delivered the opinion of the Coürt:
This casé comes up on, a writ of error from the circuit court- of the United States for the, District Of Columbia, sitting for the county of Washington.- ■
..This case was brought before the court below by petition, setting out certain, contracts made between the relators and the late postmasteygeneral, upon which they claimed certain credits and allowances Upon their contracts for the transportation of the mail.. That credits and allowances were duly’made by the late postmaster general. That the present postmaster generé! when he came .into office, re-examined the contracts entered into with his predecessor,-and the-allowances made by him, and the credits and payments which had been made;-and-directed that the allowances and credits should be withdrawn, and the relators recharged with divers payments they had received. That the relators .presented a. memorial .to cong'ress oji the subject, upon which a law was -passed on the 2.1st of July, 1-836. for their' relief; by which the solicitor of the- treasury, was auth rwed and directed to settlé and adjust the claims of the relators
Such proceedings were afterwards had in the case, that a peremptory mandamus was ordered commanding the said Amos. Eendall, postmaster general, forthwith to credit the relators with the full-' amount awarded and decided by the solicitor of the treasury to. be due to the relators.
The questiops arising upon this ease,' may be considered under two general inquiries:
1. Does the record present a proper case for. a mandamus;, and'if so, then,
2. Had' the circuit court -of this district -jurisdiction of the case, and authority to issue the. writ. ’
. Under the first head of inquiry, it has been considered by the counsel on the part of the-postmaster general, that this is a proceeding against him to enforce the performance of an oflicial duty. And
We- shall not, therefore, enter into any particular examination of the line to be drawn between: the powers'of the executive and-judicial departments of the government; The theory of the constitution undoubtedly is, that the • great powers of the government are divided into separate departments'; and so far as these powers. are' derived 'from the constitution,-the departments may be regarded as independent qf each other. Bdt- beyond that, all are subject to regulations by law, touching the discharge of the dutjefe required to be performed.
The- executive power is vested in a President; and as far as hi* powers are derived from the constitution, he is- beyond the reach of any other department; except in the mode pi’,escribed by the constitution through the impeaching power.- But it By no means-follows, that, every officer in every branch of that department is under- the exclusive direction of the President. Such a principle, we apprehend, is not, and certainly cahnot be claimed by the President.
There are. certain political duties imposed upon many officers in the executive department, the discharge of which is Under the di;rec-. tion. .of the President. But it would-, be an alarming doctrine, that congress cannot impose- upon any executive officer' any duty they may think proper, which is not, repugnant to any rights secured and protected by thé constitution; and in such cases,, the -duty and responsibility grow out of and are subject to the contról of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character.
Let us proceed, then, to an examination of the -tct required by the mandamus to be performed by the postmaster general; and his obligation to perform, or his right' to resist the performance-,,must
The solicitor ■ did examine and decide that there'was due to the relators, one hundred and-sixty-one thousand five hundred and sixty-three dollars and ninety-three cents; ■ of this sum, the postmaster general credited -then! with' one hundred and .twenty-two; thousand one hundred and one dollars and forty-si-x cents: leaving due the sum of' thirty-nine thousand four hundred and seventy-two- dollars and forty-seven cents, which he refused to carry to their credit And the-clject of the mandamus was to.compel him to. give credit-for this balance.
Under this law the postmaster general is vested with no discretion or controTover the-decisions-of the solicitor; nor is any appeal or review of that decision provided for by the act. The -.terms of the-submission was a matter resting "entirely in the discretion. of congréss; and if they thought proper, to vest such a- power in any one, and especially as the arbitrator- was an Officer of the government, it did not rest with the' postmaster general to control congress, br the. solicitor, in that affair. It is- unnecessary to sgy bow far congress might have interfered, by legislation, after the report of the solicitor. But if there was no fraud, or misconduct in the- arbitrator, of which none is pretended, or suggested; it may well be .questioned whether the relators;had not acquired such a-vestéd right, as to be beyond the power of ..congress to deprive them of it. •
But so far from congress attempting to deprive the relators, of the
Upon this memorial, the judiciary, committee of the senate -made a report, ini-which 'they say, “ that congress intended the award of the .solicitor to be final, is-apparent from the direction'of the act that the-'postmaster general be, and he is hereby directed to credit such mail contractors with whatever sum the .solicitor shall decide to bé due tó them.” If congress had intended to revise the decision of the solicitor, the postmaster general would not have been directed to ■make the payment, without the intervention 'or further actiop of , congress! g That unless it appeared, which is'not suggested by any one,-that some cause exists'which would' vitiate or bet ¿side thV award between private parties before a "judicial tribunal, the committee cannot recommend the interference of congress-to set aside this award, .and more, especially, aá it .has been-made-by a high officer, selected by the government; and. the committee conclude their report with a resolution, “That the postmaster general is fully warranted -in. paying, and ought to pay to William B. Stokes and others, the full amount of the award of the solicitor of the treasury:” which resolution was unanimously adopted, by the senate.. After such "a decided expression of the opinion of one branch of congress, -it would not have been necessary to apply to the other. Even if the relators were bound 10 make any'application to congress for relief, which they clearly were not; their right to the full amount of the credit, according to the report of the solicitor, having been ascertained and fixed byr law, the enforcement of that right fall's properly within judicial cognizance.
It was urged at the bar, that the postmaster general was alone, subject to the direction and control of the'President, with respect to the-execution of the duty imposed upon him by this law; and this' right of the President is claimed, as growing out of the obligation imposed upon him by the constitution, to take care that the laws be
To contend, that the obligation imposed on the President to see the laws faithfully executed, implies a power to.forbid their execution, is a novel construction of the coñstitution, and entirely'inadmissible. But although the argument necessarily leads.'to such a result, we do not perceive from the case that any such power has been claimed by the President. But, on the contrary, it is fairly to be inferred that such power was disclaimed. He did nót forbid or advise the postmaster general to. abstain from executing the law, and giving the credit thereby required; but submitted the matter, in a message to congress. And the same judiciary, committee of the senate report thereupon, in which they say, “ The Pres-, unt, in his message, expresses no opinion in relation to the subject under consideration, nor does he recommend the adoption of'any measure whatever. He communicates the report of the postmaster general, the review of that report, by the solicitor of the treasury, and the remarks of the postmaster general in answer thereto, together with, such vouchers as are referred to by them respectively. That the committee have considered the documents communicated, and cannot discover any cause for changing their opinion upon. any. of the principles advanced in their former report upon this subject, nor the correctness of their application to this case; and recommend thé adoption of the resolution before reported.’?
Thus, upon a second and full consideration of the subject, after hearing and examining the objections of the postmaster general, to the award'of the solicitor, the committee report, that the postmaster general, ought to pay to the relators the amount of the award.'
The right of the relators to the benefit of the award ought now to be considered as irreversibly established; and the question is whether they have any, and what remedy ?
The act required by the law to be done by the postmaster general is simply to credit the relators with the full amount of the award of the solicitor. This is a precise, definite act, purely ministerial;' and about which the postmaster general had no discretion whatever.
And in this view of thé case, the question arises, is the remedy by mandamus the.fit and appropriate ffemedy ?
The common law, as it was in force.in Maryland when,the cession was made, remained in force in this district. We must, therefore, consider .this writ, as it was understood at the common law with respect to its object and purpose, and varying only in the form, required by the-different character of oúr government.- It is-a writ, ip England, issuing out of the king’s bench, in the name of {he king, and is called a prerogative writ, but considered a writ of right;- and. is directed.'to some person,-corporation -.or inferior court, requiring them to do some particular thing, therein specified, which appertains to their office or duty, and which is supposed to be consonant id right and justice, and where the^e is no other adequate specific remedy. Such a writ, and; for such a purpose, would seein to be peculiarly. appropriate to the present ca-sei' The right claimed is just arid established by positive law; -and the duty required" to be performed is - clear and specific, and there is no other adequate remedy.
"The remedies suggested at the bar were, then, an application to congress; removal of. the postmaster general, from office; and an action against him for damages;
The first has been tried and failed. The second might not afford "any certain relief, for his successors might withhold the credit-in the same manner; and, besides, such extraordinary measures are not ihe remedies spoken of in the law which will supersede the right of resorting to a mandamus; and it is seldom that a private action at
■ That the proc ceding on a mandamus is a case within the meaning of the act of congress, has been too often recognised in this Court to require any particular notice. It is an action of suit brought in a court of justice, asserting a right; and is prosecuted according to the forms of judicial proceedings.
- The next inquiry is, whether the court 'below .had- jurisdiction of the casé, and power- to issue the mandamus?
This objection rests upon the decision of this Court, in the- cases • of M‘Intire v. Wood,
It beecrmes necessary, therefore, to examine with attention the ground on which those cases rested. And it is to be observed, that although the question came up under the names of .different parties, it related .to the same claim in- both: and, indeed, if Wás béforé the Court at ánother time, which is reported in
The question, in the first' case, originated in the circuit court of the United States, in Ohio, and came to this Court on' a certificate of division of opinion. The second 'time, it was an original application to this-Court, for-the mandamus. The third time, the application was-to the state court, and was brought heré by writ of error, under the twenty-fifth section of the judiciary act.
By the first report of the case, in 7 Cranch, it, appears that the application to the circuit, court was for a mandamus to the register of a land office in Ohio, commanding him to issue a final certificate of
It is not .designated by .the Court, in the pase of M‘Intire v. Wood, in what respect there is a want of delegation to-the circuit courts of the. power necessary to take’ cognizance -of' such a case, and issue the writ'. It is said, however, that the power is confined ro certain specified eases, among which is not to be found that of issuing a mandamus, in such a case as was then before the Court. It is unnecessary to enter into a particular examination -of the limitati-m upon the power embraced in this eleventh section of the .judiciary act. There is,-manifestly, some limitation’.. The' circuit courts’-have certainly1 not jurisdiction of all suits or cases of a civil nature at-common law, and in equity. They are not courts of general jurisdictior. in all such cases; and an averment is necessary, bringing the case within one of the’ specified classes.-, ,But the obvious inference from the case of M‘Intire v. Wood, is, that under the constitution, the power to issue a mandamus to. an executive officer, of the United. S.tates, may be vested in the inferior courts of the’United States; and'that it is the appropriate writ, and proper to be employed, agreeably to the principles and usages of law, to compel the performance of a mi
An application for á mandamus, founded on the' same claim, was made to this Court under the name of M‘Cluny v. Silliman, as reported in
The ease came up again under the name of M‘Cluny v. Silliman,
It is, he says, not easy to conceive on what legal ground a state-tribunal can,iin any instance, exercise the power of issuing a mandamus to a register of a land office. The United'States have not thought proper to delegate that power to their own courts. But
The result of these cases, then, clearly is, that the authority to issue the writ of mandamus to an' officer of the United States, commanding him to perform a specific act required by a law of the United States, is within the scope of the judicial powers of the United States, under the constitution. But that the whole of that power has not been communicated by law to' the circuit courts; or in other Words, that it was then a dormant power not yet called into action, and vested in those courts; and that there is nothing gro ving out of the official character of the party that will exempt him from this writ, if the act to be performed is purely ministerial.
• It must he admitted, under the doctrine of this Court in the cases referred, to, that unless the circuit court of this district is vested with broader powers and jurisdiction in this respect, than is vested in thé. circuit courts of'the United States in the several states, then the mandamus in the present case was issued without authority.
But in considering this question, it must be borne in mind that the only ground upon which the court placed its decision, was that the. constitutional judicial powers on this subject had not been imparted to those courts..
In the first place, the case of Wheelwright et al. v. The Columbia Insurance Co.
It would' seem to be a reasonable, if not a necessary conclusion, that the want of a sufficient value of thé matter in controversy, was the sole ground upon which- the Writ of error was quashed, or dismissed. If it1 had been on the ground that the court below had not jurisdiction in the case, it can hardly be believed that the Court would have directed affidavits to be produced of tne value of the matter in controversy. This would have been an act perfectly nugatory, and entirely unavailable, if the matter in controversy had been shown to be above the value of erne thousand dollars. If the want of-jurisdiction in the circuit court had been the ground on Which the writ of error was quashed, the same course would have been pursued as was done in the case of. Custis v. The Georgetown & Alexandria Turnpike Co.
But -let us examine the act óf "congress of the-27th of February, 1801, concerning the District of Columbia, and by which the circuit court is organized, and its powers and jurisdiction pointed out. And it is proper, preliminarily, to remark, that under the constitution of the United States, and the cessions made by the states of Virginia and Maryland, the exercise of exclusive legislation in all cases whatsoever, is given to congress. And it is a sound principle, that in every well organized government the judicial power should be coextensive with the legislative, so far at least as private rights are to be'enforced by judicial proceedings. There is in this district, no division of powers between the general and state governments. Congress has the entire control over the district for every purpose of government; and it is reasonable.to suppose, that in organizing a judicial department heré, all judicial power necessary for the purposes of govérnment would be vested in the. courts of justice. The circuit court here is the highest court of original jurisdiction; and if thé power, to issue a mandamus in a case, like the present exists in any court, it is vested in that court.
Keeping this consideration in view, let us look at the act of congress.
The first section- declares, that the laws of the state of Maryland, as they now exist, shall- be, dnd continue in force in that part of the district which was ceded by that state to the United States; which is
These, and other cases where a mandamus has' been considered in England as a fit and appropriate remedy, are referred to by the general- court; and it is then added, that the position that this court is invested with similar powers, is generally admitted, and the decisions have inyariably conformed to it; from whence, say the court, the inference is plainly deducible, that-this court may, and of right ought, for the sake of.justice, to interpose in a summary way, to supply a remedy; where, for the want of a specific one, there would otherwise be a failure of justice.
The theory of, the British government, and of the common law is, that the writ of mandamus is a prerogative writ,- and is sometimes called one of the flowers of the croyn, and is therefore confided only to the king’s bench; whére the king, at one period of.
The common law has not been adopted by the United States,-as a system in the states generally, as has been done with respect to this district. ' To consider the writ of mandamus, in use here, as it is in England, the issuing of it should be confined to this Court, as it is there to the king’s bench. But, under the constitution, the power, to issue this as an original writ, in the .general sense of the common law, cannot be given to this Court, according to the decision in Marbury v. Madison.
Under the judiciary act, the power to issue this writ, and, the purposes for which it may be issued in the courts of the United States, other than in this district, is given by the fourteenth section of the act, under the general delegation of power “ .to issue all other writs not specially provided for by statute,-which, may- be necessary for the exercise of, their respective jurisdictions, and agreeable to the
Thus far the power of the circuit court to issue- the writ of mandamus, has been consideradas derived under the first section of the act of 27th of February, 1801. But the third and fifth sections'are to be taken into consideration, in deciding this question. The third section, so far as it relates to the present inquiry, declares: “That there ¿hall be a court in'this district, which shall.be called the. circuit court of the District of Columbia; and' the said court, and the judges thereof,'shall have all the powers by law vested in the circuit courts and the judges of the circuit courts of the United States.” And the fifth section declares': “That the said court'shall have cognizance of all cases, in law and equity, between parties, both Or either of which shall be resident or be found within the district.”
■ Some criticisms have been made at the bar, between, the use of thé terms power and cognizance, as employed in those,sections. It is riot perceived how such distinction, if any exists, cari affect the construction of this law. That there is a distinction, in some respects, cannot be. doubted; and; generally speaking, the word power is used in reference to the means employed in carrying jurisdiction into execution. But, it may well be doubted, whether any- marked distinction is observed and lcépt up in our laws, so as in any measure to affect the construction of those laws. Power must include jurisdiction, which is generally used in reference to the exercise of.
Thus, all legislative power shall be vested in congress. . The executive power shall be vested in a President. , The judicial power shall be vested in one Supreme Court, and in such inferior courts as congress shall, from time to time, ordain and establish: and this judicial .power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States; and treaties made; or which shall be made, under- their authority, &c. This power must certainly embrace jurisdiction, so far as that term is applicable to the exercise of legislative or executive power. And as relates to judicial power, the term jurisdiction is not used, until the distribution, of those powers,among the several courts, is pointed but and defined.
There is no such distinction in. the two sections of the law in the' use of the. terms power and jurisdiction,'as to make it necessary to consider them separately. If theré is any distinction, the two sections, when taken together,- embrace them both. The third gives the power, and the fifth gives the jurisdiction on the cases in vvhich that power is to be exercised. . By the fifth section, the court has cognizance qf all actions or suits of a civil nature, at common law or in equity, in which the-United States shall be plaintiffs or complainants; and also of all cases in law and equity between parties, both or either qf which shall,be resident or be .found within the district. This latter limitation can only affect the exercise of the jurisdiction, and cannot limit the subject matter thereof. No court can, in the ordinary administration of justice, in common law proceedings; exercise jurisdiction over a party unless he shall voluntarily appear, or is found within the jurisdiction of the court, so as to be served with process. Such process cannot reach the party beyond the territorial jurisdiction of the court. And besides, this is a personal, privilege which may be waived by appearance; and if advantage is to be taken of it, it must be by plea or some other mode at an early stage in the cause. No such objection appears to have been made to the jurisdiction of-the court in the present case. There* was no want of jurisdiction, then, as to the person; and as to the subject matter of jurisdiction, it extends, according to the language of the act of congress, to all cases- in law and equity. This, of course, means cases of judicial cognizance: That proceedings on an application to a court of justice for a'mandamus, are judicial proceedings, cannot admit of
And the power in the court below to exercise this jurisdiction, we think, results irresistibly from the third section of the act of the 27th of February, 1801, which declares that the said court, and the judges thereof, shall have all the powers by law vested in the circuit courts and. the judges of the circuit courts of the United -States. The question here is, what circuit .courts are> referred to. By the act of the 13th of February, 1801, the circuit'courts established under the judiciary act of 1789 were abolished; and no other circuit courts were in existence except those'established by the act of 13 th February, 1801. It was admitted by the attorney general, on the argument, that if the language of the law. had- been, all the powers now vested in the circuit courts, &c., reference would have been made to the act of the 13th Fébruáry, 1801, and the courts thereby .established. We think that would, not have varied the construction of. the act.
. It was not an uncommon course of legislation in the states, at an early day, to adopt, by reference, British statutes: and'this has been the course of legislation by congress in many instances where stat.e p'raetice and state process has been adopted. And such adoption hasi always be.en considered as referring to the law existing at the time-of adoption; and no subsequent legislation has ever-been supposed to affect it. And such must necessarily be the effect and’ operation of such adoption. No other rule -would furnish any certainty as to what was the law; and would Ipe adopting prospectively, all changes ' that might be- made in the law. And.this-has been the’li-ght in which .this Court has-viewed such• legislation. In the cas'e of Cathcart v. Robinson,
The judgment of the-court below is accordingly affirmed with costs, and the cause remanded for further proceedings.
As this case'has attracted some share of the public attention, and a diversity of opinion exists on the bench ; it is proper that I shoiild state the grounds upon, which I dissent from the judgme'nt pronounced by the Court. There is no controversy about the facts; and as they have been already sufficiently stated', I need not repeat them.
Upon some of the points much argued at the bar, there is no differerice of opinion in the Court. Indeed, I can hardly understand how so many grave questions of constitutional power .have been introduced into the discussion of a case like this, and so earnestly déhated on both sides.. The office of- postmaster general is- not created- by the constitution; nor are its powers or duties marked out by that instrument: The office was created by act of congress; and wherever congress creates such an office- as that of postmaster general, by law,.it may unquestionably, by law, limit its powers, and regulate its proceedings; and may subject.it to any supervision or control, executive or- judicial, which the wisdom of the legislature may deem right. There can, therefore, be no question about the constitutional powers of the executive or judiciary, in this- case. The controversy depends simply upon the construction of an act-of congress. The circuit court for the District «of Columbia was organized by the act of February 27,1801, which defines its powers. and jurisdiction; and if. that law, by its true construction, confers upon the court the power it has in' this Instance exercised, then the judgment must be affirmed.
There is another point on which there is no difference of opinion in the Court. We all agree that by the act of July 2, 1836, it was the duty of the postmaster general to credit Stockton and Stokes with the amount awarded by the solicitor of the treasury;. that'no discretionary power in relation to the award, was given to the postmaster. general; and .that the duty enjoined upon him was merely ministerial.
.It has been decided in this Court, that-the circuit courts -of ihe United States, out of this district, have not the ppwer to issue the writ of mandamus to an officer of the general government, commanding him to do a ministerial act. Thef question .has-been twice before the Supreme Court; and upon both occasions was fully argued and deliberately considered. The first case was .that of M‘Intyre v. Wood, 7 Cranch; 504, deéided in 181.3. It was again brought ,u.p in 1821, in the case of M‘Cluny v. Silliman,
. As no reason of policy or public convenience can be assigned for giving to the circuit court here a jurisdiction on this subject, which has been denied to the other circuit courts;.- those who maintain that it has been given ought to show us words which distinctly give it, Or from which it can plainly be inferred. When-congress intended to confer this jurisdiction on the Supreme Court, by the act of 1789, eh. 20, they used language which-nobody could misunderstand.- In that law they declared that the Supreme Court should have power
But, let- us examine the sections which aré supposed to give this power to this circuit- court.
1st. It is said to be given by the first section. This section-declares, that the laws of Maryland, as they then existed* should be in, force in that part-of the district ceded by.Maryland; and the laws of.Virginia in that part of the district ceded by Virginia, By this section, the common law in civil and criminal cases, as-it existed ■ in Maryland at the date of this, act-of ■ congress, (February 27, 1801,) beeame the law of the district-on the Maryland side-of the Potomac; and it is argued, that this circuit court.being a court of general jurisdiction . in eases at common law, and the highest court of original jurisdiction in the district, the-right to issue the writ of mandamus is incident todts common law powers, as a'part of the laws of Maryland ;. and distinguishes it in this respect from the circuit courts for" the state’s.
The argument is founded in a-mistake as to the nature and character ofthe writ of mandamus as known to the English laiy; and as
. The power to issue the writ of mandamus to an officer' of the government, commanding him to do a ministerial act, does not, by .the' common law of England, or by the laws of Maryland, as they existed at the time of the cession, belong to any court whose jurisdiction was limited to a particular section of country, and was not .coextensive with, the sovereignty which éstablished' the court. It jnay, without doubt,!be conferred on such courts by statute, as’was done in Maryland, in 1806, after the. cession of the district. • But] by the principles of the common law and the laws of Maryland, as they existed at the time of the cession;. no court had a right to issue the prerogative writ of mandamus, unless it was a court in which the judicial sovereignty was’ supposed to.reside-; and which exercised a general superintendence oyer the inferior tribunals and persons throughout the nation, or state.
In England this writ' can be issued by the king’s, bench only. It -cannot be issued by the court of common pleas, or any other court knowh to the English law,- except the court of king’s bench. And the peculiar, character and constitution of that court,, from’which it .derives this high power, are s'o well-known and familiar to every lawyer, that it is scarcely necessary to cite authorities ~op the subject. Its peculiar powers are clearly stated, in 3 Black.’ Com. 42, in the following words: “The jurisdiction of this court is very high and transeendant, It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progress below. • It superintends all civil corporations in the kingdom. It commands magistrates and others to do what their duty requires in every case,’ where there is no-other specific remedy. It protects the liberty of the subject by speedy ánd summary'interposition,” &c. It is f-om this “ high and transcendan*”'jurisdiction that the court of king’s, bench derives the power- to issue the writ of mandamus, as appears- from the same volume of Blackstone’s Cómmentaries, p. 110. “The writ of mandamus,” says the learned commentator, “ is in general a command issuing-in the king’s name .from the court'of king’s bench, and directed to any person, corporation or inferior- court of judicature, within, the king’s dominions] requiring them to do'some particular thing therein, specified, which, appertains to their office and duty, and which thb court of king’s'bench lias previously determined, or
These peculiar powers were possessed by the' court of king’s bench; because, the king originally sat there in person, and aided in the adininistration of justice. According to the theory ■ of the English constitution, the king is the fountain of justice, and where the laws did not afford a remedy and enable the individual to obtain-his right, by the regular forms of judicial proceedings, the' prerogative powers-of the sovereign were brought in aid of the ordinary judicial powers'of the court, and the mandamus .was issued in his name to enforce' the execution of the law. And although the king has long since ceased to sit there in person, yét the sovereign is still there in construction of. law so far as to' enable the court to exercise its prerogative powers in his name; and hence its powers to issue the writ of mandamus, the naturp of which Justice Doddridge so forcibly describes, by calling it extra-judicial, and one of the flowers of. the king’s bench. It is, therefore, evident, that by the principles of the common law, this power would not be incident to any court which did not possess the general superintending power of the court of king’s bench, in which the sovereignty might by éonstruction'-of law be supposed to sit; and to ex.ert there its prerogative powers in aid of the court, in order that a right might not be without a remedy.
The English common law was adopted in the colony of Maryland.
When the revolution of 1776 took place, the same .system of jurisprudence was adopted; and the fifty-sixth article of the constitution of Maryland provided, “that three persons of integrity and sound judgment in the law, be appointed judges of the court now called the provincial-court, and that the same court be hereafter called and known by .the name of the general court.” No further description- of the jurisdiction and powers of the general court is given. It, therefore, in the new order of>things, was clothed with the same powers'and jurisdiction» that had belonged to the provincial court before .the revolution. In other words, the general court was, in the state of Maryland precisely what the court of king’s' bench was in England; Afterwards, and before the cession of the District of Columbia to the United States, county courts were established in Maryland corresponding in character with what are called circuit courts in most of the states. These courts possessed general jurisdiction, civiland criminal, in the respective counties, subject, however, to the superintending power of the general court; which exercised over them the same sort of jurisdiction-which the. court of king’s bench exercises'over inferior tribunals. This was the system of jurisprudence in Maryland, at the time when the act of congress adopted the laws ’of the state for the district; and. the power which the Maryland courts then -possessed, by virtue of those lawis, -in relation to the writ of mandamus, are set-forth iri the case of Runkle v. Winemiller, 4 Harris & M‘Henry, 449. Chief Justice Chase, in delivering the opinion of -thé court in that case, after describing the character-and principles of the writ of mandamus, says: — “The court
2. But it is insisted, that if the power to issue the writs of mandamus is not incidentally granted to this circuit eburt by the first section of the act of February 27th, 1831, which adopts the laws of Maryland; yet it is directly and positively given by the fifth section, which declares that the court shall have cognizance of “ all cases in law and equity.” It is said that a case jiroper for a manda-, mus is-a case at law; and. that the words abovemeiitioned, therefore.,, authorize the. circuit court to take cognizance of it.
The cases of Wood v. M‘Intire, and M‘Cluny v. Silliman, herein-before mentioned, appear to me to be decisive against this proposition. These cases decided that the circuit courts out of this district', have not the power now in question. It is true, that the eleventh section of the act of 1789, ch. 2D, which prescribes the jurisdiction of the circuit courts out of this district, does not use the very same words that are used in the fifth section of the act now under consideration. The eleventh section of the act of 1789, declares that the circuit courts shall have'cognizance of “ all suits of a civil nature at conrmon law, or in equity,” &c. But these words, “all suits of a civil nature at cqmmon law,” mean the same thing as the words “all cases at law,” which-are used,in the act of February 27th, 1801; and Mr., Justice Story, in his Commentaries on the Constitution, Abr. 608, 609, in commenting on the meaning of the words, “ cases at law and equity,” as used in the constitution, says: — “A case, then,-, in the sense of this clause of the constitution, arises where some subject touching the constitution, laws, or treaties of the United States,' is submitted to the courts by a party who asserts his rights in the
' But it is argued that if-.the 1st section of the . act of congress does-riot give' the circuit court this jurisdiction, and if the 5th section does not give it, yet it may be derived' from these two sections taken -together. The argument, I understand, is this: The general court of Maryland possessed the power to issue the writ of • mandamus in a case" of this description; and inaspiüeh, as. that court possessed this power, the cases which authorised'the parties to demand it, were “cases-at law,” by the laws of that' state; "and consequently, the jurisdiction -is conferred on the, circuit court in similar cases, by the adoption of the laws of -Maryland in the first section, arid the words in the. fifth;'whjch give, the circuit court cognizance of “cases at law.”
The fallacy of’this argument'consists in assuming that the general court of Maryland had jurisdiction to issue the writ of mandamus, because it was “a case at law.” whenever, the party, took the proper steps to show himself entitled to. it. The reverse of thjs proposition is the true one. A .“ case at law,” as I have already Shown, means, the same thing as a “suit;” and the- general court had authority to -issue the writ of mandamus, not because. the proceeding was a, case of suit at law; but because.no case or suit at lawwould afford a/remedy to’ the party, This is the basis upon: which rests the power, of the court of king’s bench in-England, and upon-which rested the power of the general court in Maryland before that court was abolished.
. ; 4; But it is said that if the jurisdiction exercised in this ease by the circuit court for the. District of Columbia, cannot be maintained upon any of the grounds hereinbefore examined, it may yet be supported on the 3d section ■ of .the act, of February 27, 1801. This section, among other things,provides that this circuit “court and the judges thereof shall have all the powers by law vested in;the circuit courts, and the judges of the circuit courts of the United States.5’ And it is insisted that as the act of February 13, 1801, was at that time in force,- the powers of this circuit court are to be measured by that act, although it has since been repealed; that the circuit courts established by the act of February .13th, 1801, did possess the power in question, and consequently that the circuit court for this district now possesses it, and may lawfully exercise it.
. T-hére are two answers to this argument, either of which áre, in my judgment, sufficient.
In the first place, there are; no words in the act of February 27, •1801, which refer particularly to the powers given to the circuit Courts by the act of February 13, 1801, as the rule by which the powers of the circuit court for this district.are to be measured. The obvious meaning of the words above quoted is, that the powers of this circuit court shall be regulated by the existing powers of the circuit courts ás generally established, so that the powers of this circuit
In the second place, if the powers of the circuit court for the District of Columbia are Still to be regulated by the law which was repealed as long ago ás 1802; yet it will make no difference in the-resqlt of the argument. Much has been said about the meaning of the words “powers” and “cognisance” as used in these acts of congress. These words .aré no doubt gei ¿rally used in reference to counts of justice, as meaning the same thing; and I have frequently so used them in expressing- mjConinion in this case.. But it is manifest that they are not so used in the acts of congress establishing the judicial -system of the United States; and that the word.powers is employed to denote the process, the means, the modes of proceeding, which the court’s are authorized to use in exercising their jurisdiction in the -cases specially enumerated in the law as committed to their “cognizance.” • Thus in the act of 1789, cli. 20, the 11th section specifical- . ly enumerates the cases, or subject- matter of which the circuit courts shall have “cognizance;” and subsequent sections under the name of “powers” describe the process, the means which the courts may employ in exercising tlfeir jurisdiction in the - cases specified.' For example,, section 14 gives .them the “power” to issue the writs “ neces1 sary fojr the exercise of their respectivé jurisdictions;” and names particularly some of the writs which they shall have the “power” to issue; section 15, gives them the “power” to compel parties to pro.düce their books, &c..; section 17, gives them the' “power” to .grant' new trials, to'-administer oaths, to punish contempts, and to establish rules of court. The same distinction between “powers” and jurisdiction or “cognizance” is preserved in the act of February. 13, 1801'.- The 10th section of this act gives the circuit courts. thereby established, all-.the “powers” before vested in the circuit courts of the United States, unless where otherwise provided by that law; and .the next following section, (the T 1th) enumerates, specifically the
Now,-it appears to me that, when w.e find the eleventh section of the act'of' February 13th enumerating and specifying the cases of which the. circuit .courts out of this district should have “ cognizance1;” and the fifth, section of the act of February 27th, enumerating and specifying the cases of which the circuit court within this district.should háve “ cognizance;”. if there is found, to be any substantial difference in the jurisdictions thus specified and defined in' these-two laws; the just arid- natural inference is, that the legislature intended that the jurisdiction of the courts' should be different; and, that they did not intend to give to the circuit court for this district ■the same jurisdiction that-had been given to-the others. This would be, the legitimate inference in comparing any laws establishing different courts; and the conclusion is irresistible in thi's case,'.where the two laws were passed within a fe.w days of each other, and both must.have been, before the legislature at the'same time. It.would fee-contrary to the soundest.rules for the construction, of statutes, in such a case, to enlarge the jurisdiction of this circuit court beyond the limits of the fifth section, by resorting to such general words as those contained in the third;, and to words, too, which much more
I do not, however, mean to -say, that the eleventh section of the act of February 13th, conferred ón the circuit courts'which it established, the power to issue the writ of'mandamus, in a case like the present one. I think it did not; and that a careful analysis of its provisions would show'that.it did notÍ especially when taken.in connection with the provisions of the act of 1789, which had expressly .conferred that power, on the Supreme Court. But it is unnecessary to pursue.the argument on this point, because no just' rule of construction can authorize us to engraft , the provisions of this section upon the act of February 27th, so .as'to give to the circuit court (for the District of Columbia: á wider, jurisdiction than that contemplated by the-fifth section of the last mentioned act.
- Upon a view-of the whole case, therefore, I cannot find the power which the circuit court has exercised either .in the first section, or the third section, or the fifth section;-and it is difficult to believe that congress meant to have given this' high, prerogative power in so many places, and yet, in every one of them, have left it, at best, so ambiguous and doubtful. And if we now sanction its exercise, we shall giye to the court, by remote inferences1 and implications, a delicate and important power which I feel persuaded congress never intended to entrust to its hands.
Nor do I see any reason of policy that should induce this Court to infer such an intention on the part of the legislature, where the words of the law evidently do not require it. It must be admitted that congress have denied this power to the circuit courts out of this district. Why should it be denied to them, and yet be entrusted to the court within this district? There are officers of the general government in all of the states,-who are required by the laws of the United- States to, do acts which are merely ministerial, and in which the private rights of individuals are concerned. There are collectors and other officers of the. revenue, who are required to do cértain ministerial acts, in giving cleárances to -vessels, or in admitting them to entry or to registry. There are also registers and receivers of the land offices, who are, in like manner, required by law to do mere ministerial acts, in which the private rights of' individuals are involved. Is there any reason of policy , that should
• The case of the Columbian Insurance Company v. Wheelwright,
■ It is certainly , error in a circuit court ..to assume .a jurisdiction which has not been conferred op-it by law, • And. it would seem'.to bfe a strange limitation on the appellate,powers of-.this Court, if it. were restrained from correcting the judgment of a cirkpit court When it committed this error. If such were the. cáse, fheiitán. ertor eomr.' 'mitted by .a circuit court in relation to the legal rights'of-the parties beforé it, could not.be examined into and corrected in this Court; if it happened to be-associated -with the additional error of .having assumed-a jurisdiction which the jaw had not given. Suchy I.think, cannot be'the legitimate construction of the section above quoted. And if the circuit court .mistakes its jurisdiction, either iri respect to the persons, pr the subject matter,- or the process, or the mode- of. pro-' ceeding; .the mistake may be corrected here By a-writ of error from its final judgment, or by appeal'in cases-of equity or admiralty jurisdiction. And whether the final judgment is pronounced in ^summary or other proceeding, if it be in a case in which the circuit court had not jurisdiction, its judgment may be re-examined here, arid thei error corrected by '-thife.Court. The decision of this Court, therefore, -in the case of The Columbian Insurance Company, v. Wheelwright, that k writ of error would lie from the judgment of the circuit court of- the District of Columbia, awarding a peremptory mandamus, is by no means a decision that the court below had jurisdiction to issue it. - '
In fine, every view which I have been able to take of this subject, leads ‘me to conclude that the' circuit court had not the power to issue a' writ of mandamus in the • case before us-. And, although I am ready to acknowledge the respect and confidence, which is justly due .to the decision of the majority pf this Court; and am fully sensible. of the learning and force with which their judgment is sustained by the learned judge who delivered the opinion of the Court, I must yet, for the reasons above stated, dissent from it. I think that' the circuit court had not .by law, the right to issue this mandamus: and that the judgment they have given ought to be reversed,
In this case, I have no doubt but that congress have the constituional power to. give to the federal judiciary, including the circuit' ourt of this district, authority to issue the writ of mandamus to ihe
I have no doubt, that the act which in this, case was required to be done by tbe postmaster general, is such an one as might properly be enforced by the writ of mandamus; if the circuit court of this district had authority by law to issue it.'
But the question is, whether that court is invested with this authority by law? I am of opinion that'it is not; and I will" state -the-reasons which have brought me to that conclusion;
It was decided by this Court, ih the case of MTntire v. Wood, 7 C,ranch, 504, upon a certificate of division from the circuit court of Ohio; that that court did not possess the power to issue a writ of mandamus to the register of a. land office, commanding him to issue a final certificate of purchase to the plaintiff, for certain lands in the state of Ohio.
The, principle of this case was approved, and the saíne point affirmed, in the case of M'Cluny v. Silliman, 6 Wheat.-' 598.
.In the views, then,- which I am about to present, I shall set out. with the adjudged and admitted proposition, that no other circuit courts of the United State's have power, to- issue the .writ of mandamus. And then the whole question'is resolved into the single inquiry, whether the.'circuit court of this district has power to do that which all .admit the other circuit cburts of tfye United States have not the power 'to do? It has been earnestly maintained at the" bar, that it has; because, it is said, that it-has by law a larger scope:of jurisdiction.
To bring this proposition to the test of a close scrutiny, let us compare'the precise terms in which the jurisdiction of the circuit courts of the United States is granted by the judiciary act of 1789, with those which are-used in the grant of jurisdiction to the‘circuit court of this district, by -the act of the 27th February, 1801.
' The eleventh section of the judiciary act of 1789, so far as it respects this question, is in these words: “That- the circuit courts shall have original cognizance, concurrent'with the courts of the several states, of all suits of a civil, nature, -at. common law or in equity, where the matter in dispute exceeds five hundred dollars; and the United States are plaintiffs or- petitioners, or án alien is a party, or . the suit is. between a citizen of the state- where the §pit is brought, and a citizen of another state.”
The- fifth section of. the act of\ih.e 27th February, 1801, giving.
Haying placed the.se two sections-in juxtaposition, for-the purpose of comparing them together, I will'how proceed to examine the particulars, in which it has been attempted to be maintained, that the grant:of jurisdiction to the circuit court of this district, is more extensive than that to'the other circuit courts of the United States, so as to enable it to reach this case, which it is admitted the cithers' cannot do. -,
In1 the first place,, we have been told, that in the grant of jurisdiction to the other circuit courts, by the eleventh section of the'judiciary act- of 1789, the'words “concurrent with the courts óf the several, states,” are found; whi?h words are not contained in- the fifth , section of the act of the 27th February, 1801, giving jurisdic,-tion .to the circuit court of this district. It is argued, that these words are restrictive.in their operation, and limit the jurisdiction.of those courts to. those cases only, of which the state courts could tafee cognizance, át the time,the judiciary act of Í789'was. passed. That as the ordinary jurisdiction of the state courts did not then extend to .cases -arising under the constitution and laws of the United States, therefore the jurisdiction of the circuit courts, given by the eleventh ¡section of that act, did not extend to those cases, because it was ,de-: . dared to be concurrent, and consequently only coextensive.
. This position is, in my estimation, wholly indefensible. I think it a proposition capable of. the clearest proof, that the insertion of the words “ concurrent with the courts of the several states,”, was not intended to produce, and does not produce, any limitation or restriction whatsoever, upon' the jurisdiction of the. circuit courts of the United States.
No such consequence could follow,’ for this obvious, reason, that the state courts could themsélves rightfully, take cognizance of’ any question whatever which arose in a-case before them, whether grow-, irig out of the constitution, laws, and treaties of the United States; or, as is said in the eighty-second nuniber of the Federalist, arising under.the laws of Japan. The principle is, as laid down in the num
From these quotations, it is apparent, that no;restriction can havébeen imposed upon the jurisdiction. of the circuit courts of the United States by words which make.it concurrent.with, that of the courts of the states; wberi it is.admitted, that there is no question .which can arise' before "them, iiv. a civil case, which they are'not '•competent and indeed, bound to decide, according to the -laws applicable. to the question; whether they be. the constitution, laws' and treaties of the United States, the laws-of-Japan, or, any other foreign country on the face.of the earth. , '
• The same number of the Federalist already referred to, furnishes the obvious reason why these words were inserted. It is there said,, that amongst otheb questions which had ariseti. in relation to the constitution, One was whether the jurisdiction of the .federal courts was to be exclusive, • or whether the state cqurts'would possess a' concurrent jurisdiction?. The author; reasons .upon the subject; quotes the terms in which the judicial power of the- United States is vested by the constitutipn; states that these terms: might be construed as importing'one or the other of two “different significations;' and then, concludes thus:'-“The first excludes, the last admits, the concurrent jurisdiction of the, state tribunals, arid as the first would'
Congress cannot,-indeed,' confer jurisdiction/ upon any counts, blit such -'as ex'ist'tinder the constitution and laws of the'United States, as is said in Houston y. ;Mó6re,/-5’Wbeat. 27; although it is-said in,the same case, the .state ^courts’may exercise .jurisdiction on--cases authorized. by the láws-óf thestate, andnot- prohibitedby the-exclusive jürisdictión of; the federal courts. . Tbit, however, is not .because they havebad; or can. have, any portion of 'the judicial- power ib'f ;the United States, as .suchj impartpd .to them.; but; because,byréas'qn of •their original, rightful judicial-power, as'-state courts, they árg-^om'.petent to- decide all.questions growing bat-of all'hiws-which.arise before them: and accbi-dingly, tji'e framers of the judiciary act,proceeding on the- idea that -questions -arising under the constitution, .la ws and-'treaties, of '.the - United--States,; might a rid would be presented and decided'in, the'st'aíe cpúrts,- inserted- the £5th .section;by /which those cases,'under certain circumstances,; might be brought by writ bf error,- or appeal to this Court,-
The-difference-in the .'phraseology of the.two sections has been -.advened to. It'.has been said -that'-the words in the' 11th-section of the judiciary a'ct bf-T7.89, are all-,suits of a civil nature,.at,common law, or in.équity.;. and those in the 5th 'section of .the act of, 18ÓI, giving- jurisdiction to thé- circuit court -of this district, are all -'rises •in law and equity.” Now,.-it is impossible‘to maintain that-there is any-differencedn legal effect between-these two .modes of expresdon. ■ What is-a case" in-law or equity?, .1 - give -rne answer in the •language of the/latp Chief- Justice of;this/Cpürt: '££ To'come within this description, a .question must assume a legal form, for forensic litigation,-and judicial- decision.”'. And what is a suit?, I give the -answer also ip-.the language of the late- Chiéf Justice, who, in.-3d Peters, 4.64,.says,- in .delivering the.ppinion of the Court,£C if a right is Migated between parties in a court of-justice, the proceeding by which.-.the deeision of the court is sought, is,a suit.” It is then unquestionably .true, that the- court --.which; has jurisdiction over all
When, therefore, wé suppose , a case in which the-< plaintiff -and defendant are . citizeps of different states; (the one being a citizen of the state where, the suit is brought,-) and in .which the'.value of the ■matter in dispute is five hundred dollars; with these" parties,, and a éubjecí matter of this value, all the- circuit-.courts of the United Stages can .take'- cognizance of it;, whether it'shall-have'arisen under the' constitution,'- laws or treaties-of the United States, the; laws-of'1 a state; or .of any foreign, country, having .application to. the case. Whenever, therefore, it is said that those courts .cahnot take .cogni-' ■ zance of casesjn -láw and equity arising under'the constitution, -laws or- treaties of the ’United States, if. is only meáot' to, sáy‘that they cannot do it on account óf the character of the questions to be decided, unless the parties, and the value of the subject matter come within-the description-of the- 11th section; but when "they- do, there cannot be a possible doubt., , And this will explain the case óf a patentee-of an invention, referfed'to in the argument; to whom a right to institute a. suit in the circuit- eourts, has beén-given by special legislation. The only-effect'of that is,, that such, a patentee can. sue .in the circuit courts, on- account of the' character of the cáse,without- regard to the-character of the party, aS to* .citizenship, or the value of-the matter in-dispute; whereas,-without such" special' legislation, he -could have sued in. the-circuit courts, if his character ' as a. party, and the value of the matter in.dispute, had brought his case within the description of the 11th section of the judiciary act. . in the case óf McCluny v. Silliman, however, this .difficulty did- not cjxist; for it is distinctly stated in that case, page 601, that the parties to that controversy-were competent to sue. under the 11th section, being citizens of different states; and yet. this Court-refers to and adopts the response, which they had given, to the- question' stated in MTntire v. Wood.; which, answer-was"in these words: “that the circuit .court did- not .possess the power,-to issue-the mandámus moved for.” .
It has'been attempted to be maintained in the argument,-that the circuit court of .this district has-a more extensive jurisdiction than
We áre then referred to the-eleventh ;seefion of the-act of the 13th of February,'11801, by -which jurisdiction' is given to the circuit courts .thereby estáblished, over “ all cases in law or equity, arising Under, the constitution' and. laws of the United States, and treaties made, or which'shall be made under, their authority.”
Even conceding, for the present, all these - assumptions in favour •of th'e argument, it wholly fails to sustain the .position contended • for.' To ¡prove this, I need only refer to my previous reasoning in this case; .by which'l have shown, that.under the eleventh section of the judiciary act of 1789, the circuit courts had as ample, jurisdiction in-all cases arising under the. constitution, laws and treaties of the1 United States, as is given them by the section now under consideration; subject only to-the- two-limitations as to parties, and value of the-matter in dispute. So that beyond all question, the-only difference is, that by the section how under consideration, the circuit • courts could take cognizance on account of the,character o( the case, no matter who
yveve
the parties, or what; the value -in dispute? whereas, by the eleventh section of the judiciary act, they could take cognizance of the same questions, provided the parties were, for example, citizens of different states, and the matter in dispute was of the value of- five hundred dollars. And yet, as I have already stated, ,m M‘Cluny v. Silliman, in which the parties corresponded to the requirements of the law, and there w'as no question raised as to the value of the matter in dispute, this Court reaffirmed the proposition,
In the next place, we not. only find that in some sections the term cognizance, or jurisdiction, {which are synonymous,)-is u'sed, whilst-in others, fhe term power is made use of; but in' .the'very same section,; that-is, the thirteenth, in relation to .the Supreme Court, both terms are used.thus: — “The Supreme Court shall have, exclusive jurisdiction of all controversies of a civil nature, where a state is a patty, except,” &c:; and in the same section, “and shall have power ..to issue writs.- of prohibition to the district' courts.” &c.
Again:. The act.of 1.789, after defining the jurisdiction of-the different courts in different sections, viz., that of, the district courts in the -ninth, that of the circuit court- in the elevénth, and that of the Supreme Court in the thirteenth, together with the :power to issue writs of prohibition aiid mandamus; proceeds in subsequent sections to give certain powers to all the courts of the United States, Thus, in the fourteenth, to issue writs, of scire facias, habeas corpus, &c.; in the. fifteenth, to require the production of books and writings; in the 17th, to grant new trials, to administer oaths, punish contempts,
But it seems to me, that there is an argument to be derived from the nature arid character of the writ of mandamus, and the legislation of congress in relation to it, which is, of itself, decisive against the power of the circuit court to issue it. It is declared by'all the English authorities, from which in general our- legal principles are drawnj to be a high prerogative writ, Accordingly, it issues in England only from the king’s bench, in which the king did formerly actually sit'in person;, and in which, in contemplation of law, by his judges, he is still supposed to sit. It never issues; but fo command the performance of some public duty. Upon this principle, 5 Barn. & Ald. 899, the court of king’s bench refused a mandamus to a private tiding corporation, to permit a transfer of stock to be made in their books; declaring that it was confined to cases of a public nature, and that although the' company was incorporated by a .royal charter, it' was a mere private partnership. Upon the same principle, I believe that it may be affirmed, without exception, unless where a statutory provision has been made, that .in every state, of the Union, where, the common law prevails, this writ issues only from the court possessing the highest original common law jurisdiction. The congress of the United States adopted the same principle, and by the thirteenth section of the judiciary act of 1789, gave to the Supreme Court of the United States, power in express terms, to issue writs of mandamus, in cases warranted by the principles and usages of' law, to. any courts appointed, or persons holding office under the authority of the United States,” thus covering the whole ground of this high prerogative writ. If then, there ever were a case in which the maxim that expressio unius, est exclusio alterius, applied, this seems to me to be emphatically that case. It is of the nature of the writ, to be issued by the highest court of the government; the Su
Finally, it. was argued, that if all the other sources of power fail- ' ed,.there is a sufficient one to be found' in .that section of the act .of 1801, establishing the circuit court of this district, by which it'-is enacted, that the laws of Maryland as they now exist, shall ;be, and-continue in force in that part of the district which was ceded by that .state to the United States, &c.' The- argument founded upon this section, is in substance this: The laws of'.Mary land, are de-. elarecjf to be in force in this part of the district; the common law of England constitutes a part of those laws; by the common law, in' such a case as this, a writ of mandamus would lie: therefore, the circuit court of this district can issue a mandamus in this case. This part of the argument proceeds upon the principle, that the adoption-of the common law, per se, authorizes the issuing of the writ. But, it must be remembered, that the adoption of the common law.here, cannot give any greater power, than the same common law would give to the courts of'Maryland, from which state it is adopted. Now, in M‘Cluny v. Silliman, it was decided, that a state court could not issue, a mandamus to an officer of the United States; consequently, it follows, that no court in .Maryland c’ould have issued the writ in this casé: and yet, the argument which I am now considering; seeks to maintain the position, that whilst it is conceded that a Máryland court, with the common law in full force there, could not have issued, this writ, the circuit court of this district has the authority to do so, by reason of the adoption of that very law which would not give ,the authority to do it there.
It does seem to me, that to state this proposition is to refute it. The' object of this provision appears, to me to have been, plainly this: That the citizens of that part of this district, which formerly belonged to Maryland, should, notwithstanding the cession, continue to enjoy the benefit of the same laws to which they had been accustomed ; and that, in the administration of justice in their courts, ther should be the same rules of decision: thus placing the citizens of this district substantially in the same situation in this respect, as the citizens 'of the several states; with this difference only; that,
. The result of that adoption, as it regards this question may, as it seems to pie, be summed up- in this . one conclusion:-. That, as in Maryland the common law is in full force which authorizes the writ of mandamus; and yet a Maryland court can only issue it to a Maryland officer, and not to an officer of the United' ■ States; so here, the same common law, upon the same principles, would authorize the circuit court of this'district to issue the writ to an officer of the District of Columbia, the duties of whose office pertained to the local concerns of the district; but not to an officer of the United States.
Under every aspect in which I have viewéd the question, I feel'a thorough conviction, that the circuit court of this district had not power to issue the writ in question; and, consequently, I am of opinion that the judgment demanding a peremptory mandamus, should be reversed.
Notes
I derive my knowledge of the fact that the Lord'Proprietary sat in person in the provincial court, from a manuscript work of much value, hy J. V. L. M'Mahon, es.quire; whose History of Maryland, from its first Colonization to the Revolution, is well kno-yvn to the public.