
    Amos Kendall, postmaster general of the United States, plaintiff in error v. The United States, on the relation of William B. Stokes et al.
    Contracts for carrying the mail of the United States, were made by S. & S., with the postmaster general of the United States, out of which certain allowances and credits were made in favour of S. & S., by that officer; and the amount of the . same was passed to the credit of S. & S., with the general post office. The successor of the postmaster general struck out the allowances and credits in the accounts, and thus a large sum of money was withheld from the contractors. S- & S. presented a memorial to congress; and an act was passed, authorizing and directing the solicitor of the treasury of,the United States to settle and adjust the claims of S. &. S., according to the principles of equity; and directing the postmaster general, to credit S. & S. with whatever sum of money the solicitor should decide should be due to .them. The solicitorof the treasury made a decision on the claims of S. &. S., and communicated the same to-the postmaster’general; who, thereupon, carri&ti to the credit of S. & S. a part, but refused- to credit i part of the amount allowed by the solicitor. S. & S. applied to the President of the United States, who referred the subject to congress.; and the senate of the United States determined that no further legislation on the subject was necessary, and that the decision of the solicitor of the treasury ought to be complied with by the postmaster general. The postmaster general continued to withhold the credit. S. & S. applied to the circuit eourt of the United States for the District of Columbia, for, a mandamus, to be directed to the postmaster general, commanding him to credit them with the amount found to be due to them from the United States, according to the decision of the solicitor of. the treasury. A peremptory mandamus was finally ordered, and the postmaster general brought the ease before the Supreme Court, by a writ of error. ,By the Court — It haq been considered by the counsel on the part of the postmaster general that this is a proceeding against him to enforce-the performance of an official duty, and the proceeding has been treated as an infringement on the executive department of the government; which has led to a very extended range of argument on the independence and duties of that department; but which, according to the view taken by the Court of the case, is entirely misapplied. We do not think the proceeding in this case interferes, in. any respect whatever, with the rights and duties of the executive; or that it involves any conflict of'powers between the executive and judicial departments of the government. The mandamus does not seek to direct or control the postmaster general in the discharge of his official duty, partaking, in any respect, of an executive, character; but to enforce the performance of a mere ministerial act, which neither he nor the President had any authority to deny or control. The ’ judgment of the circuit court was affirmed.
    JBy the act of congress directing the solicitor of the treasury to adjust and settle the accounts of S. &. S., the postmaster general is vested with no discretion or control over the decision of the solicitor; nor. is any appeal or review of that decision provided for by the act. The’terms of the submission was a matter resting entirely in the discretion of congress; and if 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, or the solicitor, in that affair. It is unnecessary to say. how far congress might have interfered by legislation after the report of the solicitor: but if there was no fraud or misconduct in the arbitrator; of which none is pretended or suggested; it-may well be questioned whether S. & S. had not acquired such a vested right as to be beyond the power of congress to deprive them of it.
    The right of S. & S. to the full amount of the credit, according'to the report of the solicitor of the treasury, having been ascertained and fixed by law; the enforcement of that right falls properly within judicial cognizance.
    It was urged at the bar', that the postmaster general ifras alone subject to the direction . and control of the President of the United States with respect to the execution of the duty imposed on him by the law under.- which the solicitor of the treasury acted; and this right of the President was' claimed as growing out of the bbligation imposed upon' him by the constitution, to take care that the laws be faithfully executed. By the Court — This doctrine cannot receive the sanction of this Court. It would be vesting in the President a-dispensing pow'er, which has no countenance for its support in any part of the constitution ; and is asserting a principle, which, if carried but in' its results to all cases failing within it,, would be clothing the President'with a power to control the legislation of congress, and paralyze the administration of justice.
    To contend that the obligations imposed on the President to see the laws faithfully executed, implies a power to forbid their execution; is a novel construction of the constitution, and is entirely inadmissible.
    The act required by the law to be done by the postmaster general is, simply to Credit S. & S. with the 'full amount of the award of the solicitor of the treasury.' -This is a precise, definite act, purely ministerial; and about which the postmaster general has no discretion whatever. This was not an official act in any other sense than being a transaction in the department where the books and accounts were kept: and was an official act in the same sense that an entry in the minutes of the Court, pursuant to an order of' the Court, is an official act. There is no room for the exercise of discretion, official or otherwise: All that is .shut out by the direct and positive command of the law; and the act required to be done is, in every just sense, a mere ministerial act.
    The common law,.as it was in force in Maryland when the cession of the part of the state within the District of Columbia was made to the United States, remained in force in the district. The writ of mandamus which issued in this case in the district court of the District of Columbia, must be considered as it was at' common law, with respect to its object and purpose; and varying only in tíie form required by the different character of the government of the United States. It is a w-rit, in England, issuing out of the king’s bench, in the name of the king, and is called a prerogative writ, but considered a writ of right; and is directed to some person, corporation, or inferior court, requiring them to do some particular thing, therein specified, which appertains to their office, and-which is supposed to be consonant to right and justice : and where there is no other adequate, specific remedy, such a writ, and for such a purpose, would seem to be peculiary appropriate to the presen]' cáse. The right claimed is just, and established by positive law; ánd the duty required to -be performed is clear and specific; and there is no other adequate remedy.
    The cases of M1 In tire v. Wood, 7 Cranch, 504-, and M'Cluny y. Silliman, 6’ Wheat. 349, have decided that the circuit courts of the United State.s, in.the several states, have no power to issue a mandamus against one of the officers of the United States.
    The result of the cases of M'lntire v. Wood, an’d M'ClUny -v.. Silliman clearly is, .that tlie'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 whoIS of that power has not been communicated by law to the circuit courts of-the United States in the several states. It is a dormant power, not yet called .into actioffiand vested in those courts. And, there is nothing growing out of the official character of a party, that will exempt him'from1 this writ; if the act- to be performed is merely .ministerial.
    It is-a sound principle, that in évery wejl-organized government the judicial.powers sho.uld be co-extensive,with.the legislative; so far, at least, as .they are to-be enforced by judicial proceedings.
    There is, in the District of Columbia, no division of pbwersbetween the general and state ■ governments. Congress has the entire control over the district fbr every „ purpose of government; and it is reasonable to suppose, that in organizing a judidial ^ department in this district, all the judicial power necessary for the purposes o£ government would be vested in the courts of justice. The circuit court-in the district is the highest court of original jurisdiction; and, if the power to issue a mandamus in such a case as that before the Court exists id any court, it is vested in .that court.
    At thg date of the act of congress establishing the government of the' District of Columbia, the common law of England was, in force in Maryland; and df course 'remained" and continued in force in the. part of the district ceded by Maryland to -tlie United States: The power-to issue a mandamus.in a proper case, is a part.of the common law; and it'has been fully, recognised as, in practical operation in a case decided in- the court of that state.-
    The power to issue the writ of mandamus- is, in England, given to' tne king’s bench .only, as having the general supervising power over all inferior jurisdictions and officers; and-is co-extensive with1 judicial, power. And the same theory prevails ■in the state governments of-the United- States, where the common law is adopted, and governs in the administration of justice; and the power of issuing this writ is generally confided to the highest court of original jurisdiction.
    Therd can be ml doubt-but that, in the state of Maryland, a writ.of mandamus might be issued to an executive officer commanding him to iqrform a ministerial-aet required of him by the -laws and, if it would lie in that state;.tüeré can be no' gó;pd . .reasbn why it should not lie in the District of Colqmbia, ih analogous cases.
    The powers of the Supreme Court of the United States, and of the circuit courts of the United States to issue writs of mandamus, granted by tbe-l4th section of the judiciary act of 1789, is only for the purpose of bringing', the case to a final j'udg- ‘ ment or decree, so that it may be reviewed. The mandamus does not direct the inferior court how to proceed, but only that it must proceed, according to its own judgment, to a fihal determination;, otherwise'it cannot.be reviewed in the appellate .coprt. It is different in the circuit court of the District of Columbia, under the adbption of the-laws of Maryland, which included the common law.
    The power of the Circuit court of the District of Columbia to exercise the jurisdiction to issue a writ of mandamus to a public officer [o do.an act required-of him by law, results'from the 3d section of the. act,-of congress, of'February 27,1801; Which declares that the court and- the judges thereof shall have all the' power bylaw. vested in the circuit courts of the United States. The circuit courts referred to were'those established by the act of February 13th, 1801. The repeal of that law,' fifteen months afterwards, and after the circuit. court for this district had'been Organized, arid had gone into operation, under the act' of 27 February, 1801; could not, in any manner, affect that-law any further than was provided by the repealing act.
    It was not an uncommon course of legislation in the .states, at an early day to adopt, by reference, British statutes; and this has been the course' by legislation in congress, in many instances, when state practice and state process has been adopted. And such adoption has always'been considered as referring to the law existing at the time of adoption : and no subsequent legislation has ever been supposed to affect'it; and such must, necessarily, be the, effect and operation of 'such, adoption.
    No court can in the ordinary administration of justice, in'common law proceedings, . exercise jurisdiction ■ over a party unless he shall voluntarily appear, or is found within the jurisdiction of the court, so as to be served with process. Such process cannot reach the party beyond the territorial jurisdiction of thé court. This is á, personal privilege, which may be Waived by appearance; and if advantage is to be taken of, it, it must be by plea, or some other mode, at an early stage of the-cause.
    IN error to the circuit court of the United States in the District of Columbia, for' the- county of Washington.
    ' .On the twenty-sixth'day of May, 1837, William.' B, Stokes, Rich-, ard C. Stockton, Lucius W, Stockton, and Daniel Moore, presented a petition to the circuit court'.of the District of Columbia, for the county of Washington, stating, that under contracts duly and legally made by them with the late William T- Barry, then postmaster general of. the .United States, a'nd duly authorized by law, they, were .entitled to certain credits and.allowances on.'their contracts for the' transportation of the.mail of the United States,;- that the credits and. allowances were made and given to them on their contracts, and 'amounts of'money actually paid on such accounts; that .sometime in 1835,' William T. Barry resigned “'his,'situation as postmaster general, ánd.Amos Kendall was appointed to the office; that after he had entered on the duties of his. office, he Undertook to-re-examine the, contracts entered into by his predecessor, and the credits and. allowances made by him; and ordered and directed the allowances and credits to be withdrawn-, and the petitioners récharged' with divers payments they had'received!
    The petitioners state that-they .were dissatisfied with these proceed-: ings of -Amos Kendall, ¿S' postmaster general; and, believing he had exceeded his authority,.and being unable to adjust their differences' with him, they addressed a memorial to the congress of the-United States. A copy of the memorial was annexed to the petition..
    The memorial stated, at large, all thé circumstances which the petitioners considered as affecting their case; the proceedings’ of- the postmaster general in the matter; and the heavy grievances done to the memorialists by the course adopted by- the postmaster general. They ask such proceedings on the part of congress as its wisdom and justice may direct.
    The petition states that congress passed an act, which was approved by the President of the United States on the 2d of July, 1836, which act provided, “ that the solicitor of the treasury be and hé is hereby authorized and directed to settle and adjust the claims of William B. Stokes, Richard C. Stockton, of Maryland, and Lucius W. Stockton, and.Daniel Moore,-of Pennsylvania; for extra services performed by thém, as contractors for carrying the mail, under and by virtue of certain contracts therefor, alleged to have been made and entered into with them by William T, Barry, late postmaster general of -the United States; and -for this purpose to inquire into-, and determine the, equity of the. claims of them, or any of them, for or on account of any- contract or additional cohtract with the said postmaster general, on which their pay may have been suspended by the present postmaster general; and to make them such allowances therefor, as upon a full examination of all the evidence máy'seem right, according to the principles of equity; and that the said postmaster general be, and he is hereby directed to credit such mail'contractors with whatever sum or sums of money, if any, the said solicitor shall so decide to be due to them for or on account of any such service or contract; and the solicitor is hereby authorized to take testimony,.if he shall judge it to be necessary to do so; and that he, report to congress, at its next session, the law and the facts upon which his decision has been founded: Provided, the said solicitor is not authorized to make any allowance’ for any suspension, or withholding of money by the present postmaster general for allowances' or overpayments made by his predecessor, on route number thirteen hundred and seventy-one, from Philadelphia to Baltimore, for carrying the-mail in steamboats, when it was not so carried by said Stockton and Stokes, but by the steamboat company; nor for any suspension or withholding of. money as aforesaid, for allowances or over-payments made as aforesaid, for carrying an express mail from Baltimore to York or Lancaster; nor for any suspension'or withholding of money, as'aforesaid,' for allowances or overpayments, made as aforesaid, on route nfimber thirteen hundred and ninety-one, from 'Westminster to M‘Connerstori, as described in the improved- bid; nor for any suspension or withholding of money, as aforesaid, for allowances or overpayments, as aforesaid, on the route from Baltimore to Wheeling, for funning a certain daily line to Hagerstown and Wheeling, from the first of September, eighteen hundred and thirty-two, to the first of April, eighteen hundred and thirty-three, when the line referred to only run tri-weekly; nor for any suspension or withholding of money,-as aforesaid, for allowances or overpayments, made as aforesaid, on the route from Baltimore to Washington, under the contract of eighteen hundred and twenty-seven : but nothing in this proviso shall prejudice any application they may make, hereafter, in reference to these routes, if they shall think it proper to-make such application.” ,
    : The petition states, that in pursuance and in execution of this act, Virgil Maxcy, being solicitor of the treasury, did proceed to examine adjust and settle the said claims; and on the 12th day of November, 1836, did make' out .and transmit to the said Amos Kendall, postmaster general, impart, his award and decision upon certain items of said claims so referred to him; and on the 23d of November, 1836, he communicated' to the postmaster general his decision and award on- the residué of the claims of the petitioners.
    ■ The decision of the solicitor of the treasury of the 1,2th of December,. 1836, after stating the particular items of account, from which, the balances arose, was as follows:
    “I, therefore", in pursuance of the authority conferred on me, by ■the aforementioned act of congress, make allowance to said Richard C. Stockton, for his said claims up to the 1st of April, 1835, of the above sum of eighty-three thousand two hundred and seventy-eight dollars.
    I, also, by virtue of the same authority, make allowance to. said Stockton, for his said .claims for extra services, from the 1st of April to 31s.t of December, 1835, of the said sum of, twenty-six thousand eight hundred ánd- sixty-two dollars.
    A- claim for interest having been made, I have postponed the' consideration of it until the equity'of the other1 claims of the gentlemen-. named in the title of' the act, sháll have' been inquired into and 'determined.”
    On the 22d of November; 1836, the solicitor made a final award, which was also communicated by him to the postmaster general. .That, award', after, setting forth the items of the accounts presented and .established in 'the judgment of the. solicitor of the treasury against the United States, was-::
    
    “I have examined the.evidence touching the above claims, and find due to the petitioners, or to Richard- C.' Stockton, the following sums:' For additional daily mail to Washington, thirty-four thousand/ two hundred dollars. For compensation for carrying .the mail in the spring of 1831, between'Baltimore and Philadelphia, and for other services connected therewith, less two hundred and ninety-four dollars, the. sum of eleven "thousand seven, hundred and nihety-s'even dollars and sixteen cents. ■ Claims for interest, four thousand eight hundred and thirty-six dollars' and eighty-nine cents; one thousand six hundred and sixty-four dollars.and seventy cents, and’three hundred and ninety-two dollars and thirty-four cents.”
    .'The petitioners state, that under-and by virtue of the award of the solicitor of the treasury, they became entitled, to have the sum óf one hundred arid sixty-two thousand seven hundred and twenty-seven dollars and fite cents carried to their credit; or at least, after allowing some .deductions therefrom made by the said solicitor., with their assent, the sum of one hundred and .sixty-one thoüsand five hundred and sixty-three dollars and eighty-nine cents, as the amount of principal and interest due to them by the terms of the award and decision. .
    But the said postmaster general, although fully notified of-the premises, and after a considerable delay, only so'-far obeyed arid carried into execution the said act of congress and said award, as to direct and cause to be carried to the credit of the petitioners, the sum.of one hundred and twenty-two thousand one hundred and one dollars.and forty-six cents, which, said last mentioned sum of money has been accordingly paid, or credited to the petitioners; and he has from that time, and does still refuse, omit, and neglect, notwithstanding the' provisions of said act of congress, apd the said award and decision of said solicitor of the treasury; so made, communicated and reported, as aforesaid, to pay, or credit to the petitioriers the residue of the said sum so awarded, being the sum of thirty-nine thousand four, hundred and sixty-two dollars and forty-three cents; or to credit or pay to the petitioners, or either of them, the. interest upon the said, balance so unjustly and illegally withheld.
    ■ The petition' states, that after the refusal, omission, or neglect of Amos Kendall, to execute his duty, by obeying the act of congress, in passing the amount awarded to his credit; the petitioners communicated the facts of their case to the President of the United States, requesting him to cause the said act of congress to be executed: who thereupon, transmitted the same to Amos Kendall, the postmaster general; and having received a reply to the same, stating why he had thus refused to comply with the award; and suggesting an application to congress for, further legislation. The president, in December, 1836, transmitted this reply to .the petitioners; .and in his communication says: “ It appearing that there is a difference of opinion between the solicitor and the postmaster general, upon the extent of the reference under the law to, the solicitor, the postmaster general-having yielded to what he believes to be all that was submitted by the law to the solicitor’s decision, and paid the same. But, congress being now in session, and the best expounder of the intent and meaning of their own law, I think it fight and proper, under existing circumstances,.to refer it to that body for their decision. I deem, this course proper, as the difference in opinion about the extent of the submission, under 'the law, arises between the head of the post office department and the solicitor of the treasury; and, as it appears, the solicitor has reversed, in part, his decision and award.”
    The petitioners, in consequence of this correspondence, presented to-congress a memorial; which, in the senate, was referred to the1 .committee on the judiciary.
    •The petition refers to the reports of the judiciary committee of tne senate, of January 30th, 1837, and February 17th, 1837, and to the correspondence between the postmaster general and the chairman of the committee: cqpies of which are annexed to the petition. The concluding part of the report of the judiciary 'committee, of January 30th, 1837, was as follows:
    “That congress intended the awaru of the solicitor'to be final, is apparent from the direction of the act, ‘ that the postmaster general be, and he is' hereby, directed to credit such mail contractors with' whatever sum or sums of money, if any, the said solicitor shall so decide to be due to thorn,’ &c. If congress had intended to revise the decision of the solicitor, the postmaster general would not have been directed to make the payment, without the intervention or further action o£ congress.” Unless it appeared, which is not suggested by any one, that some cause exists which would vitiate or set aside the award between private parties before a judicial tribunal';' the committee cannot recommend the interference of congress to set aside this award, and moré especially as it has been made by a high .offieer selected 'by the government; and .the petitioners h^ve been subjected to the trouble and expense of investigating their claims before a tribunal created by congress itself.
    • “It appears that’ since the award Was made by the solicitor, the postmaster- general has paid .to' the petitioners the sum o.f one hundred and twenty thousand nine hundred'and thirty-eight dollars and thirty cents, leaving the balaUce of- forty thousand six hundred and twenty-five dollars and fifty-nine cents unpaid of the sums awarded in favour of the petitioners. From the view which the committee have taken, the conclusion. at w.hich they have arrived is, that the whole amount decided to be due, and owing to the petitioners, by the solicitor of the treasury, ought to be paid to them-out of the funds of the post office department; according to the-directions of the act, enti 'ed ‘An act for the relief of William B. Stokes, Richard C. Stockton, Lucius W. Stockton, and Dani,el Moore;’ and that no further'action of "congress is necessary.; therefore, the committee recommend the adoption of the following resolution: '
    
    “Resolved,'That the postmaster general is fully warranted in paying, and ought to pay to Wiljiam B. Stokes and others, respectively, the full -amount of the award of the solicitor of the treasury.” .
    The report of February 17th, 1837, on the message of-;the president of the United States, of the'15th February, 1837, with the.aecompanying documents in relation to the claims of Stockton and Stokes and others, contain the following: '
    “ 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.. They therefore recommend the adoption of .the resolution heretofore reported by the cbmmittee.”
    The petition to the Court proceeds to state, that the principal ground of the refusal, neglect, and omission of the.postmaster general to execute and obey the act of congress, and to give the petitioners credit for the full amount of the award of the solicitor of the treasury; was, as'represented by him, that the said solicitor had transCended the authority .created and conferred on him by.'the act,-in .so awarding and deciding, whereas the contrary is the fact; and the solicitor, on 'being apprized that a doubt existed as to the extent of his authority, he did submit thé said question to th,e attorney general of the United States, to obtain his opinion. The opinion of the áttorney••general confirmed the construction of the law given by the solicitor of the treasury.
    The petition.proceeds to state, that the “petitioners conceiving and bélieving that they are and have been entitled tó the whole sum so. awarded by the said solicitor passed to their credit on the books of the post office department, and to receive the amount which, after the said .entry, should appear justly due to them, with legal interest upon the balance; have applied to the said Amos Kendall, postmaster general, as aforesaid, to have the said credits, so entered, .arid the said moneys so paid, which he has .continually refused, and’ , still .refuses and neglects to dp: and the congress of the United States will not pass any other or further law, as it is believed, merely because they haye already passed one sufficient to meet the cáse;’so that .the only means of obtaining the money'which.is justly due to the -petitioners, is, by application to your honourable Court.
    “Wherefore, your petitioners do respectfully-pray that your honours, the preinises considered, will award the United-States’ writ of mandamus to be directed to the said Arnos Kendall, postmaster general of the United States, commanding him—
    1. “ That he shall fully com.ply'with, obey,.and execute, the aforesaid act of congress, of July 2d, 1836; by crediting your petitioners with the full and entire sum so awarded, as aforesaid, in their.favour, by the solicitor of the treasury, as aforesaid, in conformity with said award and decision.. ■
    2. “ That he shall pay to your petitioners the full amoufit so awarded, with interest thereon, deducting only fhe amount which shall be justly charged, or chargeable to your memorialists .against the same.’; .
    On the ,26th May., 1837, the district court.óf-the county of Washington made a rule; in the case, on the motion-of the relators, by their counsel-: “ That the said Amos Kendall,-postmaster general of the United States, show cause on Thursday, the first of June next, why the said writ of mandamus should .not issue, as prayed by the said memorialists; and that a copy of this order be served on the said Amos Kendall, postmaster, .general, as aforesaid.”
    
