Lead Opinion
delivered the opinion of the court. — These suits were decided in the court of the United States for the second circuit and southern district of New York, in May term 1830. At the trial, the court gave opinions on several points of law, which were noted at the time, and a right to except to them reserved. According to the practice in New York, bills of exception were prepared by counsel in vacation, and tendered to the circuit judge for his signature. The bills comprehend not only the points of law
A doubt has been suggested, respecting the power of the court to issue this writ. The question was not discussed at the bar, but has been considered by the judges. It is proper that it should be settled, and the opinion of the court announced. We have determined, that the power exists. Without going extensively into this subject, we think it proper to state, briefly, the foundation of our opinion. In England, the writ of mandamus is defined to be,a command issuing in the king’s name, from the court of king’s bench, and directed to any person, corporation or inferior court of judicature, within the king’s dominions, requiring them to do some particular thing therein specified, which appertains to their office or duty, and which the court of king’s bench has previously determined, or at least supposes, to be consonant to right and justice. Blackstone adds, “that it issues to the judges of any inferior court, commanding them to do justice, according to the powers of their office, whenever the same is delayed. For it is the peculiar business of the court of king’s bench to superintend all other inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the crown or legislature have invested them ; and this, not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice.” 3 Bl. Com. 110.’
It is, we think, apparent, that this definition, and this description of the purposes to which it is applicable by the court of king’s bench, as supervising the conduct of all inferior tribunals, extends to the case of a refusal by an inferior court to sign a bill of exceptions, when it is an act which “ appertains to their office and duty,” and which the court of king’s bench supposes “to be consonant to right and justice.” Yet we do not find a case in which the writ has issued from that *court. It has rarely issued from any court; but there are instances of its being sued out of the court of *- chancery, and its form is given in the register. It is a mandatory writ, commanding the judge to seal it, if the fact alleged be truly stated : “ si ita est.”
There is some difficulty in accounting for the fact, that no mandamus has ever issued from the court of king’s bench, directing the justice of an inferior court to sign a bill of exceptions. As the court of chancery was the great officina brevium of the kingdom, and the language of the statute of Westm. II. was understood as requiring the king’s writ to the justice, the application to that court for the writ might be supposed proper. In 1 Sch. & Lef. *75, the chancellor superseded a writ which had been issued by the cursitor, on application ; declaring that it could be granted only by order of the court. He appears, however, to have entertained no doubt of his power to awrard the writ, on motion. Although the course seems to have been to
It is said by counsel, in argument, in Bridgman v. Holt, Show. P. C. 122, that by the statute of Westm. II., c. 31, in case the judge refuses, then a writ to command him, which is to issue out of chancery, quod apponat sigülum suum. The party grieved by denial, may have a writ upon the statute, commanding the same to be done, &c. “That the law is thus, seems plain, though no precedent can be shown for such a writ : it is only for this reason, because no judge did ever refuse to seal a bill of exceptions ; and none was ever refused, because none was ever tendered like this, so artificial and groundless.”
The judiciary act, § 13, enacts, that the supreme court shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction ; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding offices under the authority of the United States. A mandamus to an officer is held to be the exercise of original jurisdiction ; but a mandam-us to an inferior court of the United States, is in the nature of aPPe^ate jurisdiction. *A bill of exceptions is a mode of placing the -I law of the case on a record, which is to be brought before this court by a writ of error.
That a mandamus to sign a bill of exceptions is “ warranted by the principles and usages of law,” is, we think, satisfactorily proved by the fact, that it is given in England by statute ; for the writ given by the statute of Westm. II., is so, in fact, and is so termed in the books. The judiciary act speaks of usages of law generally, not merely of common law. In England, it is awarded by the chancellor ; but in the United States, it is conferred expressly on this court, which exercises both common law and chancery powers ; is invested witli appellate power, and exercises extensive control overall the courts of the United States. We cannot perceive a reason, why the single case of a refusal by an inferior court to sign a bill of exceptions, and thus to place the law of the case on the record, should be withdrawn from that general power to issue writs of mandamus to inferior courts, which is conferred by statute.
In New York, where a statute éxists, similar to that of Westm. II., an application was made to the supreme court for a mandatnus to an inferior court to amend a bill of exceptions, according to the truth of the case. The court treated the special writ given by the statute as a mandamus, and declared, that it was so considered in England ; and added, that “ though no instance appears of such a writ issuing out of the king’s bench, where an inferior court refused to seal a bill of exceptions, there is no case denying to that court the power to award the writ.” “ It ought to be used, where the law has established no specific remedy, and where in justice and good government there ought to be one.” “ There is no reason why the awarding of ■this particular writ does not fall within the jurisdiction of this court, or why it should be exclusively confined to the court of chancery.” In the opinion, then, of the very respectable court, which decided the motion made for a mandamus, in Sikes v. Ransom,
*We proceed to the inquiry, whether a proper case has been made out, on which the writ ought to be issued ? The affidavit of Mr. l Bronson, the attorney for the defendants in the circuit court, is the evidence on which the motion is to be sustained. He says, “ that the suits were tried, on a full understanding, that each party was to be considered as excepting to any decision or opinion of the said court which he might desire to review on a writ of error, whether such exception was formally announced at the trial or not; and it was also fully understood, in the event of verdicts for the plaintiff, that the deponent would, after the trials, prepare bills of exception, and carry the cases by writs of error to the supreme court of the United States.” The charge of the judge was formally excepted to, in one of the cases, before the jury left the bar. In the case of Nathaniel Crane, the counsel for each party submitted certain written points or questions of law for the decision of the court, which were decided ; after which, the presiding judge delivered a charge to the jury, in which he went at large into the law and facts of the case. In the case of Samuel Kelly, the counsel for the defendant submitted certain legal questions, growing out of the facts of the ease, and requested the court to decide them, before the cause should be argued to the jury ; to the end, that he might know what questions would be left to the jury. This was not done, and the cause was argued ; after which, the court delivered its opinion on the said questions of law, and then the presiding judge delivered a charge on the law and facts of the case. That, in each case, the decision of the proposed points of law consisted, as to most of the questions, in giving an affirmative or negative answer to the propositions ; but in the charge subsequently delivered in each case, the judge went at large into the law of the cases, and commented upon it to an extent and in a manner much more likely to impress the minds of the jury, than in the brief answers previously given. That in the judgment of the deponent, the remarks of the judge in his charge, did, in effect, present the law of the case to the jury, differently from what it had been given to them in answer to some of the points submitted ; and in such a manner that a full and fair review of the judgments of the circuit court cannot be had, without putting the charge in each case upon the "“record. He, there- p fore, in each case, inserted the substance of the charge in the bill of *- exceptions. That in the charge, the remarks of the judge upon the law and facts of each case wore so blended, that the deponent did not, and does not, believe it practicable, to separate the remarks upon the law from those upon the facts of the case, in such a manner as to give the defendants a full and fair opportunity to review the judgments of the circuit court.
The bills of exceptions, which had been offered, in December, to the presiding judge for his signature, were returned ; the whole of the charge in each case being stricken out. The subject was again brought before the judge, who returned the following answer to the application.
“ Dear Sir : — I have read the letter you put into my hands this morning, which you had received from Mr. Bronson, in relation to the bills of exceptions in the Astor causes. The charge, as contained in the bills of exception, was stricken out, in conformity to what I understand to be the rule laid down in the supreme court in the case of Carver. It purports to
The counsel for the defendants still insisted that the whole scope and bearing of the charge, rather than any particular expression in it, tended to lead the jury to a different result from what they would have been likely to attain from the law, as laid down in answer to the points made at the bar. He designed to complain, that, “ though it may not in terms have departed from the instructions given in answer to those points, yet it did so in effect.” *iq'7l *^e judg'e still refusing to sign the bill of exceptions containing the -* whole charge, this motion is made.
The affidavit of Mr. Lord, counsel for the plaintiff in the circuit court, is also exhibited. He states the proceedings at the trial. The counsel for the defendants requested the opinion of the court on various propositions of law, “ and the court did, then and there, in presence of the jury and of counsel, pronounce distinctly its opinion and decision upon every such proposition after which the judge proceeded to charge the jury on the evidence. After the conclusion of his remarks, in the case against Crane, some discussion arose between the defendants’ counsel and the court, in presence of the jury, in which some passages of the charge appearing not to have been rightly understood by the defendants’ counsel, or not to have been clearly stated, the court again stated to the jury its charge on the points thus stated anew. The bills of exception, prepared by the counsel for the defendants, were submitted to- the deponent, as counsel for the plaintiff, who objected to the insertion of the charge, and stated his reasons for the objection. The counsel on both sides attended the judge, who said, “that he considered that which in the bills of exceptions is called the charge, and which purports to contain all the remarks of the judge on the evidence, improper to be inserted in the bills of exception, and not permitted by law or the practice of the court; that it was incumbent on the party excepting, to specify the matters of law complained of, and that if anything could be specified, which was not expressed in the decisions aforesaid, of the points submitted (which decisions are stated in the bills of exception), he would allow the same to be exerted in the bills of exception ; but if that were not done, he should allow the amendment of the plaintiff, and the statement called the charge, to be stricken out.”
The judge then was willing to allow exceptions to his opinions on the questions of law which were made in the cause. He was also willing to sign exceptions to any matter of law advanced by him to the jury, which ' was not contained in the points reserved at the trial. The counsel for the *1 os! defendants insisted on spreading the whole charge upon the record. -* *It appears to be customary in New York, as in several other
In Carver's Case, 4 Pet. 80, this court said, “ we take this occasion to express our decided disapprobation of the practice (which seems of late to have gained ground) of bringing the charge of the court below, at length, before this court for review. It is an unauthorized practice, and extremely inconvenient both to the inferior and to the appellate court. With the charge of the court to the jury, upon mere matters of fact, and with its commentaries upon the weight of evidence, this court has nothing to do. Observations of that nature are understood to be addressed to the jury, merely for their consideration, as the ultimate judges of matters of fact; and are entitled to no more weight or importance, than the jury, in the exercise of their own judgment, choose to give them. They neither are, nor are they understood to be, binding upon them, as the true and conclusive exposition of the evidence. If, indeed, in the summing up, the court should mistake the law, that justly furnishes a ground foían exception ; but the exception should be strictly confined to that misstatement ; and by being made known at the moment, would often enable the court to correct an erroneous expression, or to explain or qualify it in such a manner as to make it wholly unexceptionable, or perfectly distinct. We trust, therefore, that this court will hereafter be spared the necessity of examining the general bearing of such charges.” After such an expression of the opinion of this court, it could not be expected, that a judge, on his circuit, would so ^utterly disregard it, as to allow an exception to .... his whole charge. If, however, the opinion be unsupported by lawr, it ought to be reconsidered and reversed.
■ At common law, a writ of error lay for error in law, apparent on the record, but not for an error in law, not apparent on the record. If a party alleged any matter of law at the trial, and was overruled by the judge, he was without redress, the error not appearing on the record. 2 Inst. 42. To remedy this evil, the statute was passed, which gives the bill of exceptions. It is to correct an error in law. . Blackstone, speaking of this subject, says, “ and if either in his directions or decisions, he (the judge) mistakes the law, by ignorance, inadvertence or design, the counsel on either side may require him publicly to seal a bill of exceptions, stating the point wherein he is supposed to err.” “This bill of exceptions is in the nature of an appeal.” 2 Bl. Com. 372. It is also stated in the books, that a bill of exceptions ought to be upon some point of law, either in admitting or denying evidence, or a challenge on some matter of law, arising upon a fact not denied, in which either party is overruled by the court. A bill of exceptions is not to draw the whole matter into examination again ; it is only for a single point, and the truth of it can never be doubted, after the bill is sealed. The judges in
The affidavit in support of the motion gives us the strongest reason for the course the mover has pursued, that the remarks of the judge upon the law and facts were so blended, that it was believed to be impracticable to separate the remarks upon the law from' those upon the facts of the *2001 case,, in such a *manner as to give the defendants a full and fair J opportunity to review the judgment of the circuit court. The difficulty, then, which appeared to the counsel to be insurmountable, must be overcome by this court. We must perform the impracticable task of separating the remarks on the law from those on the facts of the case, and thus draw the whole matter into examination again. The'inconvenience of this practice has been seriously felt and has been seriously disapproved. We think it irregular and improper. The motion is denied.
Notes
See Ex parte United States,
Dissenting Opinion
(Dissenting.) — The common-law definition of a mandamus, which is adopted in this court, is, “ a command issuing in the king’s name, from the court of king’s bench, and directed to any person, corporation or inferior court of judicature, within the king’s dominion, requiring them to do some particular thing therein specified, which appertains to their office or duty, and which the court of king’s bench has previously determined, or, at least, supposes, to be consonant to right and justice.” Marbury v. Madison,
As the first question which this motion presents is one of the jurisdiction and power of this court to grant the writ prayed for in this case, it will be following the rule established, to consider it first (3 Cranch 112 ; 5 Ibid. 221 ;
The judicial history of this court presents one instance of such a return, on its records, and another, in which the military force of a state was in actual array, in obedience to a law for opposing the execution of a mandate ; and a very recent occurence might have furnished a third incident, had not a writ of error abated by the death of the party suing it out. The proceedings which have attended the assertion of the unquestionable jurisdiction of the court over eases which, after having been discussed and considered in all their *bearings, have been solemnly decided, afford no uncertain indication of the results to be expected from the exercise of their L power, without discussion or inquiry into its existence, and over subjects on which it may, on examination, be found incapable of acting.
When questions of jurisdiction arise, they must be settled by a reference to the constitution and acts of congress. All cases embraced within the judicial power of the government, are capable of being acted upon by the courts of the Union. Those on which the original jurisdiction of this court can be exercised are defined, and cannot be enlarged.
These remarks are deemed proper, as there are some cases in which writs of mandamus have been issued, under circumstances such as have been refered to, or refused on the merits ; but “the question of jurisdiction was not moved, and still remains open,” according to the rule -laid down by this court in Durousseau v. United States,
These are the principles on which I shall examine the question of jurisdiction. The first inquiry then will be, has this court, by law, the power to issue a mandamus to a circuit court to sign a bill of exceptions, under the 13th and 14th sections of the judiciary act, which have been relied on as authorizing it ? So far as this act gives the power to issue a mandamus to executive officers, they have solemnly declared the law to be unconstitutional and void, and that the power does not exist. It being considered by the court to be an exercise of original jurisdiction, it remains to inquire, whether it can be issued to any courts appointed uftder the authority of the United States ; and if so, in what cases ?
This power is defined, in Marbury v. Madison,
This court, from its first organization until this time, have held that this enumeration of the cases in which it had appellate jurisdiction, was an exclusion of all others.
But where the law of 3 803 authorized a writ of error from the circuit to the district court, and omitted to provide one from this court to the circuit court, it was held not to be within its appellate jurisdiction (United States v. Goodwin,
These seem to me to be the only two cases in which the ^appellate jurisdiction of the supreme court can be exercised — appeals and writs of error. This corresponds with the definition given by the court itself, as as to its own powers, and the strict construction which they have (with the two excepted cases) given to the 22d and 25th sections, which are in their terms confined to final judgments and decrees of circuit and state courts, and these are the only cases, where this court have ever exercised appellate jurisdiction. They have uniformly refused, where the judgment or decree was not final (
The writ of mandamus contains no order to remove a cause or any proceedings therein to the court issuing it, nor has it that effect. The cause remains in the court below, whether the writ be obeyed or not; the sole object being to compel them to act on the matter themselves, not to remove it for revision. That can only be done by writ of error or appeal. These considerations make it evident, that the issuing a mandamus is not only not an exercise of appellate jurisdiction, but wholly different in its nature, object and effect. It was so considered in this court, in the case of McIntire v. Wood,
I think, then, that the issuing of a mandamus by this, or a circuit court, is not an exercise of appellate jurisdiction. There seems to be no judicial opinion in favor of the affirmative of the proposition, and the cases referred to have been decided on the true construction of the 13th section of the judiciary act, which declares, “ that the supreme court shall have appellate jurisdiction from the circuit courts of the several states, in cases specially hereinafter provided for.” This is a distinct clause, and does not include the power to issue a mandamus, as an act of appellate jurisdiction.
The next clause giving this power is, “ and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.” This is an express declaration of congress, that the jaower of this court to issue a mandamus is not conferred as appellate jurisdiction, in the *cases specially pro-[*208 vided for in the subsequent part of the law, but only in cases warranted by legal principles and usages, not referring to the constitution and laws of congress, but, as will appear hereafter, to the principles and usages of courts of common law. For it cannot be the sound construction of this section, that the power to issue a mandamus, in a case not mentioned in the law, can be raised by implication, in a case not within the express power given in a subsequent clause of the same section.
The issuing this writ not then being an act of appellate jurisdiction, I now come to the examination of the second branch of the proposition laid down by the court in Marbury v. Madison. Is the issuing of this writ within the 14th section of the judiciary act, which provides, “that all the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and ail other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law ?” The words and evident meaning of this law carry its construction on its face. It enumerates two writs, but does not mention a mandamus. The reason is obvious ; that had been provided for in the preceding section : congress could not have foreseen, in 1789, that any part of their legislation on the subject of mandamus would have been declared unconstitutional and void in 1803, and the decision in Marbury v. Madison can have no bearing on the 14th section. It must be construed as if the powers conferred in the preceding section had been constitutional, and in full exercise by this court, to the extent named in the law : that is, to every court appointed, and to all persons holding office, under the authority of the United States, in all cases warranted by the usages and principles of law. This is certainly an express and plenary power, ample to embrace a case where the power was necessary to exercise the jurisdiction of this court. It took away the necessity of a mandamus, under the power given in the 14th section, and left it • ithout
Construing these two sections, then, as if the power conferred by both were valid, it is apparent, that the 14th section could not have been intended to embrace a mandamus to a court of the United States : the very 'case provided for by that part of the 13th section, which has never been declared unconstitutional. It thus appears clearly to my mind, that the decisions of this court, and the act of 1189, negative both parts of the proposition, which is laid down in
This court has repeatedly declared their sense of the meaning of these terms in acts of congress, organizing and conferring powers upon the federal courts. They do not apply to the usages, principles and practice of the state courts, but to those of common law, equity and admiralty jurisdiction of England. There was an obvious reason for this : most of the states had a local common law. The English common law was a system which was intended to be applied to the exercise of the judicial power of the courts of the Union, who were vested with an appellate jurisdiction over the highest courts of every state, and the necessity is obvious, of proceeding *9 ml *acool'ding to uniform principles and usages well known and defined -I on the subject of its powers and jurisdiction. Bodley v. Taylor,
The principles and usages of law, which warrant the issuing of this writ, are clearly laid down in
It is a prerogative writ (Com. Dig., tit. Mandamus, A), issuing from the court of king’s bench, by virtue of its general and supervising powers (3 Burr. 1265, 1267), on motion, and for cause shown. This is a court of special jurisdiction, limited in the exercise of its powers to specified cases ; it has no prerogative powers, and can issue no prerogative writs ; it possesses no general supervisory powers over inferior tribunals ; and can in nó case grant a mandamus, on its inherent authority.
In the Rioters' Case (1 Vern. 175), a motion was made, to grant a mandatory writ to the chief justice of the king’s bench, and they produced a precedent where, in like cases, such a .writ had issued out of chancery to the judge of the sheriff’s court of London ; “but the lord keeper denied
In Bridgman v. Holt, Show. P. C. 111, a writ of error to the court of king’s bench was pending in the House of Lords; an order was prayed for to the judges, to seal a bill of- exceptions (which the court had refused at the trial), to the end that the said case might, as by law it ought, come entirely before their lordships for judgment, &c. The house ordered copies of this petition to be given to the judges, that they should put in their answers in writing. They replied, by protestation and saving their rights, declaring, “ so that if the pretended bill was duly tendered to these respondents, and was such as they were bound to seal, these respondents are answerable for it by the course of the common law, in an action to be brought on the statute of Westm. II., c. 21, which ought to be tried by a jury of twelve honest and lawful men of England, by the course of the common law, and not in any other manner.” “ And the respondents further show, and humbly offer to your lordships’ consideration, that the petition is a complaint in the nature of an original suit, charging these respondents with a crime of a very high nature ; in acting contrary to the duty of their office, and so altogether improper for your lordships’ examination or considera'ion, not being any more triable by your lordships than every information or action for breach of any statute law is ; all which matters are by the common law, and justice of the land, of common right, to be tried by a jury. And the petition is wholly of a new nature, and without any example or precedent, being to compel judges, who are, by the law of the land, to act according to their own judgments, without any constraint or compulsion whatsoever, and trenches upon all men’s rights and liberties, tending manifestly to destroy all trials by jury. And it is further manifest, that this complaint is utterly improper for your lordships’ examina*2131 ^011’ ^01' your *lordships cannot apply the proper and only remedy J which the law hath given the party in this case, which is by awarding damages to the party injured (if any injury be done), for these are only to be assessed by a jury. And they, these respondents, are so far from apprehending they have done any wrong to the petitioners in this matter, that they humbly offer, with your lordships’ leave, to waive any privilege they have, as assistants to this honorable house, and appear gratis to any suit which shall be brought against them in Westminster hall, touching the matter complained of. And they further, with all humility, offer to your lordships’ consideration, that as they are judges, they are under the solemn obligation of an oath to do justice (without respect to persons), and are to be supposed to have acted in this matter, with and under a due regard to that sacred obligation ; and therefore, to impose anything contrary upon them, may endanger the breaking of it, which they humbly believe your lordships will be tender of. And they further humbly show to your lordships, that by a statute made in 25 Edw. III., c. 4, it is enacted, that from thenceforth none shall be taken by petition or suggestion to the king or his
This is the language of the judges of the court of king’s bench to the highest court in England. I believe it to be in the true spirit of the principles and usages of the common law. It was boldly held to a court composed of the aristocracy, the clergy, the judges of the common pleas, and barons of the exchequer ; in which the lord chancellor presides. It was a manly defiance of their power, and fearless appeal to their common right as free-born people of England, the common law, the guardian mother of liberty wherever adopted. The counsel for the application did not controvert a principle asserted by the judges, and did not show a precedent: the House of Lords did not grant the writ, and the case ends with four blank lines containing, “ and afterwards, * * * ” The blank would have been filled up, if, in so solemn a contest, the arm of power had prostrated the law of the land.
The principles of the judges are a part of that great system which our ancestors introduced, and on which our best institutions are built. They are, in my opinion, a part of the common law of every state and of every common-law court, state or federal, safe guides to the highest, or its component members sitting in a circuit court. The judges of king’s bench humbly offered to their lordships’ consideration, that they acted under oath, the breaking of which might be endangered, if they obeyed their order. If this court asserts and exercises this power, by directing writs of mandamus to every court over which they have appellate jurisdiction, an answer might a second time be entered on our records, in terms of protestation ; not offered in all humility to our consideration, whether the breaking of their oaths should be endangered by obeying; we might expect disobedience to the *writ, and contempt of powerless, defied jurisdie- ' tion. I hope never to see the judges of the highest court in a i republic afraid, when eir judgment tells them that they stand on the
The circuit court have unquestioned appellate jurisdiction over the dis- ' trict court. The 14th section of the judiciary act authorizes all the courts of the United States to issue all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdiction, agreeable to the principles and usages of law. The writ of certiorari is not specially provided for by any statute : it' is a common-law writ issued by *2161 suPer'or appellate courts to inferior ones, and by them to *magisJ trates ; it is the peculiar and appropriate process for ordering a record or proceeding to be certified to a superior tribunal. But being novel in practice, authorized by no act of congress, it ought to be resisted — it was a nullity. The record, though removed in fact to the circuit, remained in the district court in law, and their power to hear and determine it remained as full as before the writ was obeyed. It is not necessary for me to make a detailed application of that case to this ; it applies to all cases where process is applied for to a court which has no power to issue it. In a new case, the rule laid down by the chancellor in 1 Vera. 170, is a sound and safe one : “but the lord keeper told him, that though he had the custody of the great seal, yet he would make no use thereof, but according to the course of the court.’'
Questions of jurisdiction and power ought neither to be sought nor avoided ; a great one has arisen in a very small case, but such cases generally lead to the development of the mighty principles which subvert and found governments. We are asked to issue a mandamus to the circuit court of New York, under circumstances which would not justify one to a county court. This part of the case was very properly submitted, without argument, and if the ajiplication could have been rejected on its merits, without jurisdiction to hear and determine, “ oyer and terminer,” the mer
I am abundantly satisfied, that' the judicial power does not extend to this case ; that the constitution and acts of congress do not authorize a mandamus from this to a circuit court, to sign a bill of exceptions ; that it is warranted by no principle or usage of law, either the common law of this country or of England ; that the issuing of it is neither an exercise of appellate jurisdiction under the 13th, nor necessary to the exercise of the jurisdiction of this court, within the provisions of the 14th section of the judiciary act; that *if the writ can be issued at all, it is specially pro- . vided by statute, and can in no case issue from this court, as called L for by this motion, agreeable to the principles and usages of law. This court have repeatedly decided, that this means the common law of England, as administered in her courts of law and equity. In tracing their course, since the adoption of the statute of Westminster, in 1285, I find, that the court of king’s bench, the only court in the kingdom which, by virtue of its high general prerogative and superintending jurisdiction, can issue the high prerogative writ of mandamus to any court of record, has never issued one to sign a bill of exceptions ; that such a writ is not an exercise of appellate jurisdiction, or necessary to it, but of original inherent power ; that the power to issue it to the court of king’s bench was solemnly denied to the highest appellate court in England ; that the mandatory and kind of prerogative writ, which has been devised and founded on the statute of Westminster, as the only process by which its provisions are enforced, issues from the king in chancery, on application to the keeper of his conscience ; and that the high court of Chancery has no appellate jurisdiction over any court of record ; that the writ, when issued, is not in virtue of appellate jurisdiction in that court, nor as necessary to its exercise. These are the only cases in which, according to the solemn opinion of this court in Marbury v. Madison, it can issue the writ ; thus adjudging and declaring that the union of the legislative and judicial power of this government was incompetent to authorize one to the secretary of state, in a case appropriate for its exercise, and warranted by the principles and usages of the common law, as defined by Blackstone and Lord Mansfield, and adopted by this court. In the absence of a solitary precedent in England, since the 13 Edw. I., or in this court, from its first organization, although this statute forms a part of the law of every state court of record, and of the federal courts in civil cases, which come here for revision, I am constrained to withhold my. assent to the exercise of any power over the subject-matter of this motion. It seems to me, to be as inconsistent with our own decisions, as with the principles and usages of the common law.
There is another objection to the exercise of this power in this case, equally fatal. Two things must concur to authorize *a mandamus. The officer to whom it is directed must be one to whom, on legal [*218 principles, such writ can be issued ; and the person applying for 1. must be without any other specific or legal remedy. The cases referred to clearly
As the matter contained in the bill of exceptions forms a part of the record, the supreme court must take it as true. It admits of no contradiction by any proof. The signing of it by the circuit court is not a ministerial act; but is in its nature judicial, relating to the admission or rejection of what is offered in evidence, or matter of law given in charge to the jury or withheld by the court. An order from a superior to an inferior court, to make that a part of the record, which they do not feel it their duty to do, is in effect to compel them to decide by the judgment of others, and not according to their own.
The next requisite which the supreme court say is necessary, is manifestly wanting. There is, by the principles and usages of the common law, a specific legal remedy provided for the very case, by a special writ from chaneery, returnable before the king in chancery, reciting the mandatory parts of the statute of Westminister. Though no act of congress authorizes this writ to issue from any court, there is a specific and legal remedy, by an action on the statute for a false return, and a special action on the case, if the judges refuse to seal the bill of exceptions, when duly taken and tendered. This abundantly appears by the writ in the register, and the opinion of Lord Chancellor King, in 1 Vernon ; of Lord Redesdale, in 1 Seh. & Lef.; of the court of king’s bench in Bridgman v. Holt ; of Justice Buller in his Nisi Prius 316 ; and of the supreme court of New York, in 6 Johnson : and in the absence of even a dictum to the contrary. These opinions and cases must be taken as clearly showing the law to be well settled, that these remedies are both specific and legal; the writ in the register is alone sufficient to show this. Lord Coke declares original writs to be the foundation of the law. (Preface to 8th Reports.)
*Ns the absence of such remedy forms a part of the definition of the only cases in which, according to the doctrine of the court of king’s bench, adopted in
It may be proper to notice some cases from which it may be inferred that these principles have not been uniformly adhered to. In the lessee of Martha Bradstreet v. Daniel Thomas,
The same answer applies to the United States v. Peters, 5 Cranch 115, 134, in which a mandamus was issued to the district judge of Pennsylvania, to order an attachment in the celebrated case of Ohnstead. No objection was made to the writ; and the cause was submitted, without argument, for reasons apparent in the return of the judge, who had previously rendered a
The decisions of state courts, deriving their authority from state constitutions or laws, are no test of the powers of the courts of the United States ; nor have their usages or practice ever been adopted by any act of congress or rule of the supreme court, except so far as relates to the federal courts sitting within a state: but as much reliance has been placed on the case in
*1 have thus searched among the fountains, and consulted the written oracles of the common law. The streams of justice which *• have flowed from the one, have run in one unbroken current for 546 years, without such a mandamus as this seen floating even on the surface. The
The importance, of the principles involved in this case, not only as they bear on the jurisdiction of this court in issuing prerogative writs to the inferior courts of the United States, but also on the appellate power conferred on them by the constitution and the 25th section of the judiciary act over the state courts, has made it a high duty to give this application a most deliberate examination. Compelled to dissent, I was bound to give my reasons, and cite the authority on which my judgment was formed. Another reason is equally imperious. Sitting here, or elsewhere, it is my duty to exercise all the powers given by the constitution, which the ^legislation of congress has authorized the court to bring into action, ,. on the cases which may properly arise, and call for their application L ^ and to enforce the judgments and decrees of either tribunal of which I am a member, by all the process and physical means which the laws have placed at its command, and on the failure of these, to apply to the executive to see that the laws are executed; I approach all questions of power and jurisdiction with caution, and shall stop in the beginning, unless satisfied that the constitution and laws empower and enjoin it as a duty to proceed and finish what we can begin. Fully satisfied, that on the discreet exercise of the powers of this court, much of the strength and public usefulness of the government depend, I have no fear that its judgments will ever cease to command the support and confidence of the country, while they are applied only to subjects clearly within the judicial power, according to the laws which regulate their exercise. But I do most seriously apprehend consequences of the most alarming kind, by the extension of its powers, by any analogy to the supreme prerogative jurisdiction of the court'of king’s bench, or a state court, and its application to process hitherto unknown in the history of the jurisprudence of England or this court: Via trita, vice tuta.
Concurrence Opinion
concurred, verbally, with Justice Baldwin in the opinion, that the court had no authority to grant the mandamus, as prayed for : and he was of opinion, that the whole charge as delivered to the jury, by the court, should be stated in a bill of exceptions, if required by the counsel who took the exceptions.
Motion overruled, and mandamus prayed for refused.