers of the general government in all of the states who are required by the laws of the United States to do acts which are merely ministerial and in which the private rights of individuals are concerned. There are collectors and other officers of the revenue who are required to do certain ministerial acts in giving clearances to vessels or in admitting them to entry or to registry. There are also registers and receivers of the land offices who are in like manner required by law to do mere ministerial acts in which the private rights of individuals are involved. Is there any reason of policy that should

Page 37 U. S. 640

lead us to suppose that Congress would deny the writ of mandamus to those who have such rights in the states and give it to those who have rights in this District? There would be no equal justice in such legislation, and no good reason of policy or convenience can be assigned for such a distinction.

The case of Columbian Insurance Company v. Wheelwright, 7 Wheat. 534, has been relied on as sanctioning the exercise of the jurisdiction in question, and it is said that this Court, in determining that a writ of error would lie from the decision of the Circuit Court of this District awarding peremptory mandamus have impliedly decided that the circuit court had jurisdiction to issue the process. I confess I cannot see the force of this argument. The 8th section of the Act of February 27, 1801, provides

"That any final judgment, order, or decree in said circuit court wherein the matter in dispute, exclusive of costs, shall exceed the value of one hundred dollars may be reexamined and reversed or affirmed in the Supreme Court of the United States by writ of error or appeal, which shall be prosecuted in the same manner, under the same regulations, and the same proceedings shall be had therein as is or shall be provided in the case of writs of error or judgments, or appeals upon orders or decrees rendered in the Circuit Court of the United States."

Now the order for a peremptory mandamus in the case cited, as well as in the one now before the Court, was certainly "a final judgment" of the circuit court. It decided that they had jurisdiction to issue the mandamus and that the case before them was a proper one for the exercise of this jurisdiction. Being the "final judgment" of the circuit court, it was liable to be reexamined in this Court by writ of error, and to be reversed if upon such reexamination it was found that the circuit court had committed an error either in assuming a jurisdiction which did not belong to it or by mistaking the rights of the parties if it had jurisdiction to issue the mandamus. In the case of Custis v. Georgetown & Alexandria Turnpike Company, 6 Cranch 233, the Supreme Court sustained the writ of error and reversed the judgment of the Circuit Court of this District quashing an inquisition returned to the clerk, and this was done upon the ground that the circuit court had exercised a jurisdiction which did not belong to it. There are a multitude of cases where this Court have entertained a writ of error for the purpose of reversing the judgment of the court below upon the ground that the circuit court had not jurisdiction of the case for the

Page 37 U. S. 641

want of the proper averments in relation to the citizenship of the parties.

It is certainly error in a circuit court to assume a jurisdiction which has not been conferred on it by law. And it would seem to be a strange limitation on the appellate powers of this Court if it were restrained from correcting the judgment of a circuit court when it committed this error. If such were the case, then an error committed by a circuit court in relation to the legal rights of the parties before it could not be examined into and corrected in this Court if it happened to be associated with the additional error of having assumed a jurisdiction which the law had not given. Such, I think, cannot be the legitimate construction of the section above quoted. And if the circuit court mistakes its jurisdiction either in respect to the persons, or the subject matter or the process, or the mode of proceeding, the mistake may be corrected here by a writ of error from its final judgment or by appeal in cases of equity or admiralty jurisdiction. And whether the final judgment is pronounced in a summary or other proceeding, if it be in a case in which the circuit court had not jurisdiction, its judgment may be reexamined here and the error corrected by this Court. The decision of this Court therefore, in the case of Columbian Insurance Company v. Wheelwright, that a writ of error would lie from the judgment of the Circuit Court of the District of Columbia awarding a peremptory mandamus is by no means a decision that the court below had jurisdiction to issue it.

