UNITED STATES ex rel. STOKES et al. v. KENDALL, 26 F. Cas. 702

CRANCH, Chief Judge, delivered the opinion of the court upon the petition for a writ of mandamus. The material facts stated in the affidavit upon which the rule was founded, are substantially as follows: By the act of congress of the 2d of July, 1836 (6 Stat. 665), “for the relief of William B. Stokes. Richard C. Stockton, Lucius W. Stockton, and Daniel Moore,” the solicitor of the treasury was authorized and directed to settle and adjust their claims for extra services as contractors for carrying the mail under certain contracts made with them by Mr.

Berry, the late postmaster-general; and for that purpose to inquire into and determine the equity of their claims for and on account of any contraet with the said postmaster-general on which their pay had been suspended by the present postmaster-general, and to make them such allowances therefor, as upon a full examination of all the evidence might seem right according to the principles of equity; “and 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 for or on account of any such service or contract.” The solicitor decided the sum of $161.563.89 to be due to them.

The postmaster-general has credited them with the sum of $122.101.46 only, and refuses to credit them with the residue of the sum so decided to be due to them, being $39,492.47.

These facts, not being denied, must, for the present, be taken to be true; and the first question is, whether this court, in such a case, has • power and authority to issue a writ of mandamus commanding the postmaster-general to credit the said mail contractors, Stockton, Stokes, and others, with the sum or sums of money decided by the solicitor of the treasury to be due to them for and on account of the services or contracts mentioned in the said act of congress of the 2d of July, 1836 (6 Stat. 665). The duty of the postmaster-general under that act is clear and absolute, leaving him no discretion.

It is a duty, in the execution of which the private rights of individuals are concerned; and the party against whom the right is claimed is resident within this district and county. The right of the relators and the duty of the postmaster-general appearing to be clear and absolute, the question arises, do the laws afford a.remedy?

If this had been a case against a state officer, arising upon a statute of a state in which the common law of England had been adopted, it would be a clear ease for a mandamus, because the re-lators could not have any other specific remedy, nor any other remedy equivalent to a specific remedy, according to the forms of the common law. But it is suggested that this court has no power to issue a mandamus in such a case, because the other circuit courts of the United States have no such power; according to the decision of the supreme court of the United States in the cases of McIntire v. Wood, 7 Cranch [11 U.

S.] 504, and McClung v. Silliman, 6 Wheat. [19 U. S.] 598. To understand the opinions of the supreme court, in those eases, it may be necessary to state the language of the eleventh and fourteenth sections of the judiciary act of 1789 (1 Stat. 73), to which Mr. Justice Johnson, who delivered those opinions, refers.

The words of the eleventh section, so far as they relate to this subject, are, “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, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners; 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 words of the fourteenth

section are: “That all the before-mentioned courts shall have power to issue writs of scire facias, habeas corpus, and all other writs, not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.” The constitution of the United States (article 3. § 2) provides, that “the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States and treaties made, dr which shall be made, under their authority; to all cases affecting ambassadors,” &c.

The case of McIntire v. Wood [supra], came up to the supreme court of the United States from the circuit court of Ohio, upon a certificate stating that the judges of that court were divided in opinion upon the question whether that court had power to issue a writ of mandamus to the register of a land-office in Ohio, commanding him to issue a final certificate of purchase to the plaintiff for certain lands in that state. Mr.

Justice Johnson, in delivering the opinion of the supreme court of the United States, said: “This court is of opinion that the circuit court did not possess the power to issue the mandamus moved for. Independent of the particular objections which this case presents from its involving a question of freehold, we are of opinion that the power of the circuit courts to issue a writ of mandamus, is confined exclusively to cases in which it may be necessary for the exercise of their jurisdiction. Had the eleventh

section of the judiciary act covered the whole ground of the constitution, there would be much reason 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 th» United States; and the fourteenth

section of the same act would sanction the issuing of the writ for such a purpose; but although the judicial power of the United States extends to cases arising under the laws of the United States, the legislature has not thought proper to delegate the exercise of that power to its circuit courts, except in certain specified cases.” Here it is evident that the supreme court do not deny the power of the circuit courts to issue the writ of mandamus in some cases, but say that the power is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction.

If, then, a case should occur in which' a writ of mandamus should be necessary to the exercise of the jurisdiction of a circuit court of the United States, it would seem that that court might issue it. And the supreme court says, further, that “had the eleventh

section of the judiciary act covered the whole ground of the constitution,” that is to say, (as we understand the opinion,) that if that

section had given to the circuit courts cognizance of all cases in law and equity arising under the constitution and laws of the United States, “there would have been much reason for exercising this power in many cases;” “and the fourteenth section.” which gives them power to issue all writs necessary for the exercise of their jurisdiction, and agreeable to the principles and usages of law, “would sanction the issuing of the writ for such a purpose.” But congress, in giving jurisdiction to this court by the 5th

section of the act of the 27th of February, 1801 (2 Stat. 103), “concerning the District of Columbia,” has covered the whole ground of the constitution, and much more; with the exception of those cases only in which exclusive jurisdiction is given by the constitution or acts of congress, to the supreme court of the United States, or to the district courts of the United States.

With that single exception, this circuit court of the District of Columbia has cognizance of all cases in law and equity, whether arising under the constitution or laws of the United States, or under the adopted laws of Virginia and Maryland, with the only condition that one of the parties shall be resident, or found within the district. The words of that seetion (the fifth

section of the act of the 27th of February, 1801), are: “That the said court” (the circuit court of the District of Columbia) “shall have cognizance of all crimes and of-fences committed within the said district, and 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 he plaintiffs or complainants; and of all seizures on land or water; and all penalties and forfeitures made, arising, or accruing under the laws of the United States.” This court, therefore, is in that condition in which the supreme court, in the case of Mclntire v.

Wood, say, “there would be much reason for exercising this power in many cases wherein some ministerial act is necessary to the completion of an individual right under the laws of the United States; and the fourteenth

section of the judiciary act would sanction the issuing of the writ for that purpose.” Here is a case in which a ministerial act is necessary to the completion of an individual right .under the. laws of the United States. The right of the relators, and the obligation of the postmaster-general are clear and absolute. It is a case in law; and the only appropriate remedy is a writ of mandamus. This is the only judicial tribunal which can take original cognizance of the case and apply the proper remedy. How, then, can this court refuse it?