      A c<Jpy>of the rule was served ps directed; and was so certified' by tbb marshal of thé District .of. Columbia. Afterwards, on the. 7th of June, 1837, on the motion of the relators, by their counsel; .the court -ordered a maudaiaus, nisi, to issue, directed to the postmaster general; which writ was issued on the. same day.
    Thé mandamus, nisi, after stating-the proceedings which had taken place in the case, proceeded as follows: “ Therefore -you are hereby' commanded and enjoined, that immediately'after the receipt of this writ, and without -delay,.you do fully comply -with, obey,-and execute on your part, the aforesaid act of.-congress, of. 2d July',.1836; by crediting said mail, contractors with the full and entire sum so awarded and decided, áá aforesaid, to be due to them by the solicitor, of the-treasury, according to the true intent and meaning .of the said award and decision; so that complaint be not again made to the said circuit court: and that you certify perfect obedience to, and due-execution,of this'writ to.the said circuit cpurt, On Saturday the tenth day of June instant; or thatypu do-at. ten o’clock of that day, show'cause .to'the'said-Court; why-you have nig so done, as commanded:’'’
    On the 10th of Juñe, 1837, the relators, by their counsel; and •Amos Kendall,-by-lijs counsel, appeared” in court; and further time-was’given, Qp-rhotioh, to Amos Kendall to file his answer.
    On the 24th day of June, 1837, the answer of the postmaster general was filed.
    ’ The answer ..contained the following causes'“for declining obedience to thé order of the court;” with a full argument upon each of théni :
    First. . “ It is- doubted whether, under- the. constitution of the United. States, it confers on- the judiciary department of the government, authority-to control .the executive department iii theuxereisé of-its functions, of whatsovey character. ■
    Second. “ If, according, to thé constitution, the. circuit court for the District of Columbia might be clothéd by law to issue a mandamus in such a case, no such power has been conferred upon them by the act of congress.
    Third. “If, by-the constitution, cóngreSs can clothe the courts with'authority to issue' writs- óf-mandámus against executive. officers, as such; and if they Wave vested the general power in this court by law; this is not ,a casé in which that power can be lawfully ex- - ©raised. . ' -
    
      Fourth'. “ The court have ordered the postmaster general to perform a legal impossibility.”
    To this answer -of''the postmaster general, the opinion of the attorney general of the United States on the whole of the case, and sustaining the views of the postmaster general, was annexed.
    On the 13th July, 1837, the circuit court ordered a peremptory mandamus', to he directed to the ,postmaster general, to be issued.-. The postmaster general prosecuted this writ of error.
    The ease wás argued by Mr. Key and by Mr. Butler; the 'attor-ney general, for the plaintiff in error; and by Coxe and .Mr. Johnson for the defendants. '
    Mr. Key, for the appellant:
    The . record presents á case of conflict between two ;of the great! depositories'of the powers of government given by the constitution. The judiciary has assumed' a power which the executive. department resists. It is a power hitherto unknown to the judiciary— hitherto exercised by the executive alone, without question.
    It is avast- power. It annihilates one great department of the government in one of its appropriate functions, if not all the departments ; and vests, to a very considerable and undefined extent,' all power in another.
    The court below denies that there, can ,be any such conflict. . It has not only assumed the power, but-.fortified it by the doctrine that it is to be unquestioned and irresistible. When the court speaks, “ it is in the name of the United States,” “it is the sovereign power that speaks,” and “ commands the proper executive oificers to execute that judgment.” And this doctrine, it is thought by the court, cannot be opposed “without invoking principles which tend to. set the executive authority aboye the restraints of 'law.” '
    ■ As the court has therefore not'merely assumed the power, but assumed it as a sovereign, making the assumption the proof of its Supremacy;- this.do.ctr.ine,' as to the effect of the assertion of the power, may be considered as necessarily connected with that which relates to its nature and validity: and certainly, if such is the effect of the power,' it ought to be considered in such an inquiry.
    We hold; that this doctrine, as .to the effect of the power, is as indefensible as that which led to its exercise; that where the sentence of a court is -brought to any other independent tribunal, to be carried into execution, preliminary questions,-from the nature of things, must present1 themselves to gueh other tribunal,'which it alone-must decide for itself; those questions are: Is this sentence I am-asked to execute, within ,or beyond the jurisdiction" of the court pronouncing it ? -Is it pronounced judicially, or extra-judicially ? If the -former, further inquiry is inadmissible;.for it is to be obeyed; if the latter, unnecessary, for it is a nullity.. -We hold this- principle ás applicable to all the distinct independent-departments of our government. We hold that to prescribe, limits to power' is idle, if the holder -is to be the sole and unquestioned, judge of what the limits are-; if his possession of -the power is conclusively proved by its assertion, he hds unlimited power; and "if any of the depositories of power under our ' constitution-.are placed on such an eminence, it is -strange that the framers,of that instrument should, have thought it necessary to make it' so' complicated. .For, if a safe depository of .such a power was found, the great secret was discovered ; .and the government might have been made extremely simple!
    He did not understand any writer upon- the .constitution as having sanctioned such a doctrine.- On- the..contrary, he should show the very highest authority for a directly contrary doctrine; that occasional conflicts and encroachments upon each other’s sphere of powers by the different-departments of-the government,, were expected to arise; and- that it was thought a matter of security, that each was left-.to. the independent maintenance of its-own rights, and bound by •du,ty to resist the invasions of the others.
    .' Here. then is' a conflict, and the parties.-to this conflict stand on ■ground, of perfect equality; and the question is, where is the pOiver. id dispute?
    That One 6f the partieses a judicial tribunal, givfes.it no superiority. It must show'its jurisdiction • by. something more, than- assuming it. If it cap .show no other .warrant for' it, its sentence is a nullity.
    Net it must be admitted, there is a ■ presumption in. favour • of the judiciary in such a contest.. And it is a just one, arising from a proper respect for judicial proceedings; and) a persuasion that as the úsurpatkm of power is. the most unbecoming, gb it is least of all to be ekpfected there,.
    vfet nothing human is infallible,'and it. may be found there, A court may mistake in'deciding upon the extent of its pwn powers, as on any other- question. > It may honestly believe it'has the power it assumes;' and such :no doubt was the .case with the court where this controversy has arisen. •
    The executive department of the government, upon whom this power was exerted, has felt bound to, question it. Jt has used, the means which the constitution and the laws háve given it to determine the course .which, under such circumstances, it. ought to take;- and cannot b.elieve'that it would be justified in abandoning its duties to the power and control of any other department.
    We assert, therefore, that judicial encroachment is as liable;.to question as legislative;or executive; and this powe.r in every der partment 'to defend itself, and'assert its own independence, we contend :is .the undoubted doctrine of the constitution. Certainly the constitution has assigned limits to the powers of all the departments; and leaves each within its sphere independent. Certainly it is silent '.e.stoany. such power'.being. vested in either;.asjvould eh.able it without question, to encroach upon the powers of the others. He cited, to show noi only thátit was competent for the executive department of the government to résjst, but that it was its duty to resist any encroachment by the" judiciary': Rosp v. Hiniely, 4 Cranch; 269; V Wilson, 407, 410, 41.1; Federalist, 51, No. 324 ; 2 Story.- On the Constitution,.-22,. 23, 24; 3 Story, 458,-459; Elliot’s Debates, Mr. Madison’s Speeeh, 378; Speech, of Mr.-Ames, 397; .2 Dallas, 410;. 5 Wheat. App.-16; Patterson V, United States, 2 Wheat. 226.
    He was gratified that .the contest was brought here. Here, where, all encroachments upon'the constitution would be brought to.the same impartial test; • where, this high' tribunal would watch with double vigilance, and rebuke with, all its dignity, judicial encroachment; 'and'he trusted it would be seen that this instance of .judicial .wrong, would here ..receive judiciál correction.
    " They would show, he thought, in this appeal, á case in which the circuit‘courti had assumed, for the first time, a'power that had not.been and coúld not be .given, to it. He charged it as no wilful usurpation; and believed.it to be only a most unfortunate ánd'.a most extraordinary; error of judgment.
    That power, as appears from its' application by the court and from, their-own statement of it, amounts to this: “The .power to..direct and compel by mandamus the official 'action of every‘phblic officer wherein individual rights are concerned.”
    Such appears to be the principle from.the case to which it has-been applied; What is that case? ■ He referred to the petition of the relators to. the court; tó the act of congress for their relief; 'their letter to the President; the President’s letter to the relators referring their complaint to congress;'and'their memorial thereupon to congress.
    These docu ments, exhibited by the relators themselves, show that when the postmaster general refused to allow them a further credit •on the award, they called on the;President, under his constitutional' power to take care that the laws'were faithfully executed, to require, the postmaster general to execute this law, by giving them the further credit required. And that, when the President'took thé case intq consideration, he referred it to congress to pass án explanatory act; ansi that one house of congress, the senate, took up the case: and in .the language of the'petition; “ will not pass any further law, as there is already a sufficient,one.” Now', this is the case of the relators by their own showing.. Where is it? Certainly not before, the postmaster general. They appealed ‘from his decision to the President; and he referred it, as he had a right to do, to congress: aid the relators ■ acquiesce in this reference, and present their petition to congress, and say, in their.petition tó the. court, “that congress will ■ hot pass another lawj.”,
    To whom, then, snould the mandamus go ? if to any. ' The postmaster general was discharged of the case. It should go to congress,' ,or. to( the President.
    
      2. Thfe court below say, “ every public officer, who neglects or refuses to perform-a mere ministerial duty,'whereby an’ individual is injured, is' legally responsible to that individual, in some form. or. other; anda mandamus is one of the mildest forms of action that, can be used:” making the liability to action, which should of itself prohibit the power of mandamus, the test of its correctness. ' They say “ every public' officer,” including the President.
    Mr; Lee, in Marbury v. Madison, 1 Cranch, 149; says not: though the Court, in-that case, gay, “.it does not depend on the office, but the nature'of the offence; . As to the President, see judge Story’s Constitutional Law, Sd.vol. 419; where It is stated that he is amehable to no civil process, tó an officer of any.department, to the speaker of the house of representatives, should he refuse to sign a la.w. The court asserts its right.-to interfere with all those officers, as to their acts of “mere ministerial duty:”
    Now, the. remedy by-mandamus is. just as.applicable to their acts of.-dlscretionary duty., So it appears in all-the bbbks on the Subject of mandámus..' .So in 19 John.'Rep. 259. . So this Court, in'9 Peters, 604.
    