In fine, every view which I have been able to take of this subject leads me to conclude that the circuit court had not the power to issue a writ of mandamus in the case before us. And although I am ready to acknowledge the respect and confidence which is justly due to the decision of the majority of this Court, and am fully sensible of the learning and force with which their judgment is sustained by the learned judge who delivered the opinion of the Court, I must yet, for the reasons above stated, dissent from it. I think that the circuit court had not by law the right to issue this mandamus, and that the judgment they have given ought to be reversed.

MR. JUSTICE BARBOUR:

In this case I have no doubt but that Congress have the constitutional power to give to the federal judiciary, including the Circuit Court of this District, authority to issue the writ of mandamus to the

Page 37 U. S. 642

Postmaster General, to compel him to perform any ministerial duty devolved on him by law.

I have no doubt that the act which in this case was required to be done by the Postmaster General is such an one as might properly be enforced by the writ of mandamus if the Circuit Court of this District had authority by law to issue it.

But the question is whether that court is invested with this authority by law. I am of opinion that it is not, and I will state the reasons which have brought me to that conclusion.

It was decided by this Court in the case of McIntire v. Wood, 7 Cranch 504, upon a certificate of division from the Circuit Court of Ohio, that that court did not possess the power to issue a writ of mandamus to the register of a land office commanding him to issue a final certificate of purchase to the plaintiff for certain lands in the State of Ohio.

The principle of this case was approved and the same point affirmed in the case of McCluny v. Silliman, 6 Wheat. 598.

In the views, then, which I am about to present, I shall set out with the adjudged and admitted proposition that no other circuit courts of the United States have power to issue the writ of mandamus. And then the whole question is resolved into the single inquiry whether the Circuit Court of this District has power to do that which all admit the other circuit courts of the United States have not the power to do? It has been earnestly maintained at the bar that it has because, it is said, that it has by law a larger scope of jurisdiction.

To bring this proposition to the test of a close scrutiny, let us compare the precise terms in which the jurisdiction of the circuit courts of the United States is granted by the Judiciary Act of 1789 with those which are used in the grant of jurisdiction to the Circuit Court of this District by the Act of the 27 February, 1801.

The eleventh section of the Judiciary Act of 1789, so far as it respects this question, is in these words:

"That the circuit courts shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds five hundred dollars and the United States is plaintiff or petitioner or an alien is a party or the suit is between a citizen of the state where the suit is brought and a citizen of another state."

The fifth section of the Act of 27 February, 1801, giving

Page 37 U. S. 643

jurisdiction to the Circuit Court of this District, so far as respects this question, is in these words:

"That said court shall have cognizance of all cases in law and equity between parties both or either of which shall be resident or shall be found within the said District, and also of all actions or suits of a civil nature at common law or in equity in which the United States shall be plaintiff or complainant."

Having placed these two sections in juxtaposition for the purpose of comparing them together, I will now proceed to examine the particulars in which it has been attempted to be maintained that the grant of jurisdiction to the Circuit Court of this District is more extensive than that to the other circuit courts of the United States, so as to enable it to reach this case, which it is admitted the others cannot do.

In the first place we have been told that in the grant of jurisdiction to the other circuit courts by the eleventh section of the Judiciary Act of 1789, the words "concurrent with the courts of the several states" are found, which words are not contained in the fifth section of the Act of 27 February, 1801, giving jurisdiction to the Circuit Court of this District. It is argued that these words are restrictive in their operation, and limit the jurisdiction of those courts to those cases only of which the state courts could take cognizance at the time the Judiciary Act of 1789 was passed. That as the ordinary jurisdiction of the state courts did not then extend to cases arising under the Constitution and laws of the United States, therefore the jurisdiction of the circuit courts given by the eleventh section of that act did not extend to those cases, because it was declared to be concurrent, and consequently only coextensive.

This position is, in my estimation, wholly indefensible. I think it a proposition capable of the clearest proof that the insertion of the words "concurrent with the courts of the several states" was not intended to produce, and does not produce, any limitation or restriction whatsoever upon the jurisdiction of the circuit courts of the United States.