To refuse it would be a denial of justice If it be a case for a writ of mandamus, the relators are as much entitled to it as any other person would be entitled to a writ of capias in a common action of assumpsit against an individual. If the law gives them a right, it gives them a remedy in some form. The only question, then, is, what is the proper form? There are various writs to bring parties and their cases before the court. The selection of the writ depends upon the nature of the case.

Neither an action upon the case, nor of assumpsit, (if it could be maintained,) nor an indictment, could give the relators a specific remedy. Theix right might, perhaps, be tried in some such form of action, but it would not give them a specific remedy, nor a remedy which would be certainly adequate to a specific remedy. The proceeding by mandamus is a remedy given by that common law which was in force in Maryland and Virginia on the 27th of February, 1801. and continued in force in this district by the act of congress of that date, and which is still in force here.

If a case is made out, in which, according to that law, the proceeding by mandamus is the proper remedy, this court is bound to grant it. The supreme court, in the case of Marbury v. Madison, 1 Cranch [5 U. S.] 163. say: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws wlieneyer he receives an injury.” “One of the first duties of gov eminent is to afford, that protection. In • Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the third volume of his Commentaries (page 23), Blackstone states two cases in which a remedy is afforded by mere operation of law. ‘In all other cases,’ he says, ‘it is a general and indisputable rule, that where there is a legal right there is also a legal remedy by suit or action at law, whenever that right is invaded.’ And afterwards, in page 109 of the same volume, he says: T am next to consider such injuries as are cognizable by the courts of common law, and herein I shall for the present only remark that all possible injuries whatsoever that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right when withheld, must have a remedy, and every injury its proper redress.

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the’ laws furnish no remedy for the violation of a vested, legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case.

It behooves, then, to inquire whether there be, in its composition, any ingredient which shall exempt it from legal investigation, or exclude the injured party from legal redress.’ ” The chief justice then goes on to show that it was not a case of damnum absque injuria, and says: “Is it in the nature of the transaction?

Is the act of delivering or withholding a commission to be considered as a mere political act, belonging to the executive department alone, for the performance of which entire confidence is placed, by our constitution, in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy? That there may be such cases is not to be questioned: but that ever?' act of duty, to be performed in any of the great departments of government, constitutes such a case, is not to be admitted.

By the act concerning invalids, passed in June, 1794 [1 Stat. 392], the secretary at war is ordered to place on the pension list all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that where the law, in precise terms, directs the performance of

an act in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country? TVhatever the practice on particular occasions may be, the theory of this principle will certainly never be maintained. No act of the legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law.

After stating that personal injury from the king to a subject is presumed to be impossible, Blaekstone (volume 3, p. 255) says: ‘But injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; for whom, the law, in matters of right, entertains no respect or delicacy, but furnishes various methods of detecting the errors and misconduct of those agents, by whom the king has been deceived and induced to do a temporary injustice.’ By the act passed in 179G authorizing the sale of the lands above the mouth of Kentucky river ri Stat. 404], the purchaser, on paying his purchase-money, becomes completely entitled to the property purchased: and on producing to the secretary of state the receipt of the treasurer upon a certificate required by the law. the president of the United States is authorized to grant him a patent.

It is further enacted that all patents shall be countersigned by the secretary of state, and recorded in his office. If the secretary of state should choose to withhold this patent, or, the patent being lost, should refuse a copy of it, can it be imagined that the law furnishes to the injured person no remedy? It is not believed that any person whatever would attempt to maintain such a proposition. It follows, then, that the question, whether the legality of

an act of the head of a department be examinable in a court of justice, or not, must always depend upon the nature of the act. If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction. In some instances there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much difficulty in laying down the rule.

By the constitution of the United States the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders.

In such cases, their acts are his acts; and. whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being intrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer. as his duties were prescribed by that act, is to conform precisely to the will of the president.

He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts. But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot, at his discretion, sport away the vested rights of others.

The conclusion from this reasoning, is, that, where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear, than that their acts are only politically examinable.

But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of. his country for a remedy. “If this be the rule, let us inquire how it applies to the case under the consideration of the court. The power of nominating to the senate, and the power of appointing the person nominated, are political powers, to be exercised by the president, according to his own discretion.

When he has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case. If, by law. the officer be removable at the will of the president, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated; and, consequently, if the officer is by law not removable at the will of the president, the rights he has acquired are protected by the law, and are not resumable by the president.

They cannot be extinguished by executive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source. “The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority. If, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one, in consequence of which a suit had been instituted against him, in which his defence had depended on his being a magistrate, the validity of his appointment must have been determined by judicial authority.

So, if he conceives that, by virtue of his appointment, he has a legal right either to the commission which has been made out for him. or to a copy of that commission, it is equally a question examinable in a court, and the decision of the court upon it, must depend on the opinion entertained of his appointment. That question has been discussed, and the opinion is, that the latest point of time which can be taken as that at which the appointment was complete, and evidenced, was when, after the signature of the president, the seal of the United States was affixed to the commission.

It is, then, the opinion of the court:

(1) That by signing the commission of Mr. Marbury, the president of the United States appointed him a justice of peace for the county of Washington, in the District of Columbia; and that the seal of the United States, affixed thereto by the secretary of state, is conclusive test! mony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years.

(2) That, having his legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy. It remains to be inquired whether,

(3) He is entitled to the remedy for which he applies. This depends on,

(1) The nature of •‘he writ applied for; and.

(2) The power of this court. “1. The nature of the writ. “Blackstone, in the third volume of his Commentaries (page 110), defines a mandamus to be ‘a command issuing in the king’s name from the court of king’s bench, and directed to any person, corporation, or inferior court of judicature within the king’s dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king’s bench has previously determined, or at least supposes to be consonant to right and justice.’ Lord Mansfield, in 3 Burrows, 1206, in the case of Rex v.

Barker, states, with much precision and explicitness,' the cases in which this writ may be used. ‘Whenever,’ says that very able judge, ‘there is a right to execute an office, perform a service, or exercise a franchise, (more especially if it be in a matter of public concern, or attended with profit.) and a person is kept out of possession, or dispossessed of such right, and has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order, and good government.’ In the same ease he says: ‘This writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.’ “In addition to the authorities now particularly cited, many others were relied on at the bar, which show how far the practice has conformed to the general doctrines that have been just quoted.