    . ■ When a'coujf has thé power,to order á mandamus, it goes,- by its supervising authority to an inferior; and goés, and ought to go, as •well to enforce, the discharge of discretionary duties as-ministerial duties: with this only difference, that the command goes,.in the one case, tqdo the prescribed ministerial act;-and in the - other, to proceed and exercise -the discretion, and do the act in the way'that discretion may direct it. -, So that a. mandamus is -as applicable, to discretionary,-as to ministerial acts; and in this cáse, .if any mandamus could issue,' it should have been, not to enter the 'particular credit required, but-such'credit' as the postmaster general should .consider the award.of the solicitor authorized:' for this would not be'a mere ministerial act, but one requiring'the exercise of dis-, cretion. .It is-the- sa'me. as giving-judgment on an award, which surely requires discretion. 9 Peters, 603,- 604; 5 Binney, 104, 107.,
    Fárther: the principle of the court sanctioning this interference With the officers of-other departments, “ whenever individual rights are concerned;” is official action, in which the public, as well as the individual, are concerned. It was- not So.considered in Marbury v. Madison. . That case only meant to allow it where ..there was'no public, but only, an individual interest concerned.
    " -The postmaster general wasto execute a law bf congress affecting individuals, and also affecting .the'public.. That execution first required .of him to examine the solicitor’s award, and the, act bf congress, arid see if it was “so”awarded; that'is, accordingfo the terms-of the law. Then, whatever was “ so” awarded, he was to credit in his department, officially,' so as to bind the government.
    They were, therefore, , executive acts; and it is admitted, in the court’s .opinion, “-that the, President was bound to see when he performed this act, and that he did it faithfully.” . But. the1 court holds, that this power of tha President gives.him no other control over the. officer than to See that he acts honestly, with proper motives; without any power to construe the law, and-see that the executive action conforms to it: that is, the President is only to see to that which he can never see,, at least with certainty, the motives bf his subordinate; gnd is not to see to the conformity bf the executive action to the law prescribing it; which is the very thing he should se ;, and can see, and for which he in responsible. This is quité inconsistent with every opinion of every writer upon this subject; as in letters of Páeificus,.556, 557, 559'; Wilson, 404; Chief Justice Marshall’s argu-> mént .on the case of Jonathan Robbins,,5 Wheat. Rep. 16; Judge Story; 3’ Com. 414.
    Not only is - it the President’s duty to see'how the laws are executed: he ip invested With .discretion as to when they are to be executed. All the laws of congress are to be executed; but not at one and the same time.; Some depend on.others. Some must be postponed, and some executed with despatch. Various circumstances may occur to delay-the execution of .a law; circumstances which the executive department-alone can know. This'is stated'in judge Johnson’s opinion in the Cherokee- c.ase, 5 Peters, 1; and. by the Court-, in 1 Wheaton 1.
    Now the circuit court-assumes to direct and control, all executive officers, in all-these respects. It therefore assumes the power described, as “ the power-to .direct and compel, by mandamus, the official action of every public officer, wherein individual rights are concerned;” and that; where-the President is admitted, in regard to such official action of the officer, to bd-bound by his constitutional duty, to see that the .officer does it faithfully, and. tp determine when He Shall do it.
    The attorney general has.denied, in his.opinion, that such a. power can. be given to the courts., That denial, wé -now. maintain;.
    - It cannot-be -given to the courts, because, it necessarily, interferes with the power1'-of- control given by thé constitution- to the President; “ Whenever á .controlling power or power of appeal is exclusivelylodged in' any person or corporation, the- court'will not grant á mandamus; -This is the case of visitors of colleges, or.others, of spiritual foundation.” Rex v. Bishop of Chester, -1 Wil. -206 Rex y..Bishop of Ely,-2 Term Rep. '2’90.
    It-is impossible-here to question the controlling power of-the President over the postmaster general,-as tp the duty .to which he is. tó be compelled by this proceeding. 1 Here is an act of congress,relating to the public money,’apd requiring the postmaster^general officially to ■ do. a certain act ip relation to jt. As , to this act, the President is'bound 'to have ft executed. • And the President,. On" whom this responsibility is past, is armed by the- constitution1 with full ppwérs. to enable hirp.tO have it fully ánd faithfully executed1. ■For if thié postmaster general will not execute it as .the President thinks it ought to be executed, and the President, acquiesces in this imperfect execution of it, then he violates his'duty in having-the' laws executed. If the postmaster géneral should'think that he is the judge-, and that he ought not .to execute it as the President, thinks it aught to be executed, he should, resign; or the .President should remove him,-and.appoint another, who will execute it.
    Thé President, therefore, on whom the responsibility of seeing the .laws faithfully executed plainly rests; has, under the constitution, full power to fiilfil the duty cast upon, him, and control the postmaster general in the execution of this act'of congres's. Therefore, according to the principle above referred tó,"the court eannat.interfere by mandamus.
    Further: The nature bf this control, and the consequences of affirming the- power of the court thus to interfere with it, will show the unreasonableness of the doctrine. .
    ■ What becomes of the President’s responsibility to have the láws of congress faithfully executed? Here i.s a law to be executed.- .The. President is about to have' it done as congress meant it should be done; but-the circuit court of-the District of Columbia,, interpose',' and command, by mandamus, that '• it shall be done otherwise. He is impeached for-not doing it; or for doing it wrong. . Can he defend himself by showing the mandate Of the court?
    And if the control-is with the court, ought they not to- be responsible for the execution of-the laws.?; And are they? , And shall thát power, which is charged with the duty of executing the laws of congcqss, be irresponsible ?
    Again: Ithas’been shown that the .constitution', casts this- duty on the President; makes him responsible,and .arms him with powers to'fulfil it* Not-so, in either respect, as'to the court. .If they assume the duty, it is by-inference, from their power to try cases' in-law and'equity. No responsibility is pretended;- for, no matter how wrong-they may decide;- there is no .responsibility-for mistakes of judgment. And they aré armed -with no powers to carry out what they may command; it-is'brututn fdlmen.
    Suppose.a peremptory' mandamus tp be the result in this case. It goes against-. Amos Kendall, postmaster general of the United .States. He refuses obediehce. They seqd.an attachment for contempt. It goes against Amos Kendall, ,(as before,) postmaster general of the United Spates. .He is brought before them, and • committed; If, then, the postmaster general of the United States is in jail, is he still' postmaster general ? Or-is his office vacant, and-must the ¿resident appoint another? Certainly, if the controlling power is with' the court,- this is wl>at should be done; .they would thus have the power of removal. And they,' also ought' to ‘ have the power of appointment; for if they have the controlling power, they might get, (in the sainé way they get that,)' by inference, all power, necessary to -make the controlling power effectual,-so as to; appoint such a successor as would carry their commands into effect, in opposition to that of *the.President.' If the court cannot , do this, they would, then sée that they had' Undertaken to command what they had no legal power to' enforce:
    Is it not more wise .and dignified for a court té decline giving a command, which they see no law has given them the necessary power to enforce; 'and. wait till they are invested with all the power necessary to-attain the end in view? - Must not every:.court decline a jurisdiction which the laws have not given them power to etfforce ?
    If it be said that .the President would be wrong ánd arbitrary in thus.resisting :the court; the plaintiff says; that would depend upon' as renaming where was the first wrong. If the coürt usurped power, ought not the President to use: his .constitutional power'to resist it? The late Chief Justice Marshall, in' thé case of Jonathan'Robbins, 5 Wheat; App. i6, says, that in such a'case, it is the duty, of the President Jo resist; so'says general Hamilton, in Pacifieus; and Judge Washington, as to. the district court,' in 2' Wheat.
    It may further be supposed,.that the postmaster general, on receiving, the peremptory mandamus, takes' another ■ course. ' The,-command is.to enter the credit to the .relators for the amount awarded. Suppose he enters it, iñ his own handwriting, as done by him,. not in, virtue of his office as postmaster general of the United States, but as done-by command of the circuit court, and s.o returns to the writ? .Would the court hold this a performance? '■ And-then; What effect would be. given to ihe entry in the post office? Would .they pay á credit appearing tobe allowed only on the authority .of'the. circuit court? And if the paying officer'refuses to pay, would'the court' enforce the payment?.
    Here, as to ..this matter of enforcing payment, whatever^ the compliance may. be with , the present pommand, the court say they are in doubt. Well , may they doubt a power to. take the public money out of the treasury, and make the United States suable in- this case of law or equity, . .But they doubt; and pught not the doubt, whét.her they could arrive at the end, stop their setting out? What.purpose is to -be answered by haying an entry made in a' book, if it may remain there as a dead-letter? If it is to be read and treated as an entry made by an authority which is disputed; and which cannot-be enforced? ■
    • The circuit court denied all this right of control in the President If he sees the iriferior executive officers acting honestly, he can look no further. . How, or whehthey execute a law, are things h.é has no concern with.. It is: impossible to- sustain ■ this position. The post office; as established by congress, is an executive department-of the government... The law of congress is conclusive' as "to this;' fdr- it gives him powers-wbieh could not be given- according-to the constitution, if he was not the head of an.executive department.
    As- the-headof a- department that officer is, therefore;subject to' the' power of the President; “ to call upon him for his opinion in writing, upon any matter appertaining to the duties of his office.” This implies, plainly, that he is, as to these duties of his office,: subject to the President’s control. ■ For why should he give any account of his opinions upon matters appertaining to.those duties, if he is independent of the President? And why should thé President have the power of requiring such opinions as to hjs duties, but to ascertain how he means to execute these duties; and to- enable him, if he finds he is about to execute a daw, or discharge any of his official duties improperly, to direct' and control, and, if necessary, remove him -frond office?'
    Arid this is ■ declaimed against as arbitrary power. It. seemed to him directly the contrary. The President appoints thesé officers, and can remove-them at pleasure. This all admit. He administers the affairs of government through them; and the presumption is, that they will execute the laws and the duties of their respective departments, in the manner he approves. Now, who does not see that if he can have his will thtis-done by his subordinates, and escape' all censure and responsibility for what is done wrong, by saying it was done by them, and that .they were independent of his control; his power would be far more arbitrary, and more dangerous, than if they were made subject to his control, and he responsible for their acts.
    Thé framers of our constitution were wise enough to see this, and they have left him no ground for such an excuse; and the people. have.always held him to-this, .responsibility; and the opponents of every ádministratiori have always charged the chief .'magistrate as openly and distinctly wi.th the .alleged wrongs of his subordinates, as-if their acts'were purely his; and ,.the supporters'of no administration have ever pretended to defend, the President from' any of the alleged .errors of his adrniriistration, on .the ground that, they were not his acts, but the acts of .independent subordinates. ’. And as long, as the government' shall‘last, this is the true constitutional -giound, and the only safe one.on which those who.administer it, must stand: •and was it not so, we should have the, English, maxim, that the king cari* do -rio wrong,1, made applicable to the President.
    If the act in question-affects the political pow.ers of- the President, as-giyén-by thévconstitution, the Opinion in the case so,'much relied on of Marbtiry v. Madison, is -coriclusivé ás to this, control; and against trie'power'.of congress to take it from the President and confer it elsewhere* One. of the; political -powers 6r duties of the President, as given by the-constitution,-is - to see that the.daws aré-faithfully executed'; .and. both' the■ late Chief Justice, in- the cáse of Tohathan Bobbins;, and Mr. Hamilton, in the passage referred to, hi-the.,letters óf Pacificus; say, that he. must ascertain.what the law >meansl, “ must judge of it fori himself.’’ The opinion in Mafbriry v. Madison shows [that, there may- be laws, in the' execution of Which the public is not directly interested,, where only- individual rights aré concerned. And such is the casé mentioned of an- individual’s right to.apopy of 'a paper, on paying for- it,-and the other'similar cases given in illustration of the'principle. There are cases in.which individual interests alope. are- concerned, and - therefore affect not the political poWers-of the President.-, But all laws which affe.ct the public* are political; and'the execution of those-laws, their fáithful executionj as he thinks they ought tobe executed,'the President must see. tQ. -And such are all the ’cases, given in that opinion, as illustrations'of executive acts; wherein the control belongs to the President.
    If it’be said, as it has been in the court below,'that this .is an act Which affects only individual interests; we'say the credit requited to be entered in the relators’ áccount, which account must be' stated as having-the.credit,'makes a1 sum o.f money due to .them which must be paid out of the treasury; and therefore the execution, of- this act affects the public interest.
    There, are many reasons why such a control ought to belong to.’the, •executive, and not to the courts. And 'first, the power ought to be left with the executive, because from the organization .of the government it has always exercised'it. It has* length of time, continued possession, and long, and uniform usage to plead for it. This command, if it issues from the Court, is the nrst instance of suchinterference. The samé lapse of time and continued usage that gives-tb.is claim to the executive, should bar the judiciary. It seems hardly possible to conceive how any court should-possess Such a jurisdiction ■for near forty years, and rieyef .be called on to exercise, it till-now.. Hpw has it happened' that all the claimants' in such cases, and all the lawyers 'and c.ourts of the United States.Should be ignorant of it? It cannot be said no such case has occurred, for every clai.m made upon the government, and disallowed by the - executive officers, .might have been brought before the courts, as is the present one. In the next place, the executive ought-to have this power, because it ’ is executive in its naturé. The executive is. fitted' to execute it, and armed with'means to execute' it. It can always execute-it, (as executive' power always ought to be executed,) promptly, uniformly, and in the time arid manner that the public interests may require; and as. its means may enable it. The contrary of all; this-Is. the case with the courts. They are unfitted to wield'this power, because they haVe not the information of the state of; the executive, department; its duties; the means within its control; and the varioris circumstances which may obstruct and delay executive action. And'they cannot get this information; for even if they had.a right-to call for it, they have not the time, unless they neglect their ordinary judicial business,-to acquire this knowledge of executive affairs. ■
    ■Then the -executive, when t has the necessary means, and it is.desirable to do*so, can act promptly. But the courts are trying ,<ra casé -in law or equity,” and ■ that is a business which is .never doné very promptly. Judicial robes are not the garments for quick action. Where the judgment or decree comes, it seems to be conceded there is ah appeal to this Court, at the application of eithér the claimant Or the officer; Is this appeal to suspend the- execution of the law, or the act of executive duty required ? If not, what is-the worth of the proceeding; and if it is, what .nay not be the .consequences of the delay?'
    Again, the executive acts uniformly throughout the Union; if that department directs the. action, all executive acts will’ be performed alike; all the laws'Will-be executed in the same- way.
    But if the courts assume the power, they 'toay (as they often do' differ with each other. A law may be'directed by the court in.oné^ state, to be'executed in one way;- and, by the court in another state, in another manner! . It is true their differences may be settled by appeal to the Supreme Court; but could á government be endured,all whose laws or whose executive action, at the claim of any individual who may conceive his interests affected, were-liable to be suspended till their judicial differences were investigated and decided ?
    . And further, if.the inferior executive officers are subjected to this double control, viz., that of the President and of the courts, bow are they to serve’ these two masters? And if their commands differ,’ which is to prevail ?
    The -case of Marbury v. Madison, shows there'can be no'such thing -as this double control. It distinctly states that the act of duty sought to be commanded by'the-mandamus in that case, was one in relation to which the President' had no control over the officer: and it as ’distinctly admits that where the officer is, in relation to the duty sought to'be enforced, at all subject to the control or direction of the President, there the Court, has no power to command him.. In Gibbons ,v. Ogden, 9 Wheat. 309, the Supreme .Court says: “It seems that a power, to regulate implies in its nature full-power over the thing to -be régúlated, and excludes necessarily-the action of all others that would perform the'same-operation'in the same'thing,’ Now, if the power to regulate -is thus necessarily exclusive of all other regulating power, a fortiori; a power to execute must be exclusive of all other executive power!
    Let it be supposed that the act of congress now in question, provided, in the very words'of 'the constitution, “ that the President should' see that’ this law was faithfully executed by the.postmaster general.” Would not this provision-have given the control to the President? And could the court, in that case, have interfered? And is not the provision in the constitution, as effectual as if would have been in tbe act?
    The power in question cannot be given to the courts, because, from the nature of the power, being the execution of a law which. ' concerns the nation, it is political .power; 5 Peters, 30 and 30; and .belongs to the executive departm'ent;-has always been- exercised by it, and never by the courts; is fit for the executive, and unfit for the courts; and being, therefore, executive power, belongs to- that department. The executive power is vested iii the President, and can-toot be vested elsewhere; Martin v. Hunter, 1, Wheat. 304,'316,'320;' 3'Story?s Coin. 451, 340, 41,4.
    Again,, it cannot be given to'the courts, because it is not judicial power.-
    What power can1- be given, according -to the constitution, ;to -the judiciary? Cértainly none but what is properly judicial poweyr Can the power of supervising executive officers] and directing them •how and when they are to perform executive acts, be judicial power ? There are -two remarkable instances of :the judiciary declining to exercise powers conferred upon them. One, arose-from the act of coingress authorizing the circuit. courts to report to the -secretary ,of the treasury, the- names of -persons entitled to be placed on the pehsion rolls. .The opinions,of the judges are-in 2 Pallas, 409. They thought, this was not properly of a judicial nature; and that, therefore, congress-could npt constitutionally confer ifipn the courts.
    There is certainly no comparison as tó the judicial 'naturé of the two powers, between the examination into a cláimant’s right to a pension under the laws of the-TJnited States, and reporting its determination to the- secretary of. the. treasury; and the power now in. question. If this is properly of a judicial nature, it will be difficult' to account for the, nicety of the judges in declining the power given by the act referred to. ' •
    The other ihstan'ee.is mentioned by judgé Story, in-a' note, in/ page 420, vól. 3,-on Const. Law; and .refers to 5 Marshall’s L'ife-pfWashington, 433, 4$1.. It -there appears that General Washington, as President, before he proceedéd to the execution of the "treaty, with France, of 1778, called upon the Supreme Court to expound- it, and’ direct hpw it should be executed; and they-declined doing so, on -the ground that.they could give no opinion but judicially, in. a. case regularly brought before them.
    Novy,'if the judiciary has this supervising power over executive acts, and can direct the officers how they are to discharge them on -the application of aqy person interested; it is strange, that when the executive calls upon the Court for its direction, it should be incompetent to give it. Can- any reason be given, why an' individual claiming- the benefit of executive action from an officer should receive the aid of the Court; and the .officer when he asks it, be refused ? -
    Nor are we left to conjecture what is judicial power. ■ The eonstitution defines it. It-says, “'the'judicial, power Shall extend to all .cases in law and equity arising under the constitution, the laws of the United States, and treaties,” &c. A great deal, no doubt, has-been accomplished in the way of deriving -powers-from the constitution, in the way of construction; but the'ingenuity: that shall acquire for the tourts, from .the power to try cases in law and equity, the power to send any public officer to jail, unless he will discharge his,-executive duties in the way the courts-shall prescribe to him,, will very far- exceed any thing that has yet been, attempted. ' It does riot seem likely that the framers of this instrmriént were aware that, there could be a case iri law or equity, that could be brought to so strange a conclusion; otherwise, some' pr.oyision.would probably háve been' inade. for supplying the place of the imprisoned officer. And, as the officer, in such a. case, whose disobedience, if.it was conscientious, would riot be guilty of ari unpardonable offence, and ought not to be imprisoned for life; .some limitation would, probably, have been attached to the period of his confinement.
    But the court thinks theie should be little scruple in assuming this authority, and no objection in submitting to it.' ] That, “ as it can only be 'used in cases' where a duty is to be performed, and where it is. still in the'-power of the officer to perform it, the - cases' cannot be very numerous.”
    With Submission to the court; Mr-Key said, he-could'not but think otherwise. ■ Let it be once' established, that whenever a public officer will not do what an1 individual, claiming under “a particular act of congress,” or, “the general principles-, of law,” (for to this extent, according to Marbury. y. Madison, the doctriné goes,) .may require -of him, this Court may take cognizance of the case; and-compel the officer to do the act; ’ and the cases for sü'ch -interference will be innumerable. .
    What are roost of the cases brought before the' legislature at every session of congress, but claims of'this description?' Claims arising for compensation for services rendered, or-losses sustained; arid claimed under some “ particular act of congress,” or ,“ the ■general principles ofylaw',’’ and which the officers of government have refused to allow. All the -claims spoken of' by judge Story, in his Commentaries, pages 538, 539,-540, 541, are'of this description;' arid are spoken of as being without this or' any other reiriedy: and have always, by all, been so considered.
    What is the present case but a claim arising under a particular act of' congress ? And- was it not the Sainé before this particular .act of congress of the last session was passed? Was it not originally a claim for-services under a contract'with the postmaster general, ■ynder thé post office laws, a'particular act of congress? ' When it was disallowed, might not the-idaimants have brought it here as well under-one act ás .another ? - as well under the post' office law, without, going.to congress, and getting the special act under which they now claim, if they had only known of this supervising jurisdiction of the court they now invoke. And if this is a case now for the exercise of this-jurisdiction by the circuit court, and was so when the claimants carried it, in their ignorance, to congress; what claim can there be, affecting individual rights, that arises under “an act of congress,” or under “the general principles of law” where the public -officers di'sallqw it, or refuse or delay to-act on-it, that is not also such'a'case'?- ■ . ’
    i The court speak in1 their opinion -of this remedy by mandamus ' against public officers, commanding them how and when they are to perform their executive'functions,ias the “mildest” and the. “-.be'st”' form of proceeding; and think,that “the officers will be.less harassedby it than'by the usual forms-of action” for injuries 'to individuals. , It would certainly be not .only the- mildest-,'and the best,- and the least Harassing'to the officers, but quite ágréeable provided they should think it their -duty not to do their duty; but to-let the court do .it. for -them,' and obey their commands: -but, if they, should'' think it their duty to act .and think for themselves) .and that the .court had nq right, to think and act for them, ’and :that' what the. court commanded .Was contrary to their duty, and- should do their duty,.and not the command of the court; then it .woúld not be so agreeable a remedy; unless they should- think retirement in a prison, during' the pleasure of 'the' court, more agreeable than the cares of office.
    He would beg leave tó ask the Court to compare what is thus said, with what was said here in the case of M^-lunj? v. Sillimaji, 6 Wheat. 605. This’Court thinks exactly otherwise of,this remedy; as being .(even if the laws allowed it) the worst and the most harassing, and in every way the-most improper. And whatever the officers might think of a remedy'that seems so pleasant to the court,' tb.e public might not find it agreeable to be paying' officers their salaries.for attending to their business,'while-they were enjoying this “,-otium cum dignitate” under the sentence of. a court. The circuit court, relies- on passages', extracted from Marbury v-.' Madison as a refutation -'of ¿the attorney general’s' opinion, denying .the power.of congress to give the power claimed in this .instance to the courts6;, and these dicta are.'ássqmed as settled decisions, and also as their'chief, if not sole-authority for assuming the powefr
    That there áre some expressjons-in that case, that,,seem to favour some of, the positions taken by the .circuit court; máy be admitted. That .they, sanction .their assumption of the -jurisdiction, we deny.'
    How far áre they, examinable? Are they authoritative decisions1? 'We respectfully say not. If not 'touching the point in'controversy, nor -necessary -for its decision, they may- be examined,. • And this Court has decided that there are such expressions in that case. Attorney General’s Opinion, 29; Cohens'-V. Virginia, 6 Wheat. 399, -400;- - What whs the .point to be decided? The constitutionálity of the law of. congress was the first .question; -and-the point of jurisdiction thus arising'and being settled-against the jurisdiction; all' else. is. dictum., and extrajudicial. Every thing-else then-is"examinable:..
    .In Cohens v. Virginia,.’6 Wheat'. 399, 400, it' is admitted that there are- didta in that case, ánd one of them very near to the point decided -is overruled.
    , -'Ió Wheelwright v. Columbia Ins. Co. 7 Wheat. 534, another is -rejected. Another at the'close of page ,167,1 C.ranch, is directly opr posed by the argumentan Jonathan Robbins’’ case, in, page 16 of App-to' 5 Wheat.; and not reconcilable with 9 Wheat. 819, and'6 Peters, 465; .and another (that which states the remedy by action as making a mandamus improper) is .directly repudiated by the circuit court in their opinion in this case.
    Marbury v. Madison, therefore,.'settles no other question than' tfiat which arose as to. the jurisdiction. And the whole course of the .'court; and its settled and repeatedly declared doctrine'is, that,any. opinions, given on the merits of a case where a-question, as to-jurisdiction-arises,, (unless where'the jurisdiction .is.'affirmed,) aré hot only dicta, but extra-judicial. The following cases will show the strongest expressions of the.court against entering upon any question, until that of jurisdiction-is" so decided as to make their consideration,'necessary to the determination, of the cause.- 2 Dali. 4-Í 4; 5 ’ Marshall’s 'Life of Washington, 443; United' 'States v. Moore, 3 Cranch, 172; Bradley v. Taylor,.5 Cranch, 221; Wilson v.-.Mason, 1 Cranch, 91; Osborn v.'The Bank of U. S; 9 Wheat.; Cherokee Nation v..Georgia, 5.Peters, 15, 21, 31', 51; Ex parte' Crane, 5 Peters, 200.
    If the case .of Marbury v. Mádisón had been regarded' by the circuit court as authoritative throughout, it. would have supported the attorney general’s ppinioil. The act sought to be enforced in Marbury v. Madison is plainly distinguished from the one .now. in. question..’ There, alt executive action had ceased, nothing official was to be done; and Mr. Madison was merely the holder of a paper to which the relator was entitled by his appointment, whether he received. the commission or not. He was appointed by the signing and sealing of the, commission. “No other solemnity (say the court) is required by láw; no -other act is to be performed or done on the part of the government. All that the executive can do to invest the person with his office is-done.” So that whether he got the comimis'sion or -not, he had the office without it.
    There was a case, then, in which, as the Court understood it, (and whether correctly or not is immaterial,) there was no executive act to be done. “ It respected a paper, which, according to . law is' upon record, and to a copy of which the law gives a right on the payment' of ten cents.” It is an act on which “individual rights depend.” This is the description of the nature of the act which the Court say may be thus enforced. Certainly, nothing like this can be said of the act now sought to be enforced here.
    But this is not all-. The Court contrasts with this act they have thus described as fit to be enforced by mandamus, other acts, in relation to which it admits there can be no such proceeding. What are they? They will be.found a perfect description of the act now sought to be enforced. The Court say, page 166, “By -the constitution of the United States, the President is invested with certain important political powers, &c.; to aid him in the performance of these duties he is authorized to appoint certain officers, who act' by his authority, and in conformity with his orders. In such cases, their acts are his acts,” &c. Here is a fair description of the act now sought to be enforced by the postmaster general. Among the important political powers vested in the President, one of the most important is to see that the laws be faithfully executed;' and consequently this law that the postmaster general is now to be made to execute. That officer has been appointed by the President, to aid him in his duty of having the’laws faithfully executed, by executing those that belong to his department. His acts are therefore the President’s acts. And this act, (unlike the' act -to be enforced in Marbury v. Madison,) is one which falls within .the political powers invested in the President. Again, it'is said of •'these. acts Which cannot be, enforced, that'“the subjects are political'. They respect the nation, not individual right's, and.'being intrusted' to the executive,, the decision of the executive' is-conclusive,” 166.- Noto the execution of a law of "congress, in which the public is-interested, is political; , it respects, the nation, pot individual rights sblely.
    Here is á strong mark Of distinction between the act in this case, ' and the act to be enforced in .Marbury ,v. Madison. ' Ip this .case,, an'entry of a credit is to be made in the books of -the nation against the nation. It,, of course, respects the nation. Ip that case the act, the delivering of the commission,, the officer being already appointed without it, and entitled.-to his office -without it, did not respect the natipn, but the .in lividual only. That this, is the meaning ..of the Court;. that, when they say “they respect the nation, pot individual rights,” they mean not. individual rights solely, is obvious from another passage in page 170.- The Court say, “ that it may be con- ■ ■sidered by. some as an attempt to intrude into the cabinet, and'to in- ' termeddle with the prerogatives' of the executive: It is scarcely •mecessary'for thé\ Court to disclaim, all pretensions to such .a jurisdiction! An extravagance so excessive and- absurd, could not have been entertained for .a moment. The .province of .the Court is, solely, tci decide on'the-rights of individuals; not to inquire how the executive., "or..executive officers perform duties’, in which th,ey haVe .a discretion,’'
    •’ It seemed to hirmimpossible to avoid seeing the likeness between, the -ácts described by the Court, as those in which it . could not interfere, and the act now sought to bé'enforcen in'this case; and the-unlikeness between the acts -described by thé Court as proper for the exercise'oi the power, and the-act now in question,'and sought to be enforced against the postmaster general. If the liability to impeachment is considered, it seems clear that in relation to'-any laws respecting the public, (though they may also, respect individual rights,) the Présidént-may be impeachedfor jmaiexecutipn.. Could the courts then assume the direction, of the execution of such a law, and the President be still s.o liable?
    Such cases would come1' here. And yet the Chief- Justice would preside.on the trial of the impeachment,'who would, have tried the , question as to how the law should b’e executed here..
    