No such consequence could follow for this obvious reason -- that the state courts could themselves rightfully take cognizance of any question whatever which arose in a case before them, whether growing out of the Constitution, laws, and treaties of the United States or, as is said in the eighty-second number of the Federalist, arising under the laws of Japan. The principle is, as laid down in the number

Page 37 U. S. 644

of the Federalist just referred to

"That the judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation, between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe."

In conformity with this principle, it is said by this Court, 14 U. S. 1 Wheat. 340, speaking of the state courts:

"From the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or constitution of the state, but according to the Constitution, laws, and treaties of the United States, the supreme law of the land."

And in the same case, after putting cases illustrative of the proposition and a course of reasoning upon them, they conclude by saying,

"It must therefore be conceded that the Constitution not only contemplated but meant to provide for cases within the scope of the judicial power of the United States which might yet depend before state tribunals. It was foreseen that in the exercise of their ordinary jurisdiction, state courts would incidentally take cognizance of cases arising under the Constitution, the laws, and treaties of the United States."

From these quotations it is apparent that no restriction can have been imposed upon the jurisdiction of the circuit courts of the United States by words which make it concurrent with that of the courts of the states when it is admitted that there is no question which can arise before them in a civil case which they are not competent and indeed bound to decide according to the laws applicable to the question, whether they be the Constitution, laws and treaties of the United States, the laws of Japan, or any other foreign country on the face of the earth.

The same number of the Federalist already referred to furnishes the obvious reason why these words were inserted. It is there said that amongst other questions which had arisen in relation to the Constitution, one was whether the jurisdiction of the federal courts was to be exclusive, or whether the state courts would possess a concurrent jurisdiction. The author reasons upon the subject, quotes the terms in which the judicial power of the United States is vested by the Constitution, states that these terms might be construed as importing one or the other of two different significations, and then concludes thus:

"The first excludes, the last admits, the concurrent jurisdiction of the state tribunals, and as the first would

Page 37 U. S. 645

amount to an alienation of state power, by implication, the last appears to me the most defensible construction."

The reason, then, why these words were inserted in the eleventh section of the Judiciary Act was to remove the doubt here expressed, to obviate all difficulty upon the question whether the grant of judicial power to the federal courts, without saying more, might not possibly be construed to exclude the jurisdiction of the state courts. Its sole object was, as is sometimes said in the law books, to exclude a conclusion.

Congress cannot, indeed, confer jurisdiction upon any courts but such as exist under the Constitution and laws of the United States, as is said in Houston v. Moore, 5 Wheat. 27, although it is said in the same case the state courts may exercise jurisdiction on cases authorized by the laws of the state and not prohibited by the exclusive jurisdiction of the federal courts. This, however, is not because they have had or can have any portion of the judicial power of the United States, as such, imparted to them, but because, by reason of their original, rightful judicial power as state courts, they are competent to decide all questions growing out of all laws which arise before them, and accordingly the framers of the Judiciary Act, proceeding on the idea that questions arising under the Constitution, laws, and treaties of the United States might and would be presented and decided in the state courts, inserted the 25th section, by which those cases, under certain circumstances, might be brought by writ of error or appeal to this Court.

The difference in the phraseology of the two sections has been adverted to. It has been said that the words in the 11th section of the Judiciary Act of 1789 are all suits of a civil nature at common law or in equity, and those in the 5th section of the act of 1801, giving jurisdiction to the Circuit Court of this District, are "all cases in law and equity." Now it is impossible to maintain that there is any difference in legal effect between these two modes of expression. What is a case in law or equity? I give the answer in the language of the late Chief Justice of this Court: "To come within this description, a question must assume a legal form, for forensic litigation, and judicial decision." And what is a suit? I give the answer also in the language of the late Chief Justice, who, in 27 U. S. 2 Pet. 464, says, in delivering the opinion of the Court, "if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit." It is then unquestionably true that the court which has jurisdiction over "all

Page 37 U. S. 646

suits in law and equity" has as much judicial power by those terms as a court has by the terms "all cases in law and equity." The only difference between the two sections under consideration, in relation to the question before us, consists in the two limitations contained in the 11th section of the Judiciary Act -- the one as to the character of the parties, the other as to the value of the matter in dispute.

When, therefore, we suppose a case in which the plaintiff and defendant are citizens of different states (the one being a citizen of the state where the suit is brought) and in which the value of the matter in dispute is five hundred dollars, with these parties and a subject matter of this value all the circuit courts of the United States can take cognizance of it, whether it shall have arisen under the Constitution, laws or treaties of the United States, the laws of a state, or of any foreign country having application to the case. Whenever, therefore, it is said that those courts cannot take cognizance of cases in law and equity arising under the Constitution, laws, or treaties of the United States, it is only meant to say that they cannot do it on account of the character of the questions to be decided, unless the parties and the value of the subject matter come within the description of the 11th section, but when they do, there cannot be a possible doubt. And this will explain the case of a patentee of an invention, referred to in the argument, to whom a right to institute a suit in the circuit courts has been given by special legislation. The only effect of that is that such a patentee can sue in the circuit courts on account of the character of the case, without regard to the character of the party as to citizenship or the value of the matter in dispute, whereas, without such special legislation, he could have sued in the circuit courts if his character as a party and the value of the matter in dispute had brought his case within the description of the 11th section of the Judiciary Act. In the case of McCluny v. Silliman, however, this difficulty did not exist, for it is distinctly stated in that case that the parties to that controversy were competent to sue under the 11th section, being citizens of different states, and yet this Court refers to and adopts the response which they had given to the question stated in McIntire v. Wood, which answer was in these words: "that the circuit court did not possess the power to issue the mandamus moved for."

It has been attempted to be maintained in the argument that the Circuit Court of this District has a more extensive jurisdiction than

Page 37 U. S. 647

the other circuit courts of the United States, by the following course of reasoning:

We have been referred to the third section of the act of 27 of February, 1801, establishing the Circuit Court of this District, which section is in these words: "The said court, and the judges thereof, shall have all the powers by law vested in the circuit courts, and the judges of the circuit courts of the United States." It is then assumed in the argument that the powers of the court and its jurisdiction are the same thing; it is also assumed that the third section has reference not to the powers of the circuit courts of the United States and their judges, as they shall be from time to time modified by legislation, but to those which were established by the Act of 13 February, 1801, entitled "an act to provide for the more convenient organization of the courts of the United States," which, though since repealed, was passed fourteen days before the act establishing the Circuit Court of this District, and was in force at the date of the passage of this latter act.

We are then referred to the eleventh section of the Act of 13 February, 1801, by which jurisdiction is given to the circuit courts thereby established, over "all cases in law or equity, arising under the Constitution and laws of the United States, and treaties made, or which shall be made under their authority."

Even conceding for the present all these assumptions in favor of the argument, it wholly fails to sustain the position contended for. To prove this I need only refer to my previous reasoning in this case, by which I have shown that under the eleventh section of the Judiciary Act of 1789, the circuit courts had as ample jurisdiction in all cases arising under the Constitution, laws, and treaties of the United States, as is given them by the section now under consideration, subject only to the two limitations as to parties and value of the matter in dispute. So that beyond all question, the only difference is that by the section now under consideration, the circuit courts could take cognizance on account of the character of the case, no matter who were the parties or what the value in dispute, whereas as, by the eleventh section of the Judiciary Act, they could take cognizance of the same questions, provided the parties were, for example, citizens of different states, and the matter in dispute was of the value of five hundred dollars. And yet, as I have already stated in McCluny v. Silliman, in which the parties corresponded to the requirements of the law, and there was no question raised as to the value of the matter in dispute, this Court reaffirmed the proposition

Page 37 U. S. 648

that the circuit courts of the United States did not possess the power to issue the writ of mandamus.

But let us briefly examine one of the assumptions which I have, argumenti gratia, conceded for the purpose of giving the fullest force to the argument founded on it. I mean that which takes for granted that the powers and the jurisdiction of the court are the same thing. I say nothing of the other assumption simply because it is wholly immaterial to the view which I take. Are the powers and jurisdiction of the court equivalent? Whatever may be the meaning of these terms in the abstract, they are clearly used as of essentially different import in the acts of Congress, and this difference will in my opinion go far to show the error in the conclusions drawn from the assumption that they are of equivalent import. There are several reasons which conclusively prove that they were used in different senses by Congress. In the first place, as well in the act of 1789, establishing the circuit courts of the United States, and the Act of 13 February, 1801, reorganizing them, as in the Act of 27 February, 1801, establishing the Circuit Court of this District, the jurisdiction of the court is defined in one section, and its powers are declared in another. Now it is an obvious remark that if powers and jurisdiction were considered as equivalent, here was mere useless tautology. For upon this hypothesis, the grant of powers carried with it jurisdiction, and, e converso, the grant of jurisdiction carried with it powers.

In the next place, we not only find that in some sections the term "cognizance" or "jurisdiction" (which are synonymous) is used, whilst in others the term "power" is made use of, but in the very same section -- that is, the thirteenth, in relation to the Supreme Court -- both terms are used thus: "The Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a state is a party, except" . . . , and in the same section, "and shall have power to issue writs of prohibition to the District courts. . . ."

Again, the act of 1789, after defining the jurisdiction of the different courts in different sections, viz., that of the District courts in the ninth, that of the circuit court in the eleventh, and that of the Supreme Court in the thirteenth, together with the power to issue writs of prohibition and mandamus, proceeds in subsequent sections to give certain powers to all the courts of the United States. Thus in the fourteenth, to issue writs of scire facias, habeas corpus, &c.; in the fifteenth, to require the production of books and writings; in the 17th, to grant new trials, to administer oaths, punish contempts,

Page 37 U. S. 649

&c. It is thus apparent that Congress used the terms "jurisdiction" and "powers" as being of different import. The sections giving jurisdiction describe the subject matter and the parties of which the courts may take cognizance; the sections giving powers import authority to issue certain writs and do certain acts incidentally becoming necessary in and being auxiliary to the exercise of their jurisdiction. In regard to all the powers in the fifteenth and seventeenth sections, this is apparent beyond all doubt, as every power given in both those sections necessarily presupposes that it is to be exercised in a suit actually before them except the last in the seventeenth section, and that is clearly an incidental one, it being a power "to make and establish all necessary rules for the orderly conducting business in the said courts," &c. And this bring me directly to the fourteenth section, under which it was contended, in the case of McCluny v. Silliman, that the circuit courts could issue writs of mandamus. That section is in these words:

"That all the beforementioned 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."

As the writ of mandamus is not specially provided for by law except in the case of the Supreme Court, it is obvious that to enable any circuit court to issue it, it must be shown to be necessary to the exercise of its jurisdiction. It is argued here, as it was in the case of McCluny v. Silliman, that a mandamus is proper where there is no other specific legal remedy, and that therefore in such a case it is necessary to the exercise of the jurisdiction of the court, and so within the words of the statute. But what was the answer of the Court in that case? Amongst other things, it said:

"It cannot be denied that the exercise of this power is necessary to the exercise of jurisdiction in the court below. But why is it necessary? Not because that court possesses jurisdiction, but because it does not possess it."

Again, it said:

"The fourteenth section of the act under consideration could only have been intended to vest the power now contended for in cases where the jurisdiction already exists, and not where it is to be courted or acquired by means of the writ proposed to be sued out. Such was the case brought up from Louisiana, in which the judge refused to proceed to judgment, by which act the plaintiff must have lost his remedy below, and this Court have been deprived of its appellate control over the question

Page 37 U. S. 650

of right."

As this answer was considered conclusive in the case referred to, it would be sufficient for me to stop here with giving the same answer. But let us pursue the subject a little further. The proposition which I maintain is that this section did not contemplate any original writ, but only those which are incidental and auxiliary. That it did not contemplate any writ as original process is apparent from this consideration -- that by an act passed at the same session, and within five days thereafter, entitled an act to regulate processes in the courts of the United States, the forms of writs and executions, except their style and modes of process then used in the supreme courts of the states, were adopted.

But it seems to me that there is an argument to be derived from the nature and character of the writ of mandamus and the legislation of Congress in relation to it which is of itself decisive against the power of the circuit court to issue it. It is declared by all the English authorities, from which in general our legal principles are drawn, to be a high prerogative writ. Accordingly, it issues in England only from the King's Bench, in which the King did formerly actually sit in person and in which, in contemplation of law, by his judges, he is still supposed to sit. It never issues but to command the performance of some public duty. Upon this principle, 5 Barn. & Ald. 899, the Court of King's Bench refused a mandamus to a private trading corporation to permit a transfer of stock to be made in its books, declaring that it was confined to cases of a public nature, and that although the company was incorporated by a royal charter, it was a mere private partnership. Upon the same principle, I believe that it may be affirmed without exception, unless where a statutory provision has been made, that in every state of the Union where the common law prevails, this writ issues only from the court possessing the highest original common law jurisdiction. The Congress of the United States adopted the same principle, and by the thirteenth section of the Judiciary Act of 1789 gave to the Supreme Court of the United States power in express terms to issue 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," thus covering the whole ground of this high prerogative writ. If, then, there ever were a case in which the maxim that expressio unius est exclusio alterius applied, this seems to me to be emphatically that case. It is of the nature of the writ, to be issued by the highest court of the government; the Supreme

Page 37 U. S. 651

Court is the highest, and accordingly to that Court the power to issue it is given. It is given in express words to that Court, and is not given in terms to any other court. It is given to that Court in express terms in the thirteenth section, and although not given in terms in the fourteenth section, immediately following, the power to issue it is attempted to be derived by implication from that section. And last but not least, where it is given, it is subject to no limitation but that it is to issue

"in cases warranted by the principles and usages of law, and may be issued to any courts appointed by or persons holding office under the authority of the United States,"

whereas in the fourteenth section, all the courts of the United States are empowered to issue certain writs, naming them, and then others, not naming them and not mentioning the writ of mandamus, which may be necessary for the exercise of their respective jurisdictions. Nor is the force of this argument at all weakened by the circumstance that this Court, in the case of Marbury v. Madison, 1 Cranch 137, declared that part of the Judiciary Act which empowered the Supreme Court to issue the writ of mandamus to be unconstitutional so far as it operated as an act of original jurisdiction. Because this case was decided nearly fourteen years after the law was passed, and we must construe the act as if it were all constitutional, because Congress certainly so considered it, and we are now inquiring into what was their intention in its various provisions, which can only be known by construing the act as a whole, embracing its several parts, of which the power in question was one. But if the other circuit courts of the United States under the powers given to them, cannot, as has been decided by this Court, issue the writ of mandamus, then the Circuit Court of this District cannot do it under the powers given to it, because its powers are the same with those of the others. For by the third section of the act establishing it, it and its judges are declared to have all the powers by law vested in the circuit courts and the judges of the circuit courts of the United States, and even supposing that to refer to the powers of the circuit courts as organized by the act of 1801, that does not vary them, because, by the tenth section of that act, those courts are invested with all the powers heretofore granted by law to the circuit courts of the United States -- that is, those by the Judiciary Act -- unless where otherwise provided by that act, and there is no pretense that there is any power given in that act, which affects this question. If then the jurisdiction and the powers of the circuit Court of this

Page 37 U. S. 652

District are the same with the jurisdiction and powers of the other circuit courts of the United States; and if, as has been solemnly decided by this Court, that jurisdiction and those powers do not authorize the other circuit courts to issue the writ of mandamus, it would seem to follow, as an inevitable consequence, that neither can the Circuit Court of this District issue that writ.

Finally it was argued that if all the other sources of power failed, there is a sufficient one to be found in that section of the act of 1801 establishing the Circuit Court of this District, by which it is enacted that the laws of Maryland as they now exist shall be and continue in force in that part of the District which was ceded by that state to the United States, &c. The argument founded upon this section is in substance this:

The laws of Maryland are declared to be in force in this part of the District; the common law of England constitutes a part of those laws; by the common law, in such a case as this, a writ of mandamus would lie; therefore, the Circuit Court of this District can issue a mandamus in this case. This part of the argument proceeds upon the principle that the adoption of the common law, per se, authorizes the issuing of the writ. But it must be remembered that the adoption of the common law here cannot give any greater power than the same common law would give to the courts of Maryland, from which state it is adopted. Now in McCluny v. Silliman it was decided that a state court could not issue a mandamus to an officer of the United States; consequently it follows that no court in Maryland could have issued the writ in this case, and yet the argument which I am now considering seeks to maintain the position that whilst it is conceded that a Maryland court, with the common law in full force there, could not have issued this writ, the Circuit Court of this District has the authority to do so by reason of the adoption of that very law which would not give the authority to do it there.

It does seem to me that to state this proposition is to refute it. The object of this provision appears to me to have been plainly this: that the citizens of that part of this District, which formerly belonged to Maryland, should notwithstanding the cession continue to enjoy the benefit of the same laws to which they had been accustomed, and that in the administration of justice in their courts, there should be the same rules of decision, thus placing the citizens of this District substantially in the same situation in this respect as the citizens of the several states, with this difference only -- that

Page 37 U. S. 653

whilst in the states there are federal and state courts, in the one or the other of which justice is administered according to the character of the parties and other circumstances, in this District, by its judicial organization, the same justice which in the states is administered by the two classes of courts is here dispensed by the instrumentality of one court, viz., the Circuit Court of this District. But that, as in the states, the federal circuit court cannot issue the writ of mandamus, because the jurisdiction and powers given to them by Congress do not authorize it; so here, the Circuit Court of this District cannot issue it, by virtue of the jurisdiction and powers given to it by Congress (exclusively of the adoption of the laws of Maryland) because, exclusively of those laws, its jurisdiction and powers, as I think I have shown, are neither more nor less, in reference to this subject, than those of the other circuit courts of the United States. And as in the states the state courts cannot issue it, although the common law is in force there, so the Circuit Court of this District cannot issue it, although the common law, by the adoption of the laws of Maryland, is in force here, it being in my opinion impossible to maintain the proposition that the adoption of the common law here can impart a greater authority than it does to the courts of the very state from which it was adopted.

The result of that adoption as it regards this question may, as it seems to me, be summed up in this one conclusion: that as in Maryland the common law is in full force which authorizes the writ of mandamus, and yet a Maryland court can only issue it to a Maryland officer, and not to an officer of the United States, so here, the same common law, upon the same principles, would authorize the Circuit Court of this District to issue the writ to an officer of the District of Columbia, the duties of whose office pertained to the local concerns of the District, but not to an officer of the United States.

Under every aspect in which I have viewed the question, I feel a thorough conviction that the Circuit Court of this District had not power to issue the writ in question, and consequently I am of opinion that the judgment demanding a peremptory mandamus should be reversed.

MR. JUSTICE CATRON concurred in opinion with THE CHIEF JUSTICE and MR. JUSTICE BARBOUR.

* I derive my knowledge of the fact that the Lord Proprietary sat in person in the provincial court from a manuscript work of much value by J. V. L. McMahon, Esquire, whose History of Maryland from its first Colonization to the Revolution, is well known to the public.