This writ, if awarded. would be directed to an officer of government. and its mandate to him would be, to use the words of Blackstone, ‘to do a particular thing therein specified, which appertains to his office and duty, and which the court has previously determined, or at least supposes to be consonant to right and justice.’ Or, in the words of Lord Mansfield, the applicant, in this case has a right to execute an office of public concern, and is kept out of possession of that right. These circumstances certainly concur in this case.

Still, to render the mandamus a proper remedy, the officer to whom it is to be directed, must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other specific and legal remedy. “

(2) With respect to the officer to whom it would be directed. The intimate political relation subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers pecuniarily irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation.

Impressions are often received without much reflection or examination, and it is not; wonderful that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should, at first view, be considered by some as an attempt to intrude into the cabinet, and to intermed-dle with the prerogatives of the executive. It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for a moment.

The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.

But, if this be not such a question; if, so far from being an intrusion into the secrets of the cabinet, it respects a paper which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents; if it be no intermeddling with a subject over which the executive can be considered as having exercised any control; what is there in the exalted station of the officer, which shall bar a citizen from asserting, in a court of justice, his legal rights, or shall forbid a court to listen to the claim, or to issue a mandamus, directing the performance of a duty, not depending on executive discretion, but on particular acts of congress, and the general principles of law?

If one of the heads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How, then, can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process?

It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined. When the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; ■it is again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation.

But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the president, and the performance of which the president cannot lawfully forbid, and therefore is never presumed to have forbidden-, as for example, to record a commission, or a patent for land, which has received all the legal solemnities; or to give a copy of such record; in such cases, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment, that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department. “This opinion seems not now. for the first time, to be taken up in this country.

It must be well recollected that in 1792,

an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him by the circuit courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but some of the judges thinking that the law might be executed by them in the character of commissioners, proceeded to act, and to report in that character.

This law being deemed unconstitutional at the circuits, was repealed, and a different system was established; but the question whether those persons who had been reported by the judges, as commissioners. were entitled, in consequence of that report, to be placed on the pension list, was a legal question, properly determinable in the courts, although the act of placing such persons on the list, was to be performed by the head of a department. That this question might be properly settled, congress passed

an act in February, 1793 (1 Stat. 333), making it the duty of the secretary of war. in conjunction with the attorney-general, to take such measures as might be necessary to obtain an adjudication of the supreme court of the United States, on tlie validity of any such rights, claimed under the act aforesaid. After the passage of this act, a mandamus was moved for, to be directed to the secretary at war, commanding him to place on the pension list, a person stating himself to be on the report of the judges.

There is, therefore, much reason to believe, that this mode of trying the legal right of the complainant -was deemed by the head of a department, and by the highest law officer of the United States, the most proper which could be selected for the purpose. When the subject was brought before the court, the decision was, not that a mandamus would not lie to the head of a department directing him to perform

an act, enjoined by law. in the performance of which an individual had a vested interest; but that a mandamus ought not to issue in that case; the decision necessarily to be made, if the report of the commissioners did not confer on the applicant a legal right. The judgment, in that case, is understood to have decided the merits of all claims of that description; and the persons, on the report of the commissioners, found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional, in order to place themselves on the pension list.

The doctrine, therefore, now advanced, is by no means a novel one. It is true that the mandamus, now moved for, is not for the performance of

an act expressly enjoined by statute. It is to deliver a commission; on which subject the acts of congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has. to that commission, a vested legal right, of which the executive cannot deprive him. He has been appointed to an office, from which he is not removable at the will of the executive; and being so appointed, he has a right to the commission which the secretary has received from the president for his use.

The act of congress does not, indeed, order the secretary of state to send it to him, but it is placed in his hands for the person entitled to it; and cannot be more lawfully withheld by him, than by any other person. It was, at first, doubted whether the action of detinue was not a specific legal remedy for the commission which has been withheld from Mr. Marbury; in which case a mandamus would be improper. But this doubt has yielded to the consideration that the judgment in detinue is for the thing itself, or its value.

The value of a public office not to be sold, is incapable of being ascertained; and the applicant has a right to the office itself, or to nothing. He will obtain the office by obtaining the commission, or a copy of it from the record. This, then, is a plain case for a mandamus.” From a consideration of the opinions of the supreme court in the cases of Marbury v. Madison, McIntire v. Wood, and McClung v.

Silliman [supra], we can have no hesitation in saying that the relators have made out a case, in which, according to the principles and usages of law, a writ of mandamus is the proper remedy, and that it is necessary to enable this court to exercise its jurisdiction in that case. But although we have shown, as we think, that, even under the opinion of the supreme court, in McIntire v. Wood, this court has power to issue the writ of mandamus, in this case, yet it may possibly be objected that our argument is founded upon inferences drawn from the language of that opinion; which inferences Mr.

Justice Johnson, in the case of McClung v. Silliman, 6 Wheat. [19 U. S.] 598, repudiates. The only point decided in that case was, that “a state court cannot issue a mandamus to an officer of the United States.” But Mr. Justice Johnson, in delivering the opinion of the court in that case (page 599), said: “In the case of McIntire v. Wood, decided in this court in 1813, the mandamus contended for was intended to perfect the same claim, and in point of fact, the suit was between the same parties.

The influence of that decision on these cases, is resisted on the ground that it did not appear in that case that the controversy • was between parties, who, under the description of person, were entitled to maintain suits in the courts of the United Staes; whereas the averments, in the present cases, show that ■the parties litigant are citizens of different states, and therefore competent parties in the circuit court. But we think it perfectly clear, from an examination of the decision alluded to, that it was totally uninfluenced by any considerations drawn from the want of personal attributes of the parties.

The case came up on a division of opinion, and the single question stated is, whether the court had power to issue a writ of mandamus to the register of a land-office in Ohio, commanding him to issue a final certificate of purchase to the plaintiff, for certain lands in the state? Both the argument of counsel, and the opinion of the court, distinctly show that. the power to issue the mandamus, in that case, was contended for as incident to the judicial powers of the United States.

And the reply of the court is, that though, argumenti gratia, it 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 if the inference be admitted, as far as the judicial power of the court actually extends, still cases arising under the laws of the United States, are not per se among the cases comprised within the jurisdiction of the circuit court under the provisions of the 11th

section of the judiciary act of 1789 (1 Stat. 73); jurisdiction being in such cases reserved to the supreme court, under the 25th section, by way of appeal from the decisions of the state courts. There is, then, no just inference to be drawn from the decision in the case of Mclntire v. Wood, in favor of a case in which the circuit courts of the United States are vested with jurisdiction under the 11th section.

The idea is in opposition to the express words of the court, in response to the question stated, which are, ‘that the circuit court did not possess the power to issue the mandamus moved for.’ "It is now contended that as the parties to this controversy are competent.to sue under the 11th section, being citizens of different ■states, this is a case within the provisions of the 14th section; and that the circuit court was vested with power to issue this writ under the description of ‘a writ not specially provided for by statute,’ but ‘necessary for the exercise of its jurisdiction.’ The case certainly does present one of those instances of equivocal language, in which the proposition, though true m the abstract, is, in its application to .the subject, glaringly incorrect.

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. It must exercise this power, and compel the emanation of the legal document, or the execution of the legal act by the register of the land-office, or the party cannot sue. The 4th

section of the act under consideration, could only have 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 of right.” As far as we can understand this argument of Mr.

Justice Johnson, which probably would have been more intelligible if the arguments of the counsel had been reported, he places the decision of the court, In the case of McIntire v. Wood, upon the ground that the controversy between the parties was a case arising under the laws of the United States, which would, per se, have been a good ground of jurisdiction in the circuit courts, if it had been given to those courts by the 11th

section of the judiciary act of 1789; but as it was not so given, they had not jurisdiction; and therefore they had not the power to issue the mandamus in that case. And from that decision, he says, as we understand him, it cannot be inferred that, if, in a like case, the controversy should be between citizens of different states (which would be a case in which the circuit court would have jurisdiction under the 11th

section of the judiciary act of 1789), the court would have power to issue the writ of mandamus. Whether we have, or have not, however, understood that opinion correctly, we do not deem of much importance in this case, because, as observed before, this court has cognizance of all cases in law and equity, however arising, between parties, both or. either of which are resident, or found within this district. Our powers are given by the 3d and our jurisdiction by the 5th

section of the act of the 27th of February, 1801. By the third

section it is enacted “that there shall be a court in the said 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 vested in the circuit courts, and the judges of the circuit courts of the United States.” The only circuit courts, and judges of the circuit courts of the United Staes, then existing, were those ordained and established by the act of congress of the 13th of February, 1801 (2 Stat. 89), by the 10th

section of which they were invested with all the powers theretofore granted by law to the circuit courts of the United States, unless where otherwise provided for by that act. And by the 11th

section it was enacted, among other thing's, that the said courts respectively should have cognizance of all crimes and offences cognizable under the authority of the United States, and committed within their respective districts, or upon the high seas, ‘‘and also all cases in law or equity arising under the constitution and laws of the United States, and treaties made, or which may be made, under their authority.” “And also of all actions or suits, matters or things cognizable by the. judicial authority of the United States, under and by virtue of the constitution thereof, where the matter in dispute shall amount to 8400, and where original jurisdiction is not given, by the constitution of the United States, to the supreme court thereof, or exclusive jurisdiction, by law, to the district courts of the United States.” It is evident that this

section “covered the whole ground of the constitution;” so that, if it had been in force when the case of Mclntire v. Wood arose, the decision in that case would probably have been different. Although the act of February 13, 1801, was repealed by the act of 1802, yet the repeal did not in any manner affect the powers or jurisdiction of this court, given by the act of February 27, 1801 (2 Stat. 103). But this court has a jurisdiction still more extensive than that which was given by the act of the 13th of February, 1S01; and if the jurisdiction given by the 11th

section of that act would have justified the court in issuing the mandamus under the 14th

section of the judiciary act of 1789, & fortiori will the jurisdiction given to this court, by the 5th

section of the act of the 27th of February, 1801, justify this court in issuing it. In the opinion of the supreme court in McClung v. Silliman [supra], Mr. Justice Johnson sems to have supposed that it was not sufficient that the writ of mandamus should be necessary for the exercise of its jurisdiction in the mandamus ease itself; but that it must be necessary for the exercise of its jurisdiction in some ulterior suit. He says (page 601): “It cannot be denied that the exercise of this power” (meaning the writ of mandamus), “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. It must exercise this power” (that is, issue the writ), “and compel the emanation of the legal document, or the execution of the legal act by the register of the land-office, or the party cannot sue.” Although in the case of McClung v. Silliman, the mandamus might have been asked, for the purpose of obtaining a document necessary to the prosecution of another suit, yet it cannot be necessary, in all cases, that the mandamus should be merely an ancillary proceeding, with a view to an ulterior action.

In the greater number of cases, the remedy by mandamus is final; and the court must have jurisdiction of the ease stated as the cause for issuing the writ, before it can be lawfully issued. The court must possess the jurisdiction before they can exercise it. The court exercises its jurisdiction when it calls the parties before it. If B., a resident of this district, is indebted to A., upon a promissory note, this court has jurisdiction of the case. To enable the court to exercise its jurisdiction in the case, some kind of writ is necessary. A capias is the usual writ.

Brit it is only because it is a “writ necessary for the exercise of its jurisdiction” in that case,, that the court is authorized to issue it; for it is not specially given by the 14th

section of the judiciary act, which is the only authority for issuing it. But it is one of the writs not specially provided for by statute; and it is a writ agreeable to the principles and usages of law, and necessary for the exercise of the jurisdiction of the court in the given ease, and therefore the court may issue it. Cases of mandamus stand exactly on the same footing. The court has no more authority for issuing a capias, than for issuing a mandamus.

It surely cannot be that a court can only isue a writ of mandamus because it has not jurisdiction, or for the purpose of creating a jurisdiction which did not exist before. It must be that we have misunderstood the language of the opinion; and We are the more inclined to think so, because, in the next sentence, the judge says: “The 14th

section of the act under consideration could only be 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.” And again, in page 004, he says: “But when in the cases of Marbury v. Madison, and Mclntire v.

Wood, this court decided against the exercise of that power, the idea never presented itself to any one 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.” By which we suppose we are to understand that, when, in the case of Marbury v. Madison, the supreme court refused to issue the writ of mandamus because it would have been an exercise of original jurisdiction not warranted by the constitution; and when in the case of McIntire v.

Wood, the court decided against the exercise of the power, by the circuit court, to issue the writ, because congress had not conferred upon the circuit court all the jurisdiction. which it was authorized by the constitution to confer, no one supposed that the power was not within the scope of the judicial powers granted to the general government; and we are still left to infer, that if congress had conferred on the circuit courts all the jurisdiction which they might constitutionally have conferred, there could be no doubt of the power of the circuit court to issue the writ, under the power given in the 14th

section of the judiciary act of 1789. As the postmaster-general has not thought proper to appear to show cause why the writ of mandamus should not issue, the court will consider such objections as occur to them as being possible to be suggested.

If it should be said that if every neglect of duty by a public officer, by which an individual suffers an, injury, is to be the subject of a mandamus, it will become the common mode of redress in such cases, and the officers of government may be harassed; we answer that every public officer who neglects or refuses to perform a mere ministerial duty, whereby an individual is injured, is legally responsible to that individual in some form or other; and a mandamus is one of the mildest forms of action which can be used; as it supposes that the duty may still be performed; and as it does not subject the officer to pecuniary damages, and is one of the best forms in which the right of the supposed injured party may be tried.

As it can be used only in cases where a duty is to be performed, and where it is still in the power of the officer to per-' form it, the cases cannot be very numerous, and the officers will be less harassed by this form of action than by the other usual forms of action which are generally commenced by the severe process of personal arrest.

If it be said that a mandamus, commanding the postmaster-general to pay, as well as to credit, the sum awarded by the solicitor of the treasury, would be the means of compelling the United States to pay money by legal process, without previous appropriation by law. the court will take further time to consider, as we have doubts whether the mandamus should now go to that extent.

A doubt has been suggested “whether any portion of the judiciary of the United States, and much more, whether a court established in this district, for purposes entirely local, could constitutionally inquire into the official conduct of the president or heads of departments, who are responsible through the process of impeachment, with the view to control them in their ministerial functions.” In answer to so much of this objection a» regards the other portions of the judiciary of the United States, we refer to the decision of the supreme court in the case of Marbury v.

Madison, as delivered by the late Chief Justice Marshall, and which has been before cited. With regard to the suggestion that the circuit court, established in this district, is for purposes entirely local, the fact is not so. This court has all the jurisdiction which any other circuit court of the United States can have in its circuit, and much more.

It is the court which the legislature of the United States has thought proper to ordain and establish as one of the courts inferior only to the supreme court of the United States, and to which it has confided the administration of those laws on which depends the protection of the lives, the personal liberty, and the property of the president, vice-president, heads of departments, and other officers of the government, foreign ministers and strangers visiting the seat of government, as well as of the citizens and inhabitants of the district.

This court has power to call before it every person found in the district, from the highest to the lowest; and it is upon this power that they all depend for that protection which the law extends over them. If there is any officer of government in the district too high to be reached by the process of this court, then there is no legal security here for our lives, our liberty, or our property.

If this court cannot “inquire into the official conduct of the president, or heads of departments,” “with a view to control them in their ministerial functions,” it is not because this court is established m this district “for purposes entirely local.” The suggestion that the president and heads of departments are not responsible, except by impeachment, for the exercise of their ministerial functions, seems to imply that the post1 master-general, like the heads of departments, may shelter himself under the authority or command of the president.

But if they can do it, in a case like the present, where the duty is expressly enjoined by

an act of congress, this officer cannot do it; for his relation to the president is very different from theirs. They, in the very terms by which their offices were created and their duties defined, are to perform such duties and execute such orders as they shall be required to perform and execute by the president of the United States The secretary of the treasury, however, may possibly stand in a different relation to the president, as his duties are better defined by law. and as there is a direct communication, established by law, between him and the legislature, without the intervention of the president; but still he is bound by the second

section of the act of the 2d of September. 1789, “generally to perform all such services, relative to the finance, as he shall be directed to perform.” The act does not say by whom he may be thus directed; if by the president, then his relation to the president is the same as that of the other heads of departments. The postmaster-general, howevei, clearly bears no such relation to the president.

We cannot find a word in the law under which he was appointed, or in the various laws respecting the post-office establishment, or in the constitution of the United States, which intimates any connection between him and the president; or any authority in the president to prescribe his duties, or to control him in the exercise of his official functions. It is true that he is appointed, and therefore may he removed, by the president. Bu* the president, if he has the power to control him, can only do it through his fear of removal.

If he should so control him, no act done by him under that control, could be thereby justified. The postmaster-general, in the exercise of the duties of his office, appears to be legally as independent of the president as the president is of him. There can. therefore, be no pretence for avoiding responsibility under any order of the president, nor for showing the irresponsibility which may be supposed to belong to that high officer.

In what cases public officers are responsible to individuals for their official acts, or for the neglect of their official duties, is shown very clearly in the opinion of the supreme court of the United States in the case of Marbury v. Madison, already cited.

We have thus endeavored to answer all the objections which have occurred to us as likely to be made; and our opinion upon the whole case, after the best and most anxious consideration, with a desire and determination to do justice between the parties, according to the best of our judgment and ability, is, that the refusal of a public officer, resident in this district, to do a ministerial act which, by law, he is positively commanded to do, whereby an individual is deprived of his right, is a case, either in law or equity, of which this court has cognizance, by virtue of the fifth

section of the act of the 27th of February, 1801, “concerning the District of Columbia.” That the only adequate remedy, in the case presented to us, is a specific remedy; and that the only specific remedy is a writ of mandamus; which is a writ “agreeable to the principles and usages of law,” and is “necessary for the exercise of the jurisdiction” of this court, in the case before us.

If this court has not jurisdiction of the case, no court has; and an individual who may have been ruined by the refusal of an officer to perform a ministerial act, positively enjoined upon him by law, will be entirely without redress. Neither an impeachment nor an indictment could restore to him his lost rights; and in an action upon the case he could only obtain judgment for damages, which the officer might be wholly unable to pay.

The court will order a writ of mandamus to be issued, commanding the postmaster-general to credit the relators with the balance remaining due to them according to the award and report of the solicitor, unless the ■postmaster-general shall show cause to the contrary on or before the tenth day of June instant. The question whether a mandamus shall issue -commanding him to pay the balance, may be reserved for further consideration, when the result of the mandamus to credit the balance shall be ascertained. The mandamus nisi, was accordingly issued and served on the 7th of June. On the 10th of June, Mr.

Key, attorney for the United States for the District of Columbia, stated to the court that Mr. Kendall was preparing a paper to be laid before the court. That he had been unwell, and wished time till the 17th, which the court granted. Mr. Coxe, for the relators, suggested that an appearance for the postmaster-general should be entered; but the court said they could not permit his appearance to be entered until he had returned the writ. On the 17th, Mr.

Key, in behalf of the postmaster-general, asked for further time until the 24th, and laid before the court the following letter: “Post-Office Department, June 17, 1837. F. S. Key, Esq., United States District Attorney. Sir—You were kind enough, at my request, to induce the circuit court for this district, to suspend proceedings for a few days in the case of their mandamus against me, as postmaster-general, to give time to prepare my reasons for declining to comply with their command.

Every day’s inquiry and consideration magnifies the importance of the principles involved in this proceeding, and tends to the conclusion that it necessarily brings into discussion the constitutional and legal powers of two separate and independent departments of the government.

As the question interests every executive officer residing within the district, as well as myself, and affects the character of the entire executive department, I have not deemed it right to suffer myself to be governed altogether by my own impulses or opinions, and have taken the advice, as well of my official superior, as of the constitutional law officer of the government in relation to my duty to appear before the circuit court.

It is their opinion that an appearance, with the avowed and sole object of contesting the jurisdiction of the court, compromits no principle involved in the controversy, and is a proper mode of. resistance to the claims of power set up in this case. You are therefore requested and instructed to appear in the court in my behalf as postmaster-general, distinctly announcing to the court that you do so only for the purpose of contesting their jurisdiction; and that you are expressly instructed not to plead to, argue, or notice as counsel any point or fact in the case which does not affect that question.

You are aware that incessant devotion to the subject during the time allowed, has not enabled me to prepare the materials necessary to exhibit the grounds on which I disclaim the jurisdiction of the court over the postmaster-general, or any other executive officer acting in his official capacity.

It cannot be the wish of the court to precipitate their action in any case, and least of all in one of high constitutional law affecting their own rights and powers, as well as those of another department of the government; and I leave it with you to suggest such further delay as may seem to you. with your present knowledge of the matter, to be necessary to complete the preparation of the case. With high respect, your obedient servant, Amos Kendall, Postmaster-General.” The court granted further time until the 24th of June to return the mandamus.

On that day the mandamus nisi was returned, with the following paper, by way of showing cause why a peremptory mandamus should not be issued: “To the Hon. William Oranch, Chief Justice of the Circuit Court for the District of Columbia. On the 7th instant the undersigned received by the hands of the marshal of the District of Columbia, a writ of mandamus from the circuit court of the district, commanding him to credit Messrs.

Stockton and Stokes and others, with a certain sum of money awarded to them by the solicitor of the treasury by virtue of authority alleged to be vested in him by a certain act of congress for their relief, passed on the 2d day of July, 1836, to show cause why he has not so done as commanded. The undersigned is unable to persuade himself that the performance of the act commanded would not, under existing circumstances, involve a violation of the oath he has taken, faithfully to discharge the duties of postmaster-general according to la.w; and to support the constitution of the United States.

Although his opinion of the powers and jurisdiction of this court remains unchanged, yet that respect for the tribunal, which elicited his former communication, duty, to himself, and the obligations he is under to vindicate and sustain the institutions of his country, impel him to present the reasons which have induced his present determination.

Before he proceeds with that exposition, he begs leave emphatically to disavow all intention or idea of claiming irresponsibility or immunity in the discharge of his official functions, or of shrinking from the most scrutinizing investigation by any legitimate authority, into his actions or his motives. It is his pride to belong to a republic where no man is free from responsibility, however high, and where none is without protection or redress, however low. As a citizen it is his aim to perform his domestic and civil duties with strict regard to morality and law.

As a public officer it is his most anxious endeavor to discharge every duty, which may be imposed upon him, with fidelity and zeal; in all capacities to encounter labor with patience, and responsibility without fear. If, in the attitude he now occupies in relation to this court, there is that which every sensitive man would wish to avoid, he is sustained by a consciousness of right, under which circumstances cease to be painful and consequences become indifferent. “With these preliminary remarks, the undersigned .proceeds to give his reasons for declining obedience to the order of the court. “First reason.

It is doubted whether the constitution of the United States confers on the judiciary department of the government authority to control the executive department in the exercise of its functions of whatsoever character.

In the division and separation of powers the constitution of the United States uses the following language, namely: ‘All legislative powers, herein granted, shall be vested in a congress of the United States.’ ‘The executive power shall be vested in a president of the United States.’ .‘The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish.’ It gives the president power, by and with the advice and consent of the senate, to appoint ‘judges of the supreme court; and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law,’ &c., and makes it his duty to ‘take care that the laws be faithfully executed.’ It is declared that the president, vice-president, and all civil officers of the United States shall be removed from office ‘on impeachment for, and conviction of treason, bribery or other high crimes and misdemeanors.’ And so careful is the constitution to give the judiciary no control over the executive' department, that, instead of subjecting executive officers to the courts for official offences and delinquences, it constitutes a special tribunal, in the senate, for their trial in all cases of impeachment.

The plan of the constitution will be more clearly understood, by a brief reference to the history and nature of the executive and judicial powers as they exist in our government. In the country from which the principles of our system of government are measurably derived, the judiciary originally formed a part of the executive power. An exposition of the law is frequently necessary before it can be understandingly executed, and the judges were appointed by the king to give it. When given, he proceeded to carry it into execution.

Over that execution the judges had no power; it being effected by sheriffs, another set of officers wholly dependent on the king. To shield the subject from regal oppression the judges were finally made independent of the king, though removable by parliament; but the sheriffs were still left at the’monarch’s will. The expounding functionary was rendered independent; but the execution was still left to the king. In our system we have followed the modern English model.

Our judges, after appointment, are independent of the executive; but our district attorneys, who manage prosecutions, and our marshals, who execute the decisions, orders, and decrees of our courts, are not only appointed by the president, but hold their offices, from day to day, at his will. They are the instruments by which the president ‘takes care that the laws be faithfully executed,’ as expounded by the courts. The sole constitutional function of the judges is to expound the laws. It is the function and duty of the executive to see them faithfully executed.

The necessity of a judiciary department arises solely from the impracticability of so framing the laws as exactly to fit every case which may arise in the endless diversity of human affairs. If the laws could be precisely adapted .to every case there would be no necessity of a judiciary to expound them. The executive authority could proceed forthwith to carry them into execution. But most general, and some special laws require exposition before they can be understandingly executed. This is the judicial function. It is to declare what the law is and apply it to the ease.

When that is done the proper function of the judge ceases, and that of the executive commences. The duty of the marshal who is but a part of the executive department, is to execute the law as thus expounded. Many special laws are not susceptible of any exposition. They apply directly to the case, and cannot be made plainer by any court. Nothing is needed, after their passage, but execution. Such are laws which appropriate sums of money to individuals; such are laws which require specific acts of executive officers.

The intervention of the expounding function is not necessary in these cases, because it can make them no plainer. All that is to be done is to execute them. The officers who are to perform the duties enjoined are all made dependent on the will of the president, directly or indirectly, that he may, through his power over them, ‘take care’ that each executes the laws in his appropriate sphere. “A distinction has been taken between those laws which prescribe special duties to executive officers and those which do not.

It is said, the courts' may compel the execution of the duties prescribed in the former, but not those prescribed in the latter. No such distinction is to be found in the constitution. It is the duty of the president to •take care that the laws be faithfully executed;’ special laws as well as general; but no such duty is enjoined upon the judiciary. The means furnished to the president, to cause the execution of the special laws, are more immediate and direct than those furnished him for the execution of the general laws. Does a special law require the head of a department to pay a sum of money?

The officer, whose peculiar province it is to execute the law, is under the immediate eye of the president, holds office at his will, and may be removed if he refuses. So of the comptrollers, auditors, treasurer, register, commissioners of the land-office, of patents, of pensions, of Indian affairs, and the whole corps of executive officers at Washington. And the same principle embraces all executive officers throughout the Union. The executive power is one; one in principle, one in object. Its object is the execution of the laws.

It is not susceptible of subdivisions and nice distinctions as to its duties and responsibilities. To execute the laws, and all the laws, are its duties; and it is responsible for their faithful performance. The practical exercise of executive power is more remote in cases which go before the judicial tribunals; but it is the same in principle. The district attorneys hold their offices at the will of the president, as also do the marshals. It is not the behest of the judge that the marshal executes, but the law, passed by congress, which the judge has merely expounded and applied to the case.

It is the one executive power of the republic, the president of the United States, through an officer holding office at his will, which steps in to execute the law when the judge has declared what it is and how it applies to the case. Laws, which require no exposition, are executed without the intervention of the judicial power. Laws which require exposition are executed after that exposition has been given by the judicial power; but in both cases the execution is. or should be, according to the constitution, exclusively the work of the executive.

Over cases where the law prescribes special duties to executive officers, as such, in terms so plain as to admit of no exposition, their power does not extend. For instance: the law directs the president to cause ¡¡550,000 to be paid to a merchant whose ship has been bought for the naval service. Here no judge could expound the law more clearly than the legislature has done it. The proper function of the judiciary cannot be called into requisition because there is no point upon which it can constitutionally act. Nothing is to be done but to execute the law.

The president diricts the fourth auditor to state an account; it is revised by the second comptroller; the secretary of the navy issues a requisition for a warrant; the secretary of the treasury issues a warrant, and the matter passes through the offices of the first comptroller, the register, and treasurer. These officers are all made dependent on the will of the president, that through them he may take care that all such laws be faithfully executed. Suppose one of them should be perverse and obstinate, and refuse to execute the law. what would be the appropriate remedy, and who shall apply it?

Could the merchant call on the courts to interfere when no expounding of the law is requisite? Or would he rather apply to the president, whose sworn constitutional duty it is to ‘take care that the laws be faithfully executed?’ Wouldhe not request the president to issue his mandamus to his perverse subordinate, directing him to execute the law; and, if he still refused, to remove him from office and give his place to some one who would do his duty? The law could thus be executed, and the citizen obtain his right. But suppose he goes to the judiciary for their mandamus, what will he ask them to do?

Will he request the judge to expound the law for him? That is not necessary, it is clear enough already; all he wants is the execution of the law. Will he ask the judges to execute the law, or to ‘take care that the law be faithfully executed?’ That is an executive function with which they have no right to interfere. Yet what else is the object of a mandamus in such a case? What is it but an executive measure; what else but taking the duties of the president out of his hands; what else but the assumption of a power which by the constitution belongs exclusively to another independent department of the government?

Let this doctrine be followed out, and to what will it lead? The constitution makes it the duty of the president to ‘commission all the officers of the United States,’ and the laws impose upon him many specific as well as general duties. The heads of departments have also many duties prescribed by law, special as well as general.

We have auditors to settle accounts, comptrollers to revise them, a treasurer to issue checks drawn upon warrants, a register to register accounts and warrants, commissioners of the land-office, of Xiatents, of pensions, and of Indian affairs, all of whom have specific as well as general duties, and all of whom have heretofore looked up to the president as their common superior; the head of the department to which they belong; to whom they are responsible, and whose duty it is to see that each of them faithfully executes the laws in his appropriate sphere.

But this doctrine gives a new superior; a superior above the. president, the highest representative of the majesty of the people, in this government; a superior who, in theory, may consign them all, from the heads of departments down to the messengers in the offices, to the county jail, if they refuse to regard the mandate of the court, in the performance of their executive functions.

Any item in an account, any specific act required by law, whether general or special. which can directly or indirectly affect a private right, (and there can scarcely be an executive act required by law which does not,) may be made the subject of the supervisory power; and the effective and controlling executive of this great republic will not be the chief magistrate elected by the people. but the three judges of the circuit court for the District of Columbia. But which would be the most effective in all such cases, the order of the president, or the mandamus of the judges?

The president could at once accomplish the object by the obedience or removal of his subordinate. The judges have no effectual means of executing the law. They might imprison the executive officer, but they could not remove him. Imprisonment might not accomplish the object. The court could not guide his hand nor control his will. If he were conscientious in' his refusal. or wished to appear so, no imprisonment. nor pains, nor penalties, could compel him to do

an act which in his opinion violated his oath of office. The whole power of the court would be impotent to control an honest man. The inadequacy of the judicial process, and the ample power vested in the president, are conclusive proof that the president and not the court was intended to be the controlling authority in all such cases. So far as regards their execution, no distinction is made by the constitution between special acts and general acts; between private acts and public acts. It is the duty of the president to take care that all alike ‘be faithfully executed.’ The executive is a unity.

The framers of the constitution had studied history too well to impose on their country a divided executive. The executive power was vested in a president. The executive officers are his agents, for whom he is held responsible by the people whose agent he is. The acts of the executive officers are the acts of the president. Constitutionally he is as responsible for them as if they were done by himself, though not morally. So far as regards the execution of the laws, therefore, no distinction can be maintained between acts of the president and those of his subordinate officers.

In law they are all acts of the president. When the judiciary. attempt to control those acts, they attempt to control the executive power, to assume the functions of the president, to make themselves the executive in the last resort, superior to the executive created by the constitution, and elected by the people. “Suppose the laws require a specific act of the president himself, involving private rights, which he refuses to perform. The courts have as much law for issuing a mandamus against him, as against any of his subordinates in a like case.

It is a ‘case’ as much as that of which the court has already assumed jurisdiction. The president disobeys their mandamus, and they send an attachment. By whom do they send it? By a marshal holding his office at the will of the president, who can strike their process dead in his hands, by dismissing him on the spot This fact proves the absurdity of the power assumed.

And that which the president can legally do. to protect himself, he can do to protect any of his agents, being always responsible to his country for the proper exercise of his power. “But suppose the court succeed in arresting the president and put him in the county jail. Where then is the supreme executive power of this great republic? Transferred from the president’s house to the city hall; from the chief magistrate, elected by the people of the whole United States, to three judges of the District of Columbia.

The arrest and imprisonment of any executive officer, as such, involves the same principles, and would lead to the same consequences, in a greater or less degree, according to the importance of the station held by him. It is still an attempt to control the executive power; not by confining- its head, but by ' tying up its hands; or rather by forcing the hands to work, not according to the will of their constitutional head, but in obedience to the will of another department of the government.

It is said that if the court has not this power, ‘an individual who may have been ruined by the refusal of an officer to perform a ministerial act, positively enjoined upon him by law, will be entirely without redress.’ If it were even so, would it justify the court in assuming executive authority in violation of the constitution? It would but prove a defect in our institutions, which it would be incumbent on the people to repair. But it is not so. The idea that courts are the only places where wrongs of all sorts are to be redressed, and judges the only dispensers of right, is an error.

Where the inferior executive officer, or even the president himself, refuses to perform his executive duties, there is an obvious mode of redress, without the interposition of the judicial authority. If a subordinate executive officer ‘refuse to perforin a ministerial act positively enjoined upon him by law,’ the injured citizen may appeal to the president, whose duty it is to ‘take care that the laws be .faithfully executed,’ and has power to turn out a perverse subordinate.

If the case be so very plain, the president will, at once, enforce the execution of the law, and the citizen will have effectual redress, though ‘this court has not jurisdiction.’ If the case be not so very plain, the matter may be referred back to congress, to make it plain by further legislation; and thus the citizen would have complete redress, without the aid of the court. There is a process by which the president himself may be reached, for a perverse refusal to execute the laws, or take care that they be executed, and a chief magistrate, who will do his duty, put in his place.

Thus are there ample means provided by the constitution to enable the citizen to obtain his rights at the hand of the executive without erecting any court into a supreme controlling power over the president and the whole corps of executive officers. Indeed the court has not, in the constitution and laws, the means to give redress in such cases. Before they can control the president, they must assume the power to appoint their own marshal and execute their own mandates. They must do more.

They must proceed to the executive offices; must enter credits with their own hands; must issue warrants; and finally, with their own hands, take the money out of the treasury. “The very case before the court illustrates the theory of the constitution. The postmaster-general refused to execute a part of the solicitor’s award, because he believed it contrary to law. Where did the relators first look for redress? Not to-the court, but to the president. The late president deemed the case a proper one for another application to congress for further legislation, and refused to compel an execution of the award.

The relators went to one house of congress and procured the passage of a resolution in their favor; but no legislation. The cause was then again pressed upon the late president, whose views of it remained unchanged. It was afterwards pressed upon the present president, who considered the disposition made of it by his predecessor as final, so far as the executive was concerned, unless there should be further legislation.

If the president, on either of these three occasions, had looked upon the law as clearly and imperatively commanding the payment of the money, he would have taken care to see it faithfully executed, and the relators would have had complete redress. If they had procured the passage of an explanatory act, or joint resolution, through both houses of congress, sustaining their construction of the law, or requiring payment of the balance of the award, their redress would also have been complete. These obvious constitutional and legal measures were resorted to by them; and it is only when they fail to obtain the

interpretation of legitimate authority, that they apply to a court to erect itself into a tribunal of appeal from another independent department of the government. Whether sound, or not, the views here expressed are not peculiar. Hr. Jefferson and Mr. Madison acted upon them when the former held the office of president and the latter that of secretary of state. Mr. Jefferson has left on record his views of the case of Marbury v. Madison, now relied upon by the court to sustain their claim to jurisdiction in this case.

The following is a letter addressed by him to George Hay, prosecuting attorney in the case of Aaron Burr, namely: “ ‘Washington, June 2d, 1807. To George Hay—Dear Sir; While Burr’s Case is depending before the court, I will trouble you from time to time, with what occurs to me. I observe that the case of Marbury v. Madison has been cited, and I think it material to stop, at the threshold, the citing that case as authority, and to have it denied to be law:

(1) Because the judges, in tlie outset. disclaimed all cognizance of the case; although they then went on to say what would have been their opinion had they had cognizance of it. This then was, confessedly, an extrajudicial opinion, and, as such, of no authority.

(2) Because, had it been judicially pronounced, it would have been against law; for to a commission, a deed, a bond, delivery is essential to give validity. Until, therefore, the commission is delivered out of the hands of the executive, and his agents, it is not his deed. He may withhold, or cancel it. at pleasure, as he might his private deed, in the same situation. The constitution intended that the three great branches of the government should be co-ordinate and independent of each other. As to acts, therefore, which are to be done by either, it has given no control to another branch.

A judge, I presume, cannot sit on a bench, without a commission, or a record of a commission; and the constitution having given to the judiciary branch no means of compelling the executive either to deliver a commission, or to make a record of it, shows it did not intend to give the judiciary that control over the executive, but that it should remain in the power of the latter to do it or not. Where different branches have to act, in their respective lines, finally and without appeal under any law, they may give to it different and opposite constructions.

Thus, in the Case of William Smith, the house of representatives determined he was a citizen; and in the Case of William Duane, (precisely the same in every material circumstance,) the judges determined he was no citizen. In the Cases of Callender and others, the judges determined the sedition act was valid under the constitution, and exercised their regular powers of sentencing them to fine and imprisonment.

But the executive determined that the sedition act was a nullity, under the constitution, and exercised his regular power of prohibiting the execution of the sentence, or rather of executing the real law which protecte

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