      • -A. concluding remark as to tiffs case, may be made here ^though applicable to. thé remaining question as to whether congress bas given .the circuit court this jurisdiction.
    When was the jurisdiction; if.ever, given”? .It- is said„in 1801, b'é?ore: the, case ..of Marbúry. v.* Madison., ■ The .circuit: coürt hap .tfie jurisdiction then, if it'has it"now; .and this,Court 'was.jn'ot unacquainted with-its jurisdiction, nor were , the learned'and. experienced counSel .of Marbury. It is asked, why, when eVerj question of law necessary for his success was settled by this' Court, was not .the ’ application made there then? But, is it possible to believe that this Court would-then have.. discussed these questions, if it had believed, the case could, have been,'.taken before the circuit court, so as, in. effect; to have .tried for the circuit' court, questions of which it could’ not itself take cognizance?
    He thought he’ had now shown that the-power in question whs executive power, not judicial; and that, by "the Constitution, .it bplongs to the president, and could not.be given,by congress.the.courts.
    But if. he had not. succeeded- in this, he thought he might at least insist, that,'as' it was a power hitherto" exercised by ithe. executive department, and not. by the courts, and as he thought it must be adr mitted .'jto be more fit for the executive than the' judiciary, it ought not to be assumed by the courts, as given by'inference, by construing. general words in an act, as.having, in the court's-opinion, that meaning. A clear, distinct; positive law, admitting of no reasonable doubt as to. its meaning, ought to be the sole warrant for. the exercise of such authority. .He was sure there was no' such Warrant here, no such- clear, plain grant of the power to the court;' .and for this he. could appeal to the learned court below, and to the able and ingenious counsel’for the'relators;, one, or the other of whom; .undoubtedly had failed to see it. For this case hád.beén attended by this most remarkable circumstance:. That the court-were invited-- to assume this jurisdiction "by the relators’' counsel, as appears in théir. printed argument (now before him) upon grounds, all of which the court-considered to ,be insufficient;-for-they adopted none of them; and this could hardly have happened where the power was clearly given. And the court then assumed the jurisdiction upon a ground which did-not appear to the opposite counsel-as of any account; for their arghment contains not a hint.of it; and this, toó, could hardly have happened where the power was clearly given. So that he had' it in his power1,'to -say ' (what he never remembered to have had it in his power' to.say in any case before, and what seemed to him almost to supersede the necessity of saying any thing else,) that the grounds upon-which the jurisdiction-was claimed by the counsel, are insufficient, according to the opinion of the Court; and the ground- upon which it is assumed by the court, insüffipient, according to the opinion of the counsel.
    .Surely he might say, in süch a state of things, that this was. a, power not clearly given by-a law; and not.even clearly got by construction.
    ■ In the printed argument for the relators, he observed that the fifth section of the act éstablishing this court is nbt;once:réferred to, as giving the jurisdiction in .question; the-third section, is alone relied on; as referring to the act of 13th February, 1801; considered, though-repealed as to the other circuits,.as .being still in forcé here. The court, in its opinion, although this act of 13th February is recognised as unpepealed1 here, say not.a word signifying their taping the jurisdiction under any of its provisions; but rely exclusively'on the fifth -sectiowof the act (establishing the court. Yet,, he admitted ifcwas possible, (though certainly in the highest degree improbable,) that the true ground of the jurisdiction assumed, might have escaped all the researches of the counsel and. of the court, in the first instance; and only be discovered finally, when ail other grounds appeared unavailable. He- would only-say that if this should prove to be successful, the relators were most fortúnate litigants.
    They presentéd their claim to the remedy théy sought on .one ground, (the third, section of the a'cttof. 27th February, 1801, re'fer- ' ring to'.the act of the 13 th" February ,'4801.)' And'the court, haying (previously decided in United States y: Williams, that they could not assume-any jurisdiction on that' ground, assume it em another, (the' fifth section; and appear-to place théir decisión bn the difference between the terms .'case and' Suit.) ,-This was being very fortunate. Bilt. this was’not all. ■ The ground on which.the court-asshme it, viz: this difference, between case and' suit,-is found to be opposed ■By the Supreme Court, in 2 Peters,-464; and Judge Story, 3 Carp-507.
    And. then the relators’ counsel light upon another ground for sustaining the jurisdiction assumed, viz: the words “ concurrent with the courts of the several states,” which áre, found in the eleventh •section of the judiciary act; an'd are considered as'limitingthe jurisdiction of the othericircuit courts, the-absence of which words from, the fifth section of the áct of 27th February, 1,801, are held to, invest the. eircuit 'court of this district with the jurisdiction in question; ,
    . He should not think this ground required any particular examination-, .Was, it not that it appeared now .to be the only,one on Which .this jurisdiction coúld be expected to stand., y
    He .should proceed, .therefore, to examiné both the third and fifth sections, of the act of 27th February; 1801;- establishing 'the circuit court1 of- this district; under one of which it is' incumbent -for, thp relators to show the jurisdiction they have invoked to he given..
    It is settled by .the . cases of Wood v. M‘Irjtyre, 7 Cranch, 504, and M‘Cluny v. Sillinian, 6' Wheat. 598, and. 1 Paine, 453, that this -jurisdiction is not given to the other, circuit courts' by .the eleventh section ,of the judiciary act. ■. Thérefore, it must bé shown, that one .pr.thte other of those sections gives ¿ broader jurisdiction to the circuit court of this district, than is given by the judiciary act to the other' circuit courts.-
    First, as to the third section;. This gives to ■ the, court and the judge? thereof, here, the: same' powers then vested by law in the .other' circuit courts-and the judges thereof; and the argument is, that as the a&t.of 13th February, 1801,. (since repealed by the act of March ,8th, 1802,) was then in forcé, all the jurisdiction then vested by. the act of 13th February, 1801, was-vested in -this: Court: and that as the act of March 8th:, 1802, only repealed the act Of 13th February, and not the act of 27th February,, 1801; ail the jhrisdictioii thus given by-that act to this court, was unaffected' by thp repeal.
    It admits of several answers;
    First. . )This section should be expounded, according to ,the plain intent of congress, to give the court,and its judges here the same powers with the other circuit-courts not', at any particular time,-but. at all times.
    Second. The act of 8th March, .1802, not only repeals the act of T3.th February, 1801, but re-enacts the judiciary act of 1789; and that re-enactment repeals all laws inconsistent with the áct óf 1789, thus re-enacted; and consequently all such parts of. the apt of 27th February, 1801, as gave, by reference to the -act of 13th February, powers differing from those giVqn by the act of .1789.
    
      But if this act was. unaffected by the act of 8th March,. 1802, the cqnstruction attempted to 'be given to this section, could no.t be sustained. We are referred by it to the act of 13th February, 1801, .for the powers of the courts. Must-we not.look for that section in it which relates to the powers of the courts? We ‘find such;an one,. and it refers us again to the act of .1789, So that the powers then vested by the act .of 27th February, 180.1, in this court, are the powers given by the act of 1789; And that áet, it is conceded, has been, settled as giving neither power nor jurisdiction to issue a mandamus in such a case.
    When, then, eye are sent to the act of 13th February .for . the powers of-the court, and the.judges, can we pass by the section-that relates expressly to that subject, a-nd'go to the one that' relates, to the jurisdiction’of the courts." If there was no section to be found in the act of 13th February relating to powérs, there might be some -little excuse for saying that you might go to the section providing the jurisdiction; but'as theré is a- distinct section giving,powers, you can, by no rule of construction, go to any other.
    , .And it is a fallacy to say powers and jurisdiction'mean.the same •thing; for.if they might have such a-meaning elsewhere; they can,nbt 'here, in an act which contains á distinct section for -each. . In each of those acts; that of 1789, that of 13th February, and of the 27th February, there are distinct sections; one giving powers, and the other jurisdiction.. And if in this act, the-third section;, by giving powers gave also jurisdiction, as pretended, why should the fifth section give jurisdiction over again? Such a construction strikes the latter section out of the law.
    And they do not mean the same thing; jurisdiction refers to the cases and persons over whqm the court is to have cognizance; and powers, to the-.-means given to. exercise’its jurisdiction. -And. this distinct and, .precise meaning, is manifestly that in which the terms are -used in all these acts.'
    If such'a construction could be sustained, and.the circuit court in thjs 'district, by thus having the, powers’ given by the act of 13th February, could be considered as thus- hating the jurisdiction given by that act, and that jurisdiction Was - as extensive as is contended, how are-we to account for its never having been exercised; for-its being discovered only now,, that .this court has a jurisdiction denied tú all the-other courts?, Nq case has been brought here qf its exercise; though hundreds of cases dike foe present are now before c.ongress, which the .claimants haye never- imagined they could bring 'before this'or any other court. .And no instance of the exercise .of. any jurisdiction under this !ac,t Of > 13th February, can be shown in the circuit court. ' And on the contrary, the circuit court in December, term 1834, in the case of The United States v.-Christina Williams, when this third section was brought before them, after argument in a deliberate written opinion, as we show in judge Cranch’s notes of the case, disclaimed, expressly, all jurisdiction under it; saying: “ this court takes..its powers under the third sec-’ tiori, not its jurisdiction.”'
    The. court below, therefore, was right in rejecting this ground thus presented by the relators’' counsel, for taking the jurisdiction;.-' and in saying, as they do in th.eir first opinion ' after the first argument, “the court takes its'powers by the third section, but its; jurisdiction by the fifth.”
    2dly.' It remains now to be seen, whether the court has been more fortunate in selecting the fifth section as'their grqund, and their only ground for assuming the jurisdiction. ■
    ■ Here, .as it is admitted to be settled that- the eleventh section of the judiciary act dues not give this jurisdiction, it must -be shown by our adversaries* that there is a difference between that section; ari’d the fifth of the act of the 27th February, feo that the jurisdiction denied by-the one, is given by the other.
    Comparing these two' seetitoriS,. omitting all • immaterial terms, we find that -by the eleventh section of. the judiciary-act, the circuit courts of the United States are to take cognizance of all suits in law or in equity, •“ concurrent 'with the -courts .of the several states.” And* by'the. fifth section.of the act of 27th February, the circuit court of .this district i$ to take cognizance of all cases in law and eqüity; As it is now not questioned,- but that by 2 Peters,, 464, and 3 Story’S Com. 507, it .is settled, that there is no difference be-, tween the terms “case” and “suit;” the.pnly. remaining difference rests on the. words,.“ concurrent with the courts of the several states,”' contained" in'onfe’ statute, and omitted- in the other. And the jurisdiction is .now assumed by the court below, on the force, óf these words-alone.
    .This obliges the-court to maintain these two propositions:
    1. That , these words limit the jurisdiction of the circuit courts, to such suits',, or cases iii law or equity,-as the courts of the several, states then had gognizance of:-, and,
    
      2d, That-the courts of the several States 'had no jurisdiction ,pf cases in law.or equity, arisingymder the constitution, and laws-of the United. States;, of which fwo propositions, the only difficulty is to say which is the most untenable. , í rom' them,- however, they Com .elude'that the United States’ circuit-.courts have.no jurisdiction, in eases of law-and equity, arising under the constitution and laws of the' '.United States. • And. this,-they think, must have been the ground upon, which this Court, in the two-cases'referred to, have denied-the jurisdiction of the .circuit 'courts to issue a mandatnus to an executive officer. .He would undertake'tb-deny both the. premises, from .which fhis conclusion was drawn. ' That' this Court laid down no ;such-premises, and-drew no such conclusion; .was,obvious from the cases.referred to, .
    l. . Did congress mean? by these Words, to confine the jurisdiction of the United States’ circuit courts to such cases of law. and equity,as the courts of the several states then had cognizance of?
    What is tire language? They shall take cognizance of all cases in law or -equity, “ concurrent with the courts of the several states.” And this means, it is said, that they shall take cognizance, not of .all cases in law or equity, but of, such only as the courts, of the several states -then had cognizance;
    -. This- was surely a strange mode of expressing such a meaning. The'argument1 is,'that as'they -were to take a jurisdiction concurrent with the state, courts, congress meant they should only take what the state courts then had; and (hat the positive words, thatthey shall take cognizance,of “all.cases in law or equity,” are to be controlled by'the inference'-arising from :the. others. But, surely the, court should have construed the law so .as' to give more effect to the express words, than to the' inference; .and Say, they must take juris- ' diction'of “ all- cases in law or equity,” (a jurisdiction which, com' gress could give,) by force of those express-words; and the words “ concurrent With the courts of the .several states,” are to operate to show that congress meant not to give the jurisdiction exclusively (as they'could have done,) of the state courts. It is clear, that if Con-egress did. not mean this, but intended what the court below has supposed, it- would have.b.een easy to have said, instead of ■“ all cases,”. &c., “ such caséis,” &c., as. those state courts had cognizanfee of. The judiciary act shows in this, and, several other sections, that con- - gress did .intend to give some portions of jurisdiction to- the United States’courts,, exclusively of state courts, and other portibns concurrentty with .the state courts; and the constitution- has been always so, construed, as to admit the power and the propriety of dojng so by. congre'ss..' This' is the interpretation of that part of the constitution given by General Hamilton, in the eighty-second letter.of the Federalist; -and by this Court, so also.in Cohen v. Virginia, 396,397,4.19. Cited, Bank v. Devaux, -5 ,Cranch, 85; 3( Story’s Com'; 619,.620,' 621,, 62.2; and Houstoh y. Moore,'5 Wheat. 27, 28;; 3 Wheat.'221; 1 Kent, 539, 96, 97,.342^ 43, 319.'
    The language, therefore, used by congress does not admit of such a construction.;
    And if 'the act could be construed with this restriction of thd circuit courts to the jurisdiction of the -state courts; it may be-asked, does it mean all of them;- and if not, which? For we all know they greatly differed".
    This law, it is-known, was reported by a committee of congress, composed-of eminent professionalmqn, many of whom had Assisted, in" forming the constitution, and one of whom was from each státe; .They, therefore, well kp.ew-the great differehces-of jurisdiction with which the different states had invested their tribunals: -and ifthe intention was that the United States’ courts1 should have the same-juris-, diction that was given to the courts of the states where they weré respectively held; then it would follow, that the federal courts would not have the same jurisdiction every where, but would differ with each other as the státe courts»did.
    . Congress cannot be supposed to haVe meant- that:, and it is' settled that they did not so' mean that.théir jurisdictions every Where are, the same.; Livingston v; Story, 9 Peters, and the cases there cited; and Federalist, N,o.-82..
    - The Federalist;'No, 82, shows that all these-courts have in all : the -states the same legaband equitable .jurisdiction, without-any re-' ference to- the varying jurisdictions of the stale courts. The first proposition then; that the United States’ -courts 'took only ..the jurisdiction of the state courts, cannot be sustained.
    Nor is the court below sustained in their second proposition, that' ■the courts of the states have ho -jurisdiction of cases in law or .equity, arising under, the constitution and laws of the United States. ■
    ' /It would be most strange if it was So;. for the'constitution of -the United ..'States, art, 6, sep. 2, declares that “this constitution, and the laws of the United States, which shall be made in pursuance thereof; and all-.treaties, &c., shall be the supreme fa-w of the land; and the. judgesin every'state/shall'be bound thereby,'any thing in the constitution or laws of any state to the'contrary,'notwithstanding.”
    Now, if any state co.urt, having, by the laws of the state, jurisdiction over all cases of law and equity, should be applied to, to take jurisdiction in .a case of law or equity arising under the constitution of a jaw of'the United" States, which is binding on tnem as their supreme law; on what possible' ground could they decline the jurisdiction? Á case in láw or equity may undoubtedly arise under this constitu-. tipn, or a law of. congress, or a treaty made iri pursuance-of its authority, as well’ as under any other Jaw; and if -so, all courts having jurisdiction in cages of law and equity, must entertain the case.
    When a case is said-to arise under the constitution or a law of the United- States, is settled in’ Cohens- v.- Virginia, 6 Wheat. 378: -and what are-all the cases where the right-of appeal is given by the,judiciary, act to this Court from the - state .courts, but cases’arising under the constitution and laws of the United States ?
    'Not a word from.the Cpurt, nor froin.any writer upon the.constitution', or the jurisdiction of bur courts, has been mentioned-as giving any countenance to . this new .construction. They appear never to have entertained an. ídéa of, this limitation-upon the circuit courts. He would refer to -the' 15th chapter, of- Sergeant’s Constitutional Law, 2d edition, .123; 3 Wheat.-221.; 4 Wheat. 115: and.the act Of congress’of 26th of.-May, 1824, establishing the -courts of Florida, •which recognises the circuit courts' as- having by the judiciary, act jurisdiction-of cases arising under the constitution and' laws.of the United States. See, American Ins. Cp. v. Canter, 1 Peters, 511.
    , ^According to th'e two propositions- maintained hy the court below, it would follow that cases; in law and equity, arising- under the Jaws and constitution of the Unitéd States, could -not be tried any where: for the Court saythe stat& eotirts could'not try them, and the United States’ courts have only the same jurisdiction, that is, no jurisdiction-over such cases:
    Neither of these propositions, therefore, can.be sustained., And if • they could, Still it would be. necessary for the court below to show that this claim of the relators was a “ case in law or-equity.”
    What is a case in law or-equity?
    
      “ If B.” says the Court’s opinion,_ “ a resident qf this district is indebted to A. upon- a-promissory note, this Court has jurisdiction of the case.”
    He apprehended something more was necessary than-a note’s béirig’due betweeh sücb parties,.to . constitute a case at law or equity. This Uourt, in Osborn v. The Rahk of the United States, 9 Wheat. 8Í9, prescnne other requisites. >“ That j poWer, the judiciary, is only capable oí acting where the subject' is submitted to it by a party, who asserts'his rights in the fórm prescribed by law. It then becomes ‘a-case: and Judge Story, in his Commentaries, vol. 3d; page 507;' referring to this case, says: “ It is clear, that the judicial department is authorized to exercise jurisdiction, &c.3 whenever any question shall assume such a form that the..judicial- power is capable of acting on it. When it has assumed such a form.it then becomes ‘a cash;’ and then, and riot till then, the-judicial power attaches to it.' In other-words,.a case-is a suit- in law or equity, instituted according.' -to the regular course of judicial proceedings.” . So, 2. Peters, 449; 6.Feters, 405; -5 Wheat. App. 16'; 6 Binney, 5. So-,that-before A, can make a case in law or equity-out of the promissory note’.which B. owes him, he must submit it to the Court,-and assert his right;. “ in á form prescribed by law.” And if he Cannot find a law prescribing'a form by which he is to assert his-right, he Cannot have' a case in law or equity.
    ' No doubt A. can' find such -a.law, and therefore, he may have a case. But where do' the relators,find any law prescribing a form, by which they may require an executive officer to be.compelled to discharge a duty devolved'on -him by jaw? If it be said by a mándamus, under-the 14th sectiori.-of the judiciary la.w, as a'wrjt-necessary to enable the Court to exercise its jurisdiction; it is answered-by .M‘Cluny v. Silliman..
    Congress has not prescribed a form by which parties, who have .rights to have official acts, in' which they' are interested, performed by the public officers on whom “ the-laws have devolved such duties,” ma'yturn these rights into cases at- law or equity between them .and the officers, and submit them as controversies to the courts.
    Judge Story says, 3 Com. 541: “ Congress have nevér yet acted 'upon the • subject, so as to give judicial redress -for any non-fulfilment of contracts by the national government. Cases pf the most cruel hardship and intolerable delay, have already occurred,” &c.
    .Again. “He is- disposed to think that some mode ought to be provided, by which a pecuniary right against a state or against the United States might be ascertained, and established by the judicial sentence of some court; and when so ascertained and established, the payment might be enforced from the national treasury, by an absolute appropriation.”
    Can it be possible that the learned judge was mistaken in all these views? That these cases-of hardship and delay need not have occurred? ■ That adequate remedies in the courts, or at least in this circuit court are to be found, where they will be recognised as' cases in law or equity? That the inability1- tó ,sue the government, is to be obviated by enforcing execution without suit against the officer, and calling this process of execution a suit?
    The section, of the'judiciary- act which gave to this Court the authority to issue writs Of .mándamus, shows that congress did not consider claims calling for that remedy as cases in law or equity; and further shows, that congress meant to givé that sort of jurisdiction only.to this high tribunal,’ and not to the inferior’courts.
    ■ Much is said in the opinion qf the court below as to the distinction between the ministerial and discretionary' acts of the executive, officers. . He did not admit that this was a true test of the jurisdiction by mandamus. In Curtis.v,.The. Turnpike Co.; in 6 Cranch, 235, the,act to be done by the clerk was mérély ministerial; and this Court-thought that as there was nb. act giving the circuit court jurisdiction over the act, it had no power to control him, Why, if the' court could hot control its -own clerk in a ministerial act, could it control, in, a.similar act, the head of another departmént?•
    ■ But can the act sought to be enforced, be .’considered a merely ministerial act? If compared with the illustrations given in Mar-bury y„ Madison, it would seem not. Griffith v. Cochran, 5 Bin. 87, decides that .where an officer has to examine á contract, and be guided by.that'and a law in reference to it, (similar to which are the duties Of the officer here,) it cannot be held as a. mere ministerial act; and is not to be enforced by a mandamus. The same case, as also judge Winchester’s opinion, in the American Law Journal before referred to, shows that if the act is to be followed by taking' money out of the treasury, it cannot be enforced by mandamus. Judge Tilghman remarks, “we have no right to do that indirectly by mandamus, which we have no power to do directly; and, we might as well be calléd on to issue a mandamus to the state treasurer, .to pay every debt which is claimed by an individual from the state)” page 105.
    It has been said that injunctions have been allowed by the circuit court, addressed to the treasurv officers.
    
      This has only been done in cases where the funds enjoined (ás in ■the-claims.under, the French treaty) were not .the public.funds, but moneys held by the' officers, in trust for the claimants. ■ The circuit court has always put iti right to interfere exclusively on this ground; and the government, in the time of Mr. Galla.tin and ever since, has denied as to the public money, any,.power of the judiciary so .to interfere.. An opinion of' Mr. Wirt, when attorney general, expressly denies such power to the courts.
    And the court- below held, some years ago, the same opinion. In ■ the casé of Vasse v. Comegys,-MS-'3&4, they saifl,- “the fund is in the treasury of the United States.- Can this be said to be within the .jurisdiction of this court? The officers of the United States, holding public money as money of'the United States, aré not accountable té. any body but the United Státes; and, are not liable to a suit of an individual on aecbunt of having such, money in their hands.”
    It does not seem easy to reconcile this with 'the Jurisdiction now assumed,
    •• There remains another’ objection to the mandamus. There was, by action against the officer, another specific remedy. - 3 Burr, 1266; .1 Term Rep. 236; 2;Bin. 361; -2 Léigh, 168; 2, Cowen, 444; 1 Wend. 325, ’ '
    In Marburyv. Madison the principle of these cases is recognised; and it is said, if- ah action of detinue would lie, the mandamué “ wouffi be. improper,” And this is again sanctioned by what is said in the conclusion of this Court’s opinion, in M‘Cluny v. Silliman.
    ■ Yet .the court below have overruled all these cases; their own de-. cisión in .United States v. The Bánk of Alexandria; and say, that the officer’s being possibly unable to pay.the damages that might be recovered ip ,an action, prevents his liability to an action from being suth a remedy as should forbid the mandamus. As there can be no action that is not-subject to.such a .contingency; it follows, contrary to all these cases, that\a mandamus is allowable, although.the officer is also subject to an action. ,
    If what has been said, should make it even only dohbtful whether the court below has the jurisdiction, Judge Iredell ins2 Dali. 413, ¿nd Judge Baldwin in Ex parte Crane,- 5 Peters, 223,'would show, in Very strong language, the impropriety and danger of assuming a jurisdiction which has slept ever since it was given, til) the present occasion.
    
      Coxe, for the defendants in error:
    The facts and history of this case, as disclosed in'the record, are peculiar. The questions which it presents are of the highest. interest, as well as importance. It involves a large'amount of property which-the relators believe belongs to them, by as perfect a . right as that by which'any property can be held; and .which has .been unjustly and illegally withheld from- their possession. It .involves the examination of the proceedings of .a high functionary, under the blighting influence'of which'a vast amount of personal suffering has been endured; and which has already brought; to a premature grave, one of -the- parties oh the record. It. involves general ques-, tions as 'to the rights of the citizen, in his pecuniary transactions with the' government, between whom -and himself contract stipulations subsist. It-involves'a consideration of high and heretofore unknown powers, claimed as belonging .to public officers, in withholding their., action in cases where specific duties are imposed .on them by positive statute; and of immunities asserted in regard to them, when private rights are violated, and the injunctions of the law-disregarded. It involves a consideration ,of the extent of' legislative power; and of the means by which that authority may be enforced. It involves' the nature, character and extent of judicial power] under, our institutions; and indeed, whether the judiciary bé, or not,a co-ordinate and independent, department-of the government. It involves the true interpretation of some of the-' most- important clauses in the-constitution; the essential principles of all free governments,'and especially of our own peculiar institutions.
    Nor are these matters, thus forced upon'our consideration, limited either in their application to. the individuals who are parties on this record, to the particular territory under whose local .jurisdiction this case has .arisen, or to -the particular period .in our history Which is. now passing. They embrace every citizen of this vast republic; they are co-extensive with our geographical, limits; they will retain all their interest' and all their importance, so long as our fabric of government shall live,..and our constitution.continué in existence.,
    , A brief reyiew of the history of. this case is essential to a correct presentation of the proper subjects, to be discussed.. It' originated in an illegal act of .the present postmaster general; who undertook to reverse the acts, of his predecessor in office; to annul contracts which he had made; to withdraw credits he had given; to recharge moneys which he had paid. This proceeding has been declared by this Court to be illegal, and b.eyond his authority; U..States v. Fillebrown, 7 Peters,' 48.
    Congress, on the memorial of the relators, referred- the adjustment of their claims to the .solicitor of the .treasury, and .made' the award> of that functionary conclusive. He made his award: the -postmaster general assumed the right to reverse th.e decision;'and to set at defiance the act of congress, which imposed upon him' the. plain.duty of. executing it. The attorney general, called upon for his official opinion on'the question in which'the postmaster represented the.solicitor as having misconstrued the act of. congress, and thereby transcended his authority, concurred-with the solicitor. in .fiis interpretation of the law; and'his opjhipn is treated-with worse-than contempt. ' The judiciary-committee of the senate,1 -after’'full .consideration; and-the senate, by an unanimous vote;'ratify, and sanction- the action of the solicitor; yet this .insubordinate .inferior still hangs out the flag of defiance. - The judiciary .interpose; their mandate is disregarded, and language-highly menacing ih its character employed;, in the intelligible intimation, that their process may -be stricken dead, in the Hands »of the1-marshal, by dismissing "him from-hffice, for the simple reason that he has performed, or is about to ^perform, his positive .duty; 1
    Throughout) therefore; it appears, that this functionary has arrayed himself in an-.attitude of hostility against all the- authorities of the government, with -which he- has been brought in contact; ánd the official interference by the , district attorney and attorney general'in this proceeding, conveyed the first informatión that he was -sustained in any part .'of his course by any official influence. .
    ' Another-singular feature ip the case'is, that the allegations,-made by the relators are1-substantially admitted to be true. The validity .of-dhe original contracts under which the services were rendered, is not1 denied,; the extent and value of -those services, is not controverted;, the construction of the.act of congress, is not questioned; the obligation to pay the -money, is- not put in issue. The postmaster general concedes -all these points; but plants himself,on the single ground,, that however clear-may be our rights, however just may be the debt, however precise the injunctions of the act of congress, -the law cannot reach,him; that the claimants.still have no other remedy 1 than such as he may graciously please to extend,-or than may be found in the power of the executive to remove him from office. He insists,, that notwithstanding the act of congress for their relief, and the award maae by thq'solicitor,,the parties stand1 precisely as-they did before théy went to congress. Substantially, this -Court is asked, by the .plaintiff in -"error* to expunge the; act of éongress from the statute book; anddodreatthe proceedings of the’solicitor as a nullity. Independently of .them, we had the same remedies which it is contended we'now by we might then Have supplicated' the postmaster general to dd as justice; we might then have invoked the, power of the.executive'to see that the .few should.be faithfully executed; ■
    The ques ian is thus-brought within a'narrow scope. • Is there any power in the'judiciary of'our country ..to- reach such a case .of. acknowledged wrong; and to enforce ágaihst this party the performance of an unquestionable duty?
    In,discussing this.case, it will be attempted to maintain the following prepositions; which 'will be found to, comprehend every thing essential touring us-toa correct conclusion:
    .1; That upon, the general, principles of the law governing this particular form .of proceeding, and in the absence of ány objections, derived from - the' provisions of fhe constitution or.acts of congress, this is a proper ea,se for a mandamus.
    ■ '2. [That.the Constitution does authorize.congress't.o vest in the' .Courts .of the United States,, power to'commandjhe officer to whom the writ .was directed, to perform, the act which he Was required to perform;.
    '3,- That Congress'has, "in fact,'exercised this authority, ,by conferring. on the - circuit court óf this ■ district power . tó, aw'árd the. mandamus, in the present ease.
    Before proceeding,to discuss these propositions, it may hot be irrelevant do'remark, generally, that .the return of the postmaster general, in this case, is defective in- all the essential- requisites, of a good plea. .-.No one fact is averred in such a form as to admit-of,, being traversed* or to'sustain an action for'a false, return. .The return to á mandamus should be as precisé ,'in. its' averments as any' form of plea, or even an indictment. 10 Wen'd. 25.
    1. Is the remedy by mandamus the - appropriate remedy'in the' present case?
    - The relators have a clear, precise right, absolute and unconditional, secured "by an act of congress; and this right is withheld by an-officer-especially charged by-law with the .performance of. an act essential do' that, right; * Is there any other specific, ¿dequate, appropriate legal remedy? li none, then upon the principles which govern this form of proceeding, a mandamus will lie,
    .It has 'been argued-that such other remedy exists:. 1. By persona] pction against the delinquent officer. 2. By indictment, if he has violated the law. 3. By petition to the executive, whose business it is to see the laws faithfully executed; and who can exercise in case of recusancy, his constitutional function of .dismissing the party from office.
    ■ Neither of these furnishes such a remedy as the law regards.' Neither of them puts the party in possession of the right which is withheld. If a civil suit be instituted, it must be a' special action on the case, in which damages may be recovered to the extent of the injury actually sustained by withholding the'right; but after the recovery, the right to the specific tiling remains perfect, and unimpaired.' This right is-' not extinguished by suth recovery; and as long as it is withheld, the party may continue to institute ■ new suits, and recover fresh damages. In an indictment, the public wrong only is punished; the private injury is unnoticed. The fine goes into the public treasury; the.imprisonment of the delinquent leaves the private-right unaffected. !2 Binney, 275; 4 Barnw. & Aid. 360; 6 Bingh. 668; 10.Wend. 246.
    We are, however, told, that the peculiarly appropriate remedy.provided for the citizen’in such a case, is to petition the executive to commandvthe performance of the act; and if his'command is disobeyed, to remove4hé insubordinate officer from his office?
    Is'this in the language or’spirit of the law, a specific, adequate, and appropriate legal remedy ?. A petition, which is. addressed to the grace of the executive; which may be disregarded and .put in .the fire, at the pleasure of the functionary, to whom it is addressed; which, if granted, will not secure redress of the wrong, but at the utmost only punish the wrong-doer.
    This doctrine, that an American, citizen whose rights have ’been violated by a public functionary; whose property is withheld in opposition to the clear requisitions of a positive statute, has no remedy but by petition to the executive; is- á monstrous heresy, slavish in the extreme. It has no ground of support in,, the language of the constitution, or the spirit of our institutions. The annunciation of such a doctrine in England, was made, more than a century since, tfie basis of one of the articles of impeachment exhibited against-lord Somers: 14th article of impeachment, 14 Howell's State Trials.
    
      These are not, however, the grounds upon which the plaintiff in error himself rests. • He denies that the mandamus is the appropriate' ■remedy: 1. Because he.has a discretion under the law"; ánd where the officer has a discretion, no mandamus lies.. 2. Because the writ can only issue in cases'in which it is necessary; .not as a means of obtaining jurisdiction over a case, but as a'.means' of exercising a jurisdiction already, vested.
    In any’ sense in which the doctrine advanced in the first objection' can be made applicable to the case at.bar, the position assuméd is. unfounded. ' In the general language in which i.t is expressed, it is denied.
    It does not follow from the fact, that a discretion is vested in an officer; that therefore no mandamus, will lie. If a statute empower ■áñ officer or an individual to do a particular act,' but leaves it exclusively to his discretion whether to perform it or not, no. mandamus will lie to compel its performance.'" x‘, however, he is .directed to do an act, but he has a discretion to perform it in either of two ways, a .mandamus,will lie to compel him to exercise his discretion; and having .done that, to 'perform the duty in the mode which he had selected. If, for instance, tne act of congress for the relief of the relators, had directed .the postmaster general to pay them the full' amount awarded in gold or in.silver, at his discretion; a mandamus would lie to compel him to determine in which metal he would pay.: and having decided that to enforce the actual payment. 'Such is tlie. • doctrine'of'all-the^ (jases. 5 Wend. .122, 144; 10 Wend. 289; 13 Picker. 225; 3 Ball. 42; -l.Pajne, 453. In order' to' bring himself within the correct principle of the law upon this subject, the postmaster general must show that urider the act of congress he was autuorized to give' the credit claimed, or ■ to withhold it at his pleasure.. '
    ' • His- argument is, that because he must examine the provisions of the law, and the award of. the solicitor, and ■ conipare them together to see whether the latter is within the power delegated by the. former; he must exercise judgment, and consequently possesses a discretion. 1 Because some preliminary examination- may be necessary in order to ascertain'the .precise duty which is enjoined; does the-obligation to perform it; when ascertained, become less, imperative? If'in order to know, distinctly, what'is his duty, it-be necéssary to examine one statute or fifty, one section or many, the' simple statüté, or, in qonnexioh with that, an award made under'it; is wholly imma*terial, a sheriff has.the same discretion.in the service of all process; yet his act is purely ministerial,,and he may be enforced to exécute the writ placed in his'-hands. •
    2. A mandamus can be issued only as a means of exercising a jurisdiction already vested; not for the purpose of obtaining juris-diction. The argument-upon this1 point is so singularly deficient-,in. precision, that it is somewhat difficult to determine its exact scope.
    He says the circuit court has no original jurisdiction to adjudicate upon claims of contracts upon his department. ' From this proposi-. tion he -deduces the inference, that all the jurisdiction which can be exe.rciséd must be of an appellate character.' Then, from the-fact that the act of congress makes the award final and conclusive, with no -power of .revisal or reversal vested any where, he reaches the conclusion that the court possesses-no appellate-jurisdiction.
    The jurisdiction which has been exercised is not of that original kind which is thus denied to exist;, for no action has -been instituted against the department, for the purpose of adjusting the claims of the contractors: the existénce .and extent of those claims had been airead}' determined by the special tribunal to which the power was confided.
    No attempt has been made to subject that decision to the review of the circuit court, so as either to reverse or change it.- The appellate power, therefore, which he denies, has never been claimed by or for,the court.; such high power has been claimed and exercised by himself- alone. The circuit court assumes the conclusive character of the award: the object of this proceeding is to enforce, not to' annul; to execute, not to reverse.-
    The result then of this inquiry is, that the case is one in which the remedy by mandamus is the appropriate remedy, according to the general principles of law. governing that writ. 1 Cranch, 163,’ 167, 168,169; 5 Bac.,Abr. (new Lond. edition,) 261; 2 Brock. 11. Further illustration of this position will be found in the subsequent parts of the argument.
    3. Unless, then, some constitutional .objections fatal to .our claim can be presented, or some deficiency in the provisions of the-law'to meet the case exist, the circuit court has not erred in awarding the . mandamus. It is, -however, objected, that under the constitution no such power can. be vested in the judiciary.
    This objection, as presented in the return,, is, with characteristic modesty, put forth in the shapé of a'doubt. “ It is doubted whether under the1 constitution'of the United States, it confers on the judiciary department of the'government aúthority to control the executive department in the exercise' of its functions, of whatever character.”
    It appears to be assumed in the objection, as thus.presented, that the jurisdiction claimed on behalf of the judiciary, is a power of control over the executive department. ' Much of the argument employed in this case has been directed against the mere figments of the imagination of this high functionary.
    The mutual independence of the three great departments of the government is assumed throughout our entire argument. That each is to act in the performance of its appropriate’functions, uncontrolled by either pf the others; that each possesses all the powers necessary to the full and complete exercise of its own authority; if denied in any' part of this case, is denied only, by the postmaster general, and by his counsel. '
    The language of the constitution in describing the extent of the judicial power is large and comprehénsive. Art. 3. sec. 2. It comprehends all cases in law Or equity, arising underthe constitution and laws of the United States. No limitation is expressed, no exception-made in favour of any description of case; any character of party; or any occupant of office. No individual is in terms exempted from this jurisdiction, in consequence either of the office he may hold, or the character of his act. The judicial pow-er embraces all the cases enumerated in the 3d article of the constitution. 1 Bald.'-545. A case, affecting the postmaster general,, or the President, is still a case under the constitution. Cohens v. Virginia, 6 Wheat. 379.
    It must be obvious,-that the question immediately under discussion, involves rather an inquiry into the extent of legislative than, of judicial authority. It is not wfiat has congress designed to do; but, under the constitution, what may it do.'
    The postmaster general, and the department of which he is the head, are the creatures of legislative’power. Art. 1. s. 8. IT. 7, of the constitution, confers upon congress the power to establish post offices and' post roads. All the legislation of congress upon the subject is finder this clause. All offices of the United States, except in cases where the constitution otherwise provides, must be established by congress. 2,Brockenb. 101.
    If congress may, then, create the-office, prescribe,the duties of the officer; determine what he may do, and prohibit him from doing other things; may not the same power constitutionally declare to whom he shall be responsible, and confer authority where it pleases to enforce such responsibility ?.
    Such has been the uniform action of congress,'and its validity has never'yet been questioned.. Th,e act of September 22,1789,2.L. U. S.'53, s. 1, which erected the department, .provides that the-postmaster general shall be subject to the direction of the President in performing the duties of his-office.- The act of Feb. 2, 183t-'hewly organizing the department, and places the district attorneys, in delation to certain duties, under the control, of the postmaster general. By the act of February 20,1792, 2 L. U. S. '245, s. 4, the postmaster general is to render his accounts to the secretary of the treasury; and to-this extent is subject to the aüthority.of that functionary. By the 24th section of the. same act, he- is made responsible for c.ertain omissions, and certain moneys are recoverable from him.. By the very-terms of the law he is made amenable to the jurisdiction of courts.
    Are-these provisions, one and all, unconstitutional ? If.not, how can the constitutional power of the- same legislature-to invest its courts with' authority to direct the officer to act,..as well as to punish him'for not acting,, be denied? •
    The argument of the postmaster general, and of the attorney general, assumes that the post office department is an essential párt df the executive department of the government;, and from this position infers the- want of the jurisdiction claimed. The assumption has been shown to be inaccurate: but even if true, it is not easy to .perceive the connection between the premises and the conclusion.
    We are referred-to the debates in. the convention, to .show the ■anxiety of that body to preserve separate-and distinct the three .great departments. I will, in return, refer to the 47th and to the succeeding, numbers of the Federalist, for a correct exposition of this maxim of political philosophy, and its practical adoption in our constitution.
    -Starting from this basis, the constitution is appealed to; and by the aid of some interpolation and some extravagant interpretation, we are told substantially, if not in terms:
    1. That the clause in the constitution which provides that the executive power shall be vested in the President, actually confers upon him all that power which, in any age of the world -and under any form of government, has been vested in the chief executive functionary; whether king or czar, emperor or dictator.
    2. That the clause which imposes upon the executive the duty,of seeing that)the laws .are faithfully executed, contains another large grant of power,
    .3; That, as 'a'means to the performance -bf this duty, he is invested with the power of appointment to1 and-removal from office
    4. That the power of appointment and removal carries with, it the power to direct, instruct, and control every officer over whom it may bé fexercised,,as to the manner in which he shall perform the duties of his office.
    My- observations upon these, points shall be few, and brief.
    The first proposition was) perhaps, for the first time distinctly-advanced by General Hamiftdn, in his Letters of Pacificus, No.l, p. 535. A great arid revered authority, but subject to occasional error. It was fully answered by Mr. Madison in the Letters, of Helvidius, p. 594,. &c., and has since remained dormant. , The second is now for the first time broadly asserted. Its dangerous tendencies — its hostility to- every principle, of our institutions, cannot be exaggerated. The true signification of this part ■ pi the constitution, ! take to be simply this, that’-the President is authorized1 to employ those powers which.are expressly entrusted to him to .executé those laws which •he is .empowered to administer; or,, in the language, of the late Chief Justice, he is at liberty to employ any .means which the constitution - and. laws place under his.control. 2 Brockenb. 101.
    The third proposition is a palpable and unwarrantable interpola-: tioii of the constitution. The fourth, if the power claimed is derived from-the ’ power of appointment, would makfe the judges dependent upon executive dictation; if from that power and-that of removal, conjointly, would make it the true theory of theEnglish constitution, that the’king, might instruct, direct, and control the lord chancellor in. the performance of his judicial duties. It would make him t’ae keeper of the chancellor’s, conscience.
    The right to command, direct and control, involves the correlative duty, of obedience. No officer can be criminally or civilly punished for obédience tó the lawful command of a superior, which he is bound to obey. This dofctrine, then, asserts the entire irresponsibility of all officers, except to this one. superior.
    One of the practical inferences from these premises is, that the judiciary department cannot execute its ovtn judgments; a proposition distinctly-avowed, by the postmaster general in his return, p. 127— 8-^9, and asserted', in terms, equally distinct, by the attorney general, in p. 152.
    
      /The attorney general presses this argument still further, and, frqni the absolute inability of the courts to execute their judgment in the" case' of a peremptory mandamus, “without the consent of the executive department/’ considers the inference ás clear, that ho courthas the capacity “to issue such-a writ.” How obvious is the inference,; if this be correct,- that the courts can issue. no process, and exercise no jurisdiction of any description. If this process, to use the éx- ’ pression of the postmaster general, may be “struck dead” in the hands of the marshal, by dismissing him from office;, may not every' capias, and summons, and subpoena, and attachment? The law, however,, has provided, that in ease of removal from office the- marshal may, nevertheless, proceed to execute the process then in his. hands.
    While adverting in this argument, to questions rather of political than of legal science, it is somewhat surprising that these learned ■ gentlemen have overlooked one peculiarly important in the conside.ration of this subject. A maxim fully embodied in our institutions, recognised by every commentator on.1 the1 con titution, whether judicial or political. This Court has,, upon more than one occasion,.,. laid down the position, that the judicial power.of every well organized government ’ must be co-extensive with the legislative and executive authority. Cohens v. Virginia, 6 Wheat. 354, 382, 384; Osborn v. Bank of United States, 9 Wheat. 818.
    The true and sound ’ constitutional doctrine upon this subject is, that whenever the legislature may constitutionally create (an office, and prescribe its duties and its powers; they may make the incumbent responsible to the' judiciary’fpr the faithful performance of those duties.
    . When the legislature may rightfully command an act to be done by a.public .officer,- they may confer upon the judiciary the power, to enforce its performance, or to pur.ish its omission. In fact, the judicial power is never exercised except-for the purpose of giving effect to the will of the legislature. 9 Wheat. 866.
    f-f,-then, there.be any limitation to, or any exception from this general rule, or the comprehensive language of the constitution in conferring the judicial power, let it be shown in the - instrument itself.. Such is the doctrine of this Court in Cohens v. Virginia,,6 Wheat. 378; '.and in Rhode Island v. Massachusetts, at this term. • If there be any exception embracing this party, excluding him from the jurisdiction of the court, let it be shown. If he is entitled'to any exemption, let him exhibit his right
    
      . In examining the constitution for any such exemption, we are naturally led to that part1 of this'.instrúment which defines and 'prescribes the extent of the1 judicial power, and to that which .creates the executive department.- In neither can it- be discovered. On the contrary, the constitution, at least by powerful- implication, recognises the executive officers as subject personally to- the judicial power.
    So far. as the ground upon which this exemption is claimed has been presented, it seems to be derived from the official character of the party called upon to perform the duty enjoined, and from.the character of the ?act which he is required to execute. > This is not, however, to be found in any provision of the constitution, or in the ■ genius of our government.
    ■ That executive officers, as such,, are amenable to courts of justice for their official.acts, would almost seem too plain for. argument'. Such has ever been the law in England. In that country, exemption from legal process is confined exclusively to 'the monarch, and certain portions of the royal family. Yet anciently, when'writs were iri general mandatory to the party, the king.might be sued as a private- party, the form being Praecipe Henrico, Regi Angliae, 5 Bac; Abr. 571; G-wfl. Edit. Prerog. E. 7; 43 E. 3.2&.- To the extent to which it existéd.' in England at any time, it was a privilege, part of the royal prerogative, purely personal and incommunicable. Another branch of the same prerogative existed, under which the king granted writs of protection to such of his subjects as 'he might have occasion to employ in -the public service,- exempting them- from, arrest. Com. Dig.' Prerog. D. 78, 79, 80, 8Í., 82. ' This was. personal and temporary. With these exceptions, wholly inapplicable to the present times and to our institutions, no such principles as the postmaster general invokes, ever existed in England; and.since the. revolution in 1688, it is believed no writ' of protection has been issued.'
    . Frequently before, and uniformly since that great event,in English history, jurisdiction has'been exercised by the various courts of England over the highest dignitaries of- the realm-, in relation to their official acts, through the instrumentality of such writs as were adapted to the particular cases that occurred ■, without distinction. Offices are forfeitable for malfeasance, an for npnfeasance; and this forfeiture enforced by a criminal pros tion. In 2 Salk. 625, will be fo.und' a short note of lord Bellamopt’s case, who was prosecuted for an official act as governor of the thén province of New' York. In. Mostyn v. Fabrigas, Cowp; 161, 11 Harg. St. Tr. 162, Lord Mansfield' held, that an action might be.sustained by a'.nativé of Minorca; emphatically, as he says, against the governor of that island for an act of official misconduct. In this country, such cases, are numerous. Hoyt v. Gelston is familiar- to this Court. Livingston v. Jefferson, was a Case in which the defendant was sued for-an act done by him as President of the United States. 1 Brock. 203. The recent cases of Tracy v- Swartwout, 10 Peters, 80, and Elliott v. Swartwout, 10 Peters,/137, are also cases of this description.
    Such jurisdiction is in terms recognised by the' constitution ih the. clause relating to impeachment, and is distinctly admitted in-various acts of congress. It is not necessary here to. advert to more than one or two instances. The post-office act of 1792 has been already cited; but the act of Feb. 4,-1815, (4 L. U. S. 786,j in some' of its provisions, recognises the amenability of the public officers of the United States, whether civil or military, to the judicial tribunals, even of the states, for their Official acts.
    Toa certain extent, this responsibility, is conceded in the return on record, p. 151. This concession is a virtual surrender of the entire case; unless the postmaster general, while acknowledging his general responsibility, shall insist upon and sustain a special exemption from this particular process. He. admits that the court possesses the power to punish him if he does wrong,, but denies that they can compel him to do right. A capias will lie notwithstanding his high office: this power may be constitutionally vested ih the courts. A habeas corpus will lie, if a citizen is wrongfully imprisoned .by the highest dignitary; and an action be sustained for the illegal arrest. Damages may be recovered for an illegal act, or an injunction issue to' restrain it. This particular remedy by injunction is given by express statute,.in certain cases in which the United. States is a party. Act of May 15, 1830;. 3 Story, 1791: and its validity recognised by this Court-in United States V. Nourse, 6 Peters, 470; and impliedly in Cathcart v. Robinson, 5 ‘Peters, 264; in Armstrong v. United States, 1 Peters’ C. C. R. 46; 9 Wheat, 842, 843, 145; 1 Baldw. 214, 215.
    If all or either of these writs, may issue, why not a mandamus? So far as authority goes, we have' the legislative opinion on the question in the judiciary act of 1789, expressly conferring this’ power upon this Court; and-the force of this.authority is not weakened by the circumstance that the unconstitutionality of that provision was subsequently decided. .Marbury v. Madison, lCranch, 137-, contains the delibérate opinion of this Court- on.the very point; and although the authority of that decision has been questioned by Mr. Jefferson, in. his private correspondence; yet before a legal tribunál little weight can or- ought to be attached to his opinion.
    ,. The full authority,of that, case has been recognised by.all the distinguished commentators; by Dane, Story, and Kent; by this Court, in M‘Intire v. Wood, 7 Cranch, 504;.M£Cluny v. Silliman, 6 Wheat. 598; and' in Ex parte Crane, 5 Peters 190/ Jn no one judicial decision; in the elementary treatise-of nó jurist; is the authority qf that case upon this point impugned or questioned.!
    -. But the attorney general supposes that this-process' is applicable only to inferior magistrates; that it grows out of a general supervisory jurisdiction; and he finds no instance'in England of its being directed to any. officer of the executive department. ' The circuit court, in- its opinion, while partially falling into the same error of fact, yét ‘distinctly avoids the erroneous inference of the attorney general.
    This is, howéver,-a clear mistake;' and it is matter of great ánd just surprise, that' it should have been committed.' It would not, however, be-very material if no direct precedent could be produced.;' for to employ the language used in 10' Mod. 49, 54, if there be no precedent in which the-writ has been- issued in-such a ,case, it is because no such case has ever before been presented to a" judicial tribunal,, and no. precedent can be found ip which it has been denied. 'But the precedent and authorities in- favour of this, and analogous proceedings, are numerous, both in ancient -ánd modern days.
    ' Neville’s case, .'Plowd. 382, was/ in all its essential features a mahdamys to the, officers of the exchequer, commanding them to pay a certain sum of money oút of the royal treasure. Wroth’s case, Plowd. 458, was another ease, of the.same character. The validity, of such .writ is expressly reCpgnised in F. N. B., Hale’s edit. 121, F. Writs of mandamus anciently lay to the escheator, 5 Bac. Abr. 258; Dyer, 209,-248. The whole proceeding in enforcing payment of debts due by the sovereigmto the subject, is exhibited in the Banker’s casé, 14 .How. St. T.-'l; which is one of the .most remarkable' and interesting cases, as well judicially as politically, to be found in English history. In Vernon v. BlaGkerly, Barnard, 377, '399, it was' considered by.-the'chancellor as the proper remedy. In Rankin v. Huskisson', in 1830, 4 Simon, 13; and in Ellis v. Lord Grey, in 1833, 6 Simon, 214; the analogous process of.injunction was'awarded to the highest public functionaries in .Great Britain, commanding them to do'what .the plaintiff in error contends* bo -court cap do. And ih The,King vfThe Lords Commissioners' of the Treasury, in 1835, the whole court of king’s bench concurring, a mandamus wás awarded to those high - officers, commanding them, to do what this party is required to do.
    • Is the Amérícan citizen less' favoured by law than a British Subject? Are the officers of this government clothed with loftier powers, and do they, possess higher attributes thán those with which. the prime minister of the British' crown, and his immediate associates ¿re invested.
    Is there any thing in; the character of our institutions whiyh can ' create a difference? Such is not the doctrine in the -great state of New York; i"0 Wendall, 26, in the case of a mandamus to'the canal commissioners, charged with .the interest and management of the great works of internal improvement. In Pennsylvania, the samé law prevails, 2 Watts,. 517: in. Kentucky, Craig v. Register of the . Land Office, 1 Bibb. 310; Hardin V.-Register, &c.,l'Lit. Sel.'Ca., 28; Commonwealth v. Clark, 1 Bibb. 531; Divine v. Harvey,-7;Monroe, 443: In Ohio, Ex parte,-Fenner, 5 Ham.-542; *and,#6. Ohio Rep; 447;* and the only ease cited as contravening'our .ground,' 1 Cooke, 214, is a decisive authority to show that such also is the law. bFTennessee.
    But,Rafter the exténsive and recent precedents set by this Court, it possible further to question the constitutional power ’of- chngíeás over this subject? • What are the cáses óf U. States v. Arredondo; 6 Peters, 763; U. States v. Huertas, 9 Peters, 172, 73;' Mitchel v. U.‘ States, 9 Peters', 762; Soulard v. ÍJ. States, 10 Peters, 1Ó5; U. States v.-Seton, 10 Peters, 311;- Mackéy v: U. Stated,AOi.Peters,^342; Sibbald v. U States, 10 - Peters, ’313? Each and every of these cqées recognises the authority of. the judiciai’y, undér an -act of- .congress'^ to issue its mandate to a ministerial officer commanding ,the performance of a ministerial act.
    '3. The only- remaining qüéstioh for discussion is, hás congress,' in this particular instance,-authorized the issuing of this writ, and exercised its1 constitutional power?
    • To determine this question,-reference' must be Had to-the law organizing the circuit cpurt of this district. The act of 27th February, T801,'Davis’s-Laws, 123,' contains three sections bearing upon this, point óf inquiry. The first" section provides, that the1 laws'of the state of Maryland, as they now exist, shall be and continue in force, in that p,art of the said district which was ceded by that state to the United States, and by 'them’ accepted. The thp-d section provides; that there shall be a court; which shall, be called the circuit, court, &c. And the- said court, and the judges thereof, shall have all the powers by jaw vested-in the circuit courts, and the judges of the. circuit courts of the United. States.. The fifth section provides that said court shall have cognizance of all cases in,law Or equity between parties, both or either of which shall be. resident, of be found within said .district. The words of the clause conferring jurisdiction, will be found as comprehensive as those-employed in the constitution; and if I have been successful, in showing that congress may'confer such authority, the. fifth section shows that, it'has.-been, in fact, granted.
    There aré no-'words of exemption or limitation which can apply to the case at bar.
    The,attorney g’eneral argues,, 1- That the decisions of this.Court, ,in MTntire v. Wood,.7 Cranch, 504, and in-M£01uny v. Silliman, 6 Wheat. 598, show, that beyond the District of Columbia, the. courts of the United States can exercise, no such jurisdiction. ' 2.' That the circuit court erred jn supposing that the provisions of the act of 27th February, 1801, extend the 'powers of the circuit.court ip this district, beyond those of the other circuit courts..
    Aft'er quoting the'language of.'the-judicial act of 1789,.in relation to circuit courts in general, he', institutes a comparison between that and,the act Of, February, 1801-, and insists that there exists no substantial difference between them; and that, the inferences deduced from the language.of this Court, in M£Iptire v. Wood, are not only erroneous; but that they. have been repudiated in M£Clpny v* Silliman.' ‘ ‘
    1. The casé of. M£Intiré v. Wood, came before this' Court on -a certificate of a division of opinion from the circuit court of Ohioand it was decided that the circuit -court had no jurisdiction to issue a mandamus to the register of the land office. That decision rested upon the provisions of the eleventh section of the apt of 1789, which was held ,not to confer the jurisdiction.claimed; but the Court expressly say, that had that section covered the whole ground of the .constitution.; in other words, vested all the power which the constitution authorized, the result would have been different. Aware that the language of that section was thus restrained, and that of the 27th February, 1801, was unlimited, we regarded the case so triumphantly cited against;,us; as an authority ip our favour. . In 8 Wheat. 369, the samé casé under another, name, presented the question,-whether: a state court could' award the. mandamus desired. In 6 Wheat!-598,:it came'again . before this Court presenting, both questions. - On this occasion, the' caseof'MUitire v; Wood is rtoexarhined,.arid' itsdo.ctrines -reaffirmed;- and the very question.now at. bar, was adverted to in, the opinion of the Court, arid our View of it-sustained. This is again, corifirmed- by the-subsequent language of the’Court; where it'is observed: — ‘-e But when, in the case of Marhury v. Madison, and that of M‘Intire v. Wood,-this Court decided-against the exercise of. that power, the idea'never presented itself to any,one, that it w^s.not within the scope of the judicial powers of the Uhited States,'although noVvested by law iri the courts bf the general government.”
    ' -2.,There is,,in óur judgment, a,bfo,ad and essential difference between -the provisions of the two statutes. The attorney general brings the-two. enactments into juxtaposition, compares; their phrástjology, and treats the tVo laws after .the fashion of an algebraic equátion.
    The 11th section.of the judiciary aet:of 1789,.provides that “the cirfcuit courts shall have original cognizance, concurrent-with the courts,of the- several states* of'all spits.'of a civil nature at comrixon. law. or in equity,,” &c., The 5th. section of thq act of'97th February, 1801, étía vs’that “the ^aid-coürt- shalThávé, -cognizance of all cases in 'law and equity,”1 &é»
    It may bq‘remarked;
    1. The . subject matter of ’.the two laws is essentially- different. The'object of: the first law was to organize-and create courts purely federal’in their character, and therefore limited'both as to the subjects-and parties over which they, might take cognizance,; the object of fhe other was tó1.. provide a .tribunal to administer not only the laws-of the'United Spates, but the Marylánd law which was in terms retained, and Without distinction as to the parties.
    •9. The act of 1789 was designed to comprehend alt the courts of thé Union* the Supreme, the circuit, and:the district courts; The first waj to be organized;, hut the extent of its jurisdiction, as conferred-by the'constitution could, neither be enlarged nor diminished! ‘The other courts were to be organized, and between them was to be apportioned and distributed such portion of the" residue of the. judiT eial power of the sovereign* as it pleased to vest in them respectively.
    
      By the 14th section of this, act-, the power to-issue a mandamus in a case like the presentáis, in terms, given to the Supreme Court.- -In interpreting the language, it is immaterial that this, was afterwards,;in Marbury v. Madison, held to be unconstitutional. Ex.parte Crane, 5 Peters, 208. The express grant to the one court, excludes the idea of an implied grant to another tribunal to exercise the same author rity.
    ■ 3. Another, distinction is striking and important; ' The laws of Maryland are expressly continued in .force; all .the rights and remedies furnished and sanctioned by those laws'- are preserved; By those laws, a mandamus would lie to a public officer commanding the perr formance of a' ministerial.duty. This is, to a certain extent, conceded by the attorney general* page 148,- This concession is á virtual recognition of an essential difference between the two courts.
    .In making, this concession, however, be' denies its ,application to. officers of th.e United States, because no such .writ could be address.ed-to .them'-under the laws of Maryland. This exception annihilates the admission, because all officers within this. district, even the lowest officers of. a corporation, derive their'; authority from acts of congress. ,.
    The distinction attempted to be drawn' is fallacious.’ If the courts, of Maryland possessed the’jurisdiction Over an. officer of ..that commonwealth, the transfer of sovereignty would not vest-the same power in the courts of the district; If -the power over the. Mary-' .’land officers,terminated by,.the cession, an.d that over officers deriving their existence from congress did not arise'; the courts, of .the district do not succeed, to the-powers of the Maryland courts: noi do the citizens of the district preserve those rights^ apd retain the same remedies,to which'they were entitled before the cession.
    The effect of a cession of sovereignty is misapprehended. The same laws are preserved, the same rights continued, arid there exist the same remedies' for enforcing them.'. The,relations between-the subject .and the sovereign..are the same; the parties between w.ho.m these relations subsist are different.
    This.-adipits pf various illustrations; An' inhabitant of Florida, be-, ford the acquisition of that territory by the .United States, owed allegiance to the king of Spain; he would haye incurred the guilt and punishment of treason, had 'he borne arms under the 'United Státes against Spain. Since the cession he owes the same allegiance to his new sovereign, and would incur the same penalty were he to aid Spain against the United States. The lawisunchariged, but the parties are changed.
    •So take the history of the inandamus, as given by the- attorney .general in his opinion. The colonial courts did not succeed to the jurisdiction over the same officers as the king’s bench possessed, nor do the state courts. Our courts exercise a. jurisdiction analogous to that of the king’s bench, and issue a riiandamus in analogous cases, to persons holding analogous relations. This is our argument
    ■ 3. The 11th section of the judiciary act, confers upon the circuit courts.no other, jurisdiction than such as may be issued concurrently by, the state courts. . The design- and policy of this provision, and the true meaning of- this enactment may be found in 1 Kent, 395,-&c'.; 3 Story .on Const. 619, &c. As no jurisdiction was or could be conferred by congress on the state courts, the reference to them was merely to furnish a standard by which to measure that of the circuit courts held within their territory.
    • It is. then a fatal objection to the'jurisdiction bf a circuit court under the.'act of- 1789, that a state court could not -take cognizance of the case. That jurisdiction's still further limited, by being restricted, to particular persons. No such limitations are found in the act of 1801. Upon this Court is conferred general jurisdiction over all cases' in law and equityi Until a speciál act of corigress conferred the'jurisdiction, the postmaster general cbuld not sue in the other circuit courts; they had no .jurisdiction over cases arising under the patent laws or copyright laws, as such. But over all these cases the circuit court of this district always possessed and exercised, jurisdiction.
    Th.e circuit courts, under the act of 1789, could not eriter-tain jri ri.sdietion of cases merely on, account of their character or origin; they could not issue writs of mandamus or quo. warranto to operate ■upon officers or courts of .the Union, becausé over such cases, the state courts had no concurrent jurisdiction. . ■ The circuit, court of this district has from its origin .exercised this1'jurisdiction.
    ■ 4. It is said that, in the circuit court a difference-existed between the counsel and the court, as to the grounds upon which this jurisdictipn was claimed; To a certain extent there was soriie difference. Independently of the grounds that have been mentioned, I asserted it as derivable from the 3d section' of the act, which confers upon the. Court all the powers.vested by law in the: other circuit courts. The only Jaw then., in existence referring to them, was the act of 13th'February, 1801, which was afterwards repealed'.,
    -It was intimated by the court, that it derived its .powers from the 3d, and its'jurisdiction from the 5th sections.- Strictly speaking, powers are not jurisdiction; the .former are the means by which the latter is exercised. But in ordinary parlance, they are often employed indiscriminately; and.in all cases, the one implies the other; Wherever jurisdiction is conferred, power to exercise it is implied; wherever power is granted, it is for the purpose of exercising jurisdiction. The word power is that which is alone employed in the constitution; and in the acts of 1789 arid 1801, cognizance is used as an equipollent expression. .
    It is not very, important to which section we especially refer. If. this.be a case in laW or equity, arid either of the parties has been found here; it is a case over which the jurisdiction of the circuit court rightfully extends. If it be not “a case,” what is it that is the, subject. of discussion. It is the claim. of a legal right, pursued in court by an appropriate legal process. Should .any doubt exist as to the true construction of the act of 27th February, it should operate in favour of the jurisdiction; -for if this Court was right in Martin • v. Hunter, 1 Wheat. 329-30, in asserting that it was. an imperative duty in congrSss to vest in some tribunal or another all the judicial power of the-Union; no implication can be admitted to exclude any class of cases., where the words of the statute are sufficiently compre-, hensivé to embrace it.
    Mr. Butler, attorney general, in reply:
    It has been correctly said, by the learned counsel for the defendants' in error, that all the facts alleged in the petition are admitted in the-return. On the relators’ own showing, it was'believed that the mandamus could not legally be issued: the return, therefore, set up no traversable matter of fact; but merely stated objections, in point of law, to the relators’ application,. It was substantially a demurrer to the. petition. The authority and duty of .the court to issue the writ on the case stated by the relators, were,- therefore, the only questions in the. court below; they are the only questions here. •They are purely questions of law.; and they neither, require, nor authorize, any investigation of the merits of the orjginal controversy. And yet the learned counsel have felt themselves at liberty tp ‘indulge in reiterated and unsparing censures of the plaintiff in error»; not Only irrelevant to .the points to be decided, but founded on matters, in some cases not contained in the record, and in others, directly repugnant to it.
    For example: The official action of the plaintiff in error in suspending. the extra allowances made to the relators, by his predecessor, has been denounced as downright usurpation; illegal in itself,, and cruelly oppressive: with how much justice, let the very words of the relators tell us. In their first petition to congress, after stating the extra allowances made to them, they go on to say; “that their account being unsettled in the books of the department, when the present postmaster general came into office, he considered himself bound, in the adjustment of their accounts, to reject any credits for the allowances thus made to them, for this extra duty. In his construction of the post office laws, he also felt himself'without any legal authority to. adjust.the claims, and make any compensation for these, services; and- further, considering that there had been' no legal sanction for the allowances thus made to your memorialists, he felt bound, by his duty, to stop the regular contract pay of your memorialists, till the sums they had thus received from the department, (and which he considered as over payments,) were refuhded to the government. Those views, thus entertained by the postmaster general, of the post office laws, and of the powers and duties of that department, were, at the request of your memorialists, submitted to the decision of .the attorney general of the United States. They refer to his opinion, accompanying this metnorial, by which it appears, that he .concurs in his view of these legal questions with the postmaster general-: so that no other remedy is left to your memorialists, in a case, as they conceive, of very peculiar hardships; except that,which is intimated in a passage of the attorney general’s opinion, and expressed in reference to this and similar claims, in the conclusion of the postmaster, general’s report to your honourable body.” The remedy referred.to was an appeal to congress, to whose favourable consideration the case was recommended by,both those officers. The injustice of the complaints on this head is still further aggravated, by the fact, forming part of our public history, that the allowances in question, and others Of the like nature; had been the subject of investigation by congress; and however ancient the practice, or innocent the motives, in which they originated, had been conceded on all hands, to be wholly illegal.. This entirely distinguished the case from that of Filiebrown/7.'Peters, 46, cited by the other side: where it Was held by this-Coúrt, that the secretary of the navy had legal power to make the allowances then in'question. Under these circumstances, the-accounts of the relators being unsettled,‘and the allowances 'not actually-paid, the plaintiff in error might well think it his duty to confine the credits of the relators to‘ sufch items as. were authorized by law; and to -refer any claims-not so -authorized'to the decision of .congress/' On the case stated by him-to the attorney general, his coursq was sustained 'by that officer; and .the relators in their- application to congress, did not Attempt to question either the legality- o his conduct, or the uprightness of his motives. ’
    Equally groundless and repugnant to the record were the assertions, that the plaintiff in.error had set at.defiance-the. act of Congress,, and the authority of* the. solicitor:, had treated with contempt the opinion pf the attorney general, on- the construction of the law; or had ever given out the monstrohs pretension, that the relators “ have no other remedy than such as he may graciously .please to.extend, or that may be found in, the power of the executive "to remove him from office,” &c. &c.
    . It appears by- the, record, that the suspended allowances- amounted to one hundred and twenty-two thousand one- hundred' and one dollars and forty-six cents, being for services prior to April, 1835. - - The claim-for these allowances,.úntiVaftér the act of congress, constituted the whole subject of controversy. When the subject came,before, the solicitor, the relators claimed a large -additional suni, (forty thour sand six’hundred and twenty-five dollars,)-for similar "allowances after April, -1-835/and until- the end pf December, in that year, the period, when the contracts expired. • It certainly was not (strange ■that the. plbintiff in- error should doubt as to the intention of congress to give the relators .this-additional sum. When has if-before happened, that a .party whose claims have been rejected by a department, has. obtained from congress a, law, covering not only the sum ■in dispute, but.authorizing a claim" for a large additional amount? Congress, however, have the power to pass such, a law"; and if they-think that justice requires it they should undoubtedly do so.' '■•This,' the solicitor thought they had done, in the .present'ease. ■ On. this point, he requested the opinion of the attorney general.'' Thátoffieer concurred with'him. . He thought,: with the-solicitor; and, still-thihtó, that the words employed in’'the‘act gave the solicitor.-authority to' decide on claims on the'’contracts -described in the'law,' for services^after as well as before April, 1835. The'plaintiff m error, who had not been consulted as to this reference, complained of the manner in which it was made; 'and also questioned the solicitor’s right to call, for the opinion. , In this latter objection he proved to be correct; th.e' act of May .29th, T830, which authorizes the solicitor of the treasury to ask the opinion of the attorney general, referring exclusively to" “.suits, proceedings, and. prosecutions,” under the care of the solicitor, by virtue of his general official duty. This did not occur either to the solicitor, when he made the reference, or to the attorney general, when he answered it; but was afterwards admitted by both: and it certainly may well shield the plaintiff in error from one of'the charges made against him, that of contemning the opinion bf the law officer. And, besides, one of the main grounds on which he relied was, that in truth there was no contract in the case; and if he was right on this question of fact; then neither the opinion nor the law sustained the award.
    ' Sb far from setting congress at defiance, he expressly declares, in his letter .to the President, of the 27th' of December, 1836; “that inasmuch as congress is now in session, the most appropriate resort is to that body for an explanatory act, which, if it confirm the opinion of the solicitor, 1 will implicitly obey.”- Again, in his letter to the President, of the -31st of January, 1837, after saying that the balance cannot be paid without further legislation; he adds, that “ if congress thinks proper to require the payment, it will be his duty to make it.” The same willingness promptly to obey the direction of congress, if*.by an explanatory act or joint resolution, they should require the payment bf the balance, is reiterated in the return to the mandamus. It is true, that he has not deferred to the report of a' committee of the senate, nor even to a resolution of that respectable body, as-to a valid and mandatory law. Weaker, and perhaps wiser men, would probably have yielded to an authority so imposing; but, whatever may be thought of the prudence of his conduct, his firmness of purpose should command our respect; and with unprejudiced minds, will go far to evince the justice bf his intentions. In calmer times, it may also be seen that in insisting bn the concurrence of both branches of'the legislature, and especially of the house, of representatives, as necessary to give to a resolution touching the public treasure the force of law, he was really upholding a very important part of the constitution.
    Other instances might be mentioned .of the like, and even greater injustice done by the other side to the plaintiff in error.. All fair construction of his motives had been denied; he had been stigmatized ás the. relentless persecutor of unoffending an/i meritorious citizens; the death, (not appearing on the record,) of one of the relators, had even been imputed to him: and to all this had been added ■' the still graver charge, of a desire to break down the judiciary establishments; to destroy the safeguards provided by the constitution; and to subject the legislative will to the control of the executive. In the argument just concluded, all the powers of a very brilliant vituperative eloquence had been put in requisition, to bring down upon his. head the indignation and abhorrence, which, in a land of liberty and laws,- are justly felt towards a functionary truly chargeable with delinquencies so enorinous. That no part of this accusatory matter was really called for by the case, is obvious; that much of it wants even a shadow of support, has already been shown; that any of it would be pressed upon this court, was not . to have been expected. This hall had been regarded as holy ground; and the consoling reflection had been cherished, that within thes walls one spot had been preserved, where questions of constitutional law' could be'discussed, with calmness of mind, and liberality óf temper; where the acts of a public servant might be subjected to free and rigorous scrutiny, without any unnecessary assault upon his character; where, though his conduct-were proved to be erroneous, purity of motive might be conceded, till the contrary appeared; where it was usually deemed repugnant to good taste, to offer as argument, the outpourings of excited feeling, or the creations of an .inflamed imagination; and where vehement invective and passionate appeals, even though facts existed, which in some other forum might justify their use, were regarded as sounds unmeet for the judicial ear. That an example so different from thé .course .which might have been hoped for; an example so novel and unpropitious, should have been set on the present occasion; was not less a subject of regret to him, than he was sure it would be to all who reverenced the dignity of this Court, and who wished to. perpetuate its usefulness and honour; and he' confidently trusted that the learned counsel themselves, when the effervescence of professional zeal and exciting debate had passed away, would participate in this- feeling.
    In replying to those parts of the opposing argument which be- . longed to the questions presented by the record, the attorney general said he would pursue an order somewhat different from that adopted by the other side. He .would, first, look at the parties before the court; and, secondly, at the particular proceeding which had been instituted, its nature and subject matter, and the purpose desired to be accomplished by it. Under these two general heads, all the’material points insisted on for the defendants in error, would be brought under, review; and the conclusion, he trusted, would be, that the court below had no jurisdiction to award the writ.
    : 1. The court below had not jurisdiction of the parties.
    The idea of the court below,' and which has also been insisted on here, that the United States are to be regarded as the plaintiffs because the ancient form of the writ has been used, is palpably untenable. The real plaintiffs are the relators, who are residents of Maryland, and Pennsylvania. The defendant was proceeded against in his official ■ capacity, as postmaster general, for the purpose of compelling him to do an act exclusively official. Th'e .postmaster, general, as a public officer, is required to be a resident of the District of Columbia, and may be found within it; but he is not so resident or found, within the meaning of the fifth section of the act of the 27th of February, 1801. The words “ between parties, both or either of which shall be resident, or shall be found within the district;” must be understood to mean, not parties universally, but all parties capable of suing or being sued, who may be resident or found, &c. Foreign ministers, who are residents in the district; being incapable of being sued in the courts of the district; are clearly not within the words of the section. The postmaster general, or other head of a department, is equally incapable of being sued, in his official character; because there is.no act'of congress conferring such a capacity. Such an act is necessary to' eúable the postmaster general to sue in his official character. Osborn v. Bank United States, 9 Wheat. 825,855,856.— A fqrtiori, is it necessary to make him suable.
    Again: The United States are the real parties defendants; the object of the suit being to cancel balances in the treasury books, and to reach public moneys in the treasury. It cannot be said'here, as in Cohens v. The State of Virginia, 6 Wheat. 407, 408, that the object is to get rid of a judgment recovered by the United States. The original object of the proceeding was to charge the United States. It is. therefore, in effect, a suit against them. Such a suit, independently of the general objection, that the government is not suable, except when it chooses to waive its immunity in this respect; could not be brought in the Court below, for an additional reason. TBe fifth section' of1 the act of the 29th of- February, 1801, gives the court jurisdiction of all actions or suits, of a civil nature, “in which the United States shall be plaintiffs, or complainants.” This express,affirmative provision, necessarily excludes all cognizance of actions against the United "States; even if they were -otherwise capable of being Sued.
    It is .no afiswer to the objections under this head, that they were waived by the. appearance of the plaintiff in error, in the court below. That, appearance was for the sole purpose of objecting to thé jurisdiction; and as no plea in abatement, could be interposed, the want of jurisdiction .was assigned in the return;
    , 2., The court-below had not jurisdiction of the subject matter of the proceeding.
    The application was for a peremptory mandamus to the postmaster general, in his official capacity. This officer; it is now admitted, is the head of one of the great executive departments. The court 'below has no jurisdiction to award such a writ, to such an officer; This Court has 'decided' that the ordinary circuit courts have no such ' jurisdiction; not indeed in express words, but by decisions which embrace'that proposition, and much more. -MTntire v. Wood,. 7' Cranch, 504; and M‘Cluny v. Sill ¡man, -6 Wheat! 598, decide that the ordinary circuit courts cannot issue a mandamus, as original process, even to a mere ministerial officer; much less can they, do so-to an executive officer, the President, or the head of a department.
    The circuit court of the District of Columbia, though it possesses much jurisdiction which, the. other courts have not, stands, in this respect, on the same ground. . Th'e words of- the fifth section of the act of, February 27th, 1801, so far as regards this question, are sub- • stantially the same as those of the eleventh section of the judiciary act' qf September, 1789, except that the. latter includes the words “ concurrent with the courts of the several states;” which words are not in the act of 1801. ' These words, it is.'sáid, restrict the jurisdiction of the ordinary circuit courts to. those cases over which the state courts had jurisdiction, in September, 1789; and thereby exclude cases arising -under the constitution, laws, and treaties of the • United States. And as the restriction is hot contained-in the Disrtrict act of 1801, the argument is,, that the jurisdiction of the circuit court of this district"extends to' all such cases, provided' the- parties be resident or found within the district. Several of -the objections to this doctrine, made in the opening, have not been answered by the other side; and it is therefore the less 'needful to pursue it. The reason for inserting this clause in the act of 1789, was to prevent the doubt which might otherwise have arisen, as to the right’ of the state courts to decide, in 'suitable cases, questions grooving out- of the constitution, treaties, afid laws of the United States. It was not inserted 'either to give jurisdiction to the state courts, or to restrict the jurisdiction of the circuit courts; but simply to exclude a conclusion. Houston v. Moore, 5 Wheat. ’25 to 27. For that purpose, the clause was very proper in the act of 1789; but for any purpose, it would'have been absurd in the act of 1801, for there are no state courts in this district: and this, no doubt, was the sole cause of the omission.
    •In support of this view, it is further said; that the subject matte? of the two .laws is essentially different; the act of 1789 being designed to organize the courts of the United States, under, the constitution alone; and the act of 1801 to furnish such additional jurisdiction to the district courts, as was required by the local sovereignty exercised over the district. ’ This change of- circumstances undoubtedly demanded a much wider scopé of judicial power; but this was abundantly provided for, by adopting the laws.of the states; sec. 1; by extending the criminal jurisdiction of the circuit court tó all crimes and offences committed within the district; and by enlarging, the civil jurisdiction to all cases, in law and equity, between parties resident or found within the district; instead of confining, as is done in sec. 11, of the act of 1789, the criminal jurisdiction to offences against the laws of the United States, and the civil to certain suits between citizens of different states, and other special cases..
    The change of sovereignty did not require that the’courts of this, district should possess a power denied to all the other’ courts of the United States, to superintend and control United States’ officers appointed for the whole nation; nor can it be believed that congress could really have intended to confer such a power.- It is said, how■ever, that they have actually given it, by continuing in' force the laws of Maryland; because, by those laws, a‘mandamus would lie to a public officer, commanding the performance of a ministerial «duty, as well as in the cases-of corporations; &c. No doubt, by virtue of the adopted laws of Maryland and Virginia, and under its general jurisdiction, thé circuit court of the district-may rightfully issue the writ of mandamus, in all cases of the same -nature with those in which it could have been issued by the Maryland and Virginia courts, to any officer, tribunal, or corporation, within the district. In other words, for the purposes, of this question, the Maryland side of the district is ■ the state.of Maryland; and the circuit court of the distiict now holds the'supervisory, power of the Maryland court, over all local officers in respect to all matters arising in the district, which, from their nature and quality, would have been subject to'the supervision of the Maryland courts, had the cession not been made. But the mere act of adopting, the Maryland laws, and of enabling the district courts to administer them as they were administered by the Maryland courts; could not enable the former to apply those laws to officers of the United States appointed for the whole nation, in respect to official acts affécting the - interests of the whole nation. To authorize such a stretch of power, there must be an express grant of jurisdiction by act of congress. Until such a law shall be passed, fhe local courts, in this particular, will stand on precisely the same ground as the Maryland courts did before the cession. When congress sat in New York, or Philadelphia, and the officers of the federal government resided there, they were not subject to the supervision, by mandamus, of the courts of either of the states .within whose territory they resided. . Suppose, then, a cession of the city of New York, or of the city of Philadelphia, and an adoption of1 the.state. law; hów could that have altered the. case? As to all matters of local concern, like all other inhabitants, they wduld be subject to the adopted law: but in their official capacities, they would still have remained, as they were, before, exclusively subject to the authority of the general government, acting strictly'as such, Suppose this district had never ■ been ceded to the United States, but the seat of the federal government established here., and all the other circumstances of the present case to have occurred; could the Maryland court have interfered, by mandamus? Surely not. How then can that court, which has merely taken the place of- the Maryland court, claim, from that fact alone, any greater jurisdiction? The case of The Columbian Insurance Company v. Wheelwright, 7 Wheat. 534, so much relied on by the other side, does not touch the point. That was a private corporation, not. growing out of, nor at all connected with the federal government, as such. It had, indeed, been created by an act of congress; but in this, congress acted as a local legislature under the Cession; without which such a corporation could not have been created by the- federal government. If the cession had not been made, the Maryland legislature could have done precisely the same thing. But in creating the post office department, and the. other executive departments, and in defining the duties of the officers- employed in. them, as Well as in every other law concerning them, congress act entirely irrespective of the cession. Though the officers reside here, yet had no' cession been made, every one of these laws might have been passed. On the other hand, if the district were yet Subject to . the government of Maryland, that government coqld not have interfered- with the subjects, or with any of the officers concerned in them.
    It is very true, as -contended by the learned counsel, that the Maryland laws cannot be literally enforced here; that all the local officers of -the district derive-their existence from acts of congress; and that the Maryland law can only be applied to them by analogy: but there is.no difficulty in ascertaining the analogy, nor in applying it. Informations in the nature of a quo warranto may be .entertain-' ed, and writs of mandamus be issued, by virtue of the adopted law, in every case; except where the duties of the officer exclusively grow out of, and belong to the federal government. The -present case being peculiarly -one of this description, the .court below acquired no jurisdiction over it from the mere adoption of the- state law. If it has such jurisdiction, it must be derived in some other way.
    The third section of the act of February'27th, 1801, cannot help out the jurisdiction, even if that part of the act of February 13th, to which it is said to refer, be regarded as. yet in.forcé; because this section refers only to the powers, and not to .the jurisdiction of the court. The distinction between jurisdiction, or cognizance of a" court, and the powers or means by which it exercises and enforces its jurisdiction, 'is a sound and familiar one, and is distinctly marked in all the judiciary acts; and among others, in this very act of the 27th .of February, 1801, as the court below has itself decided ih former cases. . Again: there being no special reference to the act of February 1.3th, the provisions of that law were not so incorporated in the act of February 27th, as to require a special repeal in reference to this district; and when the act of February 13th was repealed, and the act of 1789 revived, and put in force in its stead, with what propriety can it be said that any part of the repealed law is yet in force? And how unreasonable to suppose, that congress could have intended to leave the repeal imperfect, and to create and keep up an anomalotus and unnecessary distinction between the courts in and out of this d idrict? The cases mentioned by the learned counsel, of English statutes’ spec .ally referred to and adopted by Maryland statutes; and in respect to which .the Maryland courts have correctly held that the subsequent repeal of the English' statute does not alter the law of Maryland; differ from the present case in several essential particulars. Not to speak of other differences, the' repeal was, not made by a légíslative act intended to apply, or capable of applying to the state of Maryland; whilst here, the act ,of. February 13th, if adopted in the. act of February 27th; was also repealed by the' sáme authority.
    The jurisdiction of the court below, so' far as regards the present cáse, depends then on the words'of the fifth section of the act of February 27th, I8.0Í. These words are, in substance, neither, more nor less than the corresponding words in section eleventh of the act of 1789; and even if the judicial construction of that section, in' MTntire v. Wood, and M^Cluny v. Silliman, be inapplicable to the present law; still it has not been shown that the claim of the relators is a “ease in law or equity.” If we give to the law the broad construction.on which the learned counsel insist; they cannot - establish. the jurisdiction of tbe court, unless they can-also prove that the case presented,in the'petition was a “case in law or equity;” in other-words, a controversy of a forensic; nature, which, according to the established principles and forms of judicial proceedings, was properly v referrible for- discussion' and decision to the judicial tribunals. The attorney general' referred to the argument of his associate on this point; which, he remarked, had not been answered, nor even attempted to be-answered; except by the allegation so often reiterated, but not proved, that the relators, had an absolute, fixed, and unconditional legal right to-the credits in question, the duty of entering which, was imposed on the-postmaster general, as %mere ministerial act. If this were indeed so, then a “ case in law or equity.” had been presented, and the. mandamus will be the proper remedy; if there be no Other appropriate'means of redress, and the court has received-authority to issue it. But the position is untenable.
    The relators claim under the special act of July 2d, 1836. They do not refer to, nor could they claim under any prior act. The attorney general agreed that the relators were deeply interested in the benefits proposed to be conferred by this law, and also that the good faith of. the nation was pledged to secure to them all those benefits; unless it should be found that by some fraud, or material error, congress were induced to grant what they would'' not otherwise have given. Bqtit is not every* interest, nor" even every-interest which is- guarantied by the faith of the nation, which is to be dignified by .the name of, a vested legal right. If the interest be.subject to, any contingency by which thex right to its enjoyment can be cut off, it is pot regarded, in law, as .a yested legal right. ' Now the rights conferred by the act of J-uly 2d, 1836, were subject to such a contingency. They were subject to the power of congress, at any time,' before the actual entering of the credit, to amend, alter, or repeal the law. After the credit should be entered; congress could not deprive the parties of it; because there is-no power, which after a fact has happened, can cause such fact not to have happened, v But-at arty time .prior to the actual entering of the credit, congress had the power to alter or repeal the law. This power was not reserved in terms in the law; nor was it necessary to be so reserved- ;It results from the mature of the case. There was np contract, made or tendered by the law... Thé*relators were to- do• no .meritorious, act under it., It was an, act of relief, of grace, and favour.to them. The proceedings before the solicitor were not like a.siiit in a regularly organized court; nor was his award liken judgment-.of such a court, so as to be out o'f the reach of the legislative power. It was the ordinary case.of a law extending a favour-.or bounty to á party; ;ánd' as •to all such laws,-congress have, á locus penitente, so long as the law is unexecuted. The judiciary committee of the senate had no' doubt as to the power .of. congress to repeal the law; though they thought it should' not he exercised.' This is decisive of the case. If congress had, and if they yet have, the power to modify, or repeal .'at pleasure, the act under which.'the relators claim; then it is not a.case for the courts o'f justice at all, or at least not a case, for a mandamus. All the authorities show,, and' the learned counsel themselves admit, that to entitle a .party to this .writ he'must show that he has an absolute legal right to some specific thing. But where the interest'of á party is liable to be thus affected by the action of the legislature, it is-an abuse of terms to call it a fixed or vested right. • It would,-indeed,' be a strange kind of absolute vested legal right, which is thus ■ liable to -be defeated. That .the legislature have hot interfered, is no answer to" this argument; it is enough that they have a lawful powier to dp so.
    Nor was the duty imposed, on the postmaster general by th.e law of 1836 a mere ministerial, duty, like that of the clerk of a-coupt, in recording a judgment, giving copies,-&c., to which it has been compared. It involved-an examination of the award, to see that the. solicitor had not exceeded his authority, either in giving tóo wide a scope to the enacting clause, or-in violating the provisos. ‘Nothing can be plainer than that if either were done, the' award, pro tanto, would be void; -precisely like that of any other arbitrator, whose award exceeds the submission. Suppose the solicitor had made allowances where there was no contract ? Or for other contracts than • those described in the law? Or had made allowances contrary to the provisos? Will anyone contend, that the postmaster general, Seeing these violations of the law on the face of the award, was yet. bound to give the credits thus illegally allowed? -If his duty was merely ministerial, if he possessed no authority to look into the award, as contended by the other side; then, however palpable thé errors of the solicitor, and however excessive the allowances made by him, the credit is to be given. It would seem to be impossible, that such- could have been the . design of congress. It was clearly the duty of the solicitor to confine his allowances within the authority conferred on him by the law; and if so, it was as clearly incumbent on some one, before the credit was given, and the money drawn out of the'treasury, to see that the allowances did-not extend beyond the law. Who was to do this? In the first instance, at least, the postmaster general; because on him was specially devolved the duty of executing the award. Ex necessitate, therefore, he must look into if, and compare it with the law. Even the other side were cotnpelled.to admit this: they concede, too, that spme .prelnhinary .examination was necessary, t.o enable him to ascertain the precise duty to be performed. This concession brings the case within the principle of the Commonwealth ex rel. Griffith v. Cochran, 5 Binney, 87, cited in the opening. According to that case1 and the whole current of authorities, where such a special trbunal is created by statute, without giving to the courts, in express terms, any power to supervise and control the action of the officer; all that they can do by mandamusj is, to compel the officer to take up the subject, and to act upon it; they cannot instruct him how to act. If the officer 'acts corruptly, he is liable-to a private action, at the' suit of the party injured; and to indictment, if he decides erroneously: the only remedy, in ordinary cases, is by a further appeal to the legislature; thpugh under the constitution of the United States, if the duty be devolved on an executive officer, his action may indirectly be reached and affected by the President,
    
      ' It is in this view of the case, that the constitutional question^ as to the power of congress, to clothe the judiciary with authority to diréct and control the executive,, is supposed to arise. The doctrines' of his associate and himself, on thi.s head, and more especially those stated by the postmaster general in- his return, had been denounced by the other side, as equally novel, unfounded, and' alarming. Strong, and, perhaps, incautious expressions, had been quoted from that return; and by separating them from their-context, and not attending to the .fact, that the writer set' out with the position that the'duty imposed on'him by the law,'was an'executive and hot a ministerial duty, .those, expressions were made to bear'a meaning which their author' could' never have designed. The like remark is to be made of the comments on the opinion of the attorney general, and on the opening argument.
    ’In regard tú this branch of the case, the attorney general said, that he could not consent to be held responsible for any language or reasoning except his.own; and that he must protest against the version which had been given to his official- opinion. That document, on some of the points - discussed' in it, might well be found to be erroneous; for it embraced questions by no meahs of pasy solution, ánd in respect to which the .most enlightened and upright might 'fairly differs , But a's to the constitutional views presented by it, -he could not apprehend any serious' diversity of opinion among persons-tolerably familiar with constitutional'law; provided the points intended to be. discussed, were first clearly understood, and then carefully kept .in view. .He had not denied, and did not intend fo deny; on the contrary he. fully admitted, the constitutional power of congress to invest the' proper courts of the United States with jurisdiction to. issue writs of mandamus to any ministerial officer Of the United Staté's, to compel the performance of his duty. And as the ordinary character of an officer’s functions would not always determine the true nature of a -particular duty -imposed by law, lie further agreed, that if an executive officer, the head' of-a-department, or even, the President himself, were-required, by law, to perform an act merely ministerial, and necessary to'the completion or enjoyment of the. rights of individuals, hé should be regarded, quoad hoc, not .as an executive, but as a merely ministerial officer;,and therefóré liable to ,be directed and compelled to the performance of the act, by mandamus, if congress saw fit to give the jurisdiction. In short, he had no controversy with the court below, nor with the learned counsel for the relators, .in respect to thfe power of congress to authorize the circuit court of this district, or any other tribunal, inferior to the Supreme Court, to award a mandamus to the postmaster, general, in precisely such a case.as that now under discussion; if it-be- really true as contended- by the court below, and' by the other side, that the law of July,-1.836, imposes on the postmaster'general the performance of a hierely ministériabact or .duty. The official opinion. of June 19th, 1837, begins with the. statement that tfie case was one in wh.ich an .official duty, relating to claims depending in -the post office'department, growing out of contracts made with that department, irpposed on its head by-his name of office; and in every sense an official, executive duty,-was sought to be enforced by man- -' damus. This statement, he thought, had not been successfully impeached; and if well founded, it naturally, led to the. constitutional; objection, by which it was merely affirmed that. congress cannot “ confer on any court of the. United States the power to supervise and control the action of an executive officer of the United States,. ■in any official matter, properly appertaining to the executive department in- which he is employed.” The remainder of the opinion is devoted to the establishment and illustration of this precise and, limited proposition. The, argument was chiefly rested on the distribution .of the powers of government between, three independent-departments; the vesting-of the executive power in the President, and, the duty imposed on him of taking care that .the laws be faithfully executed. How has this argument been met by the other side? By imputing to us the móst extravagant doctrines in regard' to the extent of the executive power; and'by maintaining, on their own part, .doctrines equally extravagant.
    When we say that the constitution gives-to the,President the' whole executive power, the learned counsel- represent us as .con-, tending that áll executive power, whether conferred. by the constitution or not; all executive power which, in any ..age of. the world, and under any form of government, has" been vested in the chief executive functionary, is vested in the President of the -United States: and they argue with great warmth "against this notion,-a notion too preposterous, to need refutation.- What we say is, that .all the executive power of the limited federal government created by our constitution: not the executive power of Great Britain, Russia, or Turkey1: is vested, with certain specified exceptions, in the President; And we' mean by this, precisely what is meant when it is said, that all the legislative power of this government is vested in congress, subject to the qualified veto of the President; .or when it is said, that all the judicial power conferred by. the constitution, is vested' in this Court and the other-courts of the United States; and no more.
    . The proposition, even as thus limited, is denounced by the othei side as slavish in the 'extreme, although they admit that it is not entirely new. It was first broáched, say the counsel, by Gen. Hamilton, in the Letters of Pacificus, -but was promptly refuted by Mr. ■ Madison, in Helvidius, 'and has- since remained dormant Never did gentlemen fall into a greater mistake. That all the executive power proposed-to exist in the new government was to be vested in the President; was objected1 by the opponents, and explicitly admitted by the advocates of the federal constitution, when that instrument was under discussion before the people. Gem Hamilton, in -the Federalist, acknowledged that this was the effect and design of the constitution, but vindicated the arrangement. See Federalist, 'Nos. 69,70 and 71. This doctrine was also announced and established by the congress of 1789, in the debates relative to the power of removal, referred to in the opening. It was the very pivot on which that famous discussion turned. The . subject had been considerably discussed before Mr. Madison engaged in the debate. From the moment he entered it, we perceive the presence of a superior intellect, possessing unequalled advantages of knowledge and expérience, and displaying itself in -the clearest analysis of the principles'and meaning of the-constitution. He was the first speaker who referred to that clause which declares that the “ executive power shall be vested in the President.” From that provision, and from the direction that the President '“ shall take care that the laws be faithfully executed,” he deduced the conclusion, that'it was “ evidently the intention of the cónstitution, that the first magistrate should be responsible for the executive. department.” 4 Elliot’s Debates, 148. He showed that this principle of unity and responsibility was necessary to preserve that equilibrium which the constitution intended; and to prevent a direction towards aristocracy on the one side or anarchy on the other, 4 Elliot, 176: and that to give effect to these principles, the' capacity to superintend and control the subordinate officers of the executive department, through the power of removal, had been left in the iPresident alone., 4 Elliot, 147 to 150, 176 to .183, and 201 to 203. In these views, a large majority of both houses concur red; the senate conceding the power agaipst itself: so that, if this doctrine as to the power of removal be really an Unwarrantable, interpolation, as the learned counsel say it,is, it, must be charged' on the fathers of,the repüblie. . "But, Whether the particular question, as to the power of removal was'correctly decided or not; no onfe, iri that debate, disputed the position of Mr.. Madison and his associates, that the constitution had actually vested in the President the whole executive power. ■ On the contrary, Messrs. Gerry and others, of the minority, expressly conceded it; though they contended, either that the executive power did not include the power of removal; or if it did include it, that in analogy to the power of appointment, it could only be exercised with the consent of the senate. This latter idea had indeed been suggested by Gen. -Hamilton, in the 77th No. of thfe Federalist; though, as has been: seen, he had previously laid it dbwn, in prior numbers of that work, and in the strongest terms, that the whole executive power was vested- in the President. - .The whole, course of this- debate, independently of the conclusion. to which it came, is, therefore, utterly irreconcilable with -the recent suggestion adopted,and maintained by our learned adversaries; thr', •when the constitution says, “ the executive power shall be ‘vested, in a President,” it only gives a name to the department,.and'merely means that he shall possess such executive power :as the legislature shall choose to confer upon him.
    The doctrine stated'in Pacificus, published in 1793, was, therefore, nothing new. It was merely repeating. what Gen. Hamilton had himself said before the‘adoption of the constitution,'and'what had been admitted on all sides,' in the debate of 1789. Nor was it denied by .Mr. Madison, in the letters of Helvidius; nor,, indeed, could he venture to dispute it after the part taken by him in former, 1 discussions.' He, several times admits it in terms, and constantly by implication; but contends, in opposition to Pacificüs, that the. power to issue a proclamation of neutrality was included- in the power of making war and peace, and therefore belonged to the legislature, and not to the executive. See pages 596 to 601, Appendix to Washington ed. of Federalist. This view of the constitution, so tar, also, from remaining dormant since i793, as alleged by the learned, counsel, has been announced in every text book on the constitution published since that time, and in every decision of this Court in Which •the point has been discussed, as was abundantly shown in the opening.
    
      We are able, also, to answer the call so loudly made, .for some decision of the state courts, in which it has been held, that similar words, in a'state constitution, vest in a governor the executive power. The precise point was.adjudged in the Commonwealth v. Bussier, 5 Serg. .& R. 451, on the Constitution of Pennsylvania.
    In regard to the President’s responsibility for the officers of the . executive department, and his power to supervise and control them, wé intend,.to assert only what was admitted in the Federalist, and maintained by Mr. Madison, and those who concurred with him in the debates of 178£); and nothing more than-has been! understood by ■ every President, from Washington inclusive, to belong to' the high trust with which, he is clothed. ’In the writings of Washington, recently published, his habit of directing all the heads of departments in the discharge of their .duties, constantly appears. Nor does the idea, suggested by the court below, and before advanced by - others, that the secretary of the treasury was not subject to this diréotibn to so great an extent as the. other-heads of departments, derive-any countenance from this correspondence. On the contrary, it will be seen, that on one occasion, Gen. Hamilton complained that President Washington did not.-take so large-a-share of the responsibility of some fiscal arrangements as the secretary thought he ought to bear. Sparks’-Writings of Washingtdn, Vol. 10, p. 396, 554.. When, therefore,-the learned counsel afth’m that the principle is now, for the •first time, broadly' asserted"; they speak, to say the least, with very little historic accuracy. ■ And when they represent us as pressing it .to the1 extent of claiming for the President a power to direct, instruct, and control every officer áppointed by him, judges as well as others, they show a' great want -of perspicuity on oür part, or of attention on, theirs..- Our position is' confined to the .executive department; we speak of that; alone; and we affirm, equally with the other .side, the absolute independence of the judiciary, when proceeding in its appropriate sphere.
    The practical inferences supposed by the other side to result-from -.< this -doctrine, .we .must also-repudiate. Where the President has cohtrolled and directed the’action of the inferior executive officer, they contend that the inferior is not responsible; and, as the President’s liability to private action has been doubted, there will then, it is. said, be no responsibility. The answer is, that whénever the ■President takes an- active part in an illegal action, to the injury of an individual, though it be done by the hand of, his subordinate, he will be responsible in a civil suit, along with that subordinate;: and that the latter cannot be excused for doing an unlawful act, by-pleading the command of his official superior. This is the rule of the common law, in the analogous case of master; and servant. 1 Bláck. Com. 43Ó. The subordinate officer is not- obliged to do any act which he believes to be unláwful; if the President insists on it, he may. resign, or refuse, and take the chance of a removal.
    Nor doi we claim for the President any power to. forbid or dis-. -pense with the execution of an áct of congress, even though it relate . to matters purely executive; nor haye we ,ever affirmed that a citb zen, interested in. the execution of such an act, is obliged to submit his claims to the arbitrary determination of that functionary. It was with great propriety that the learned .counsel, when bringing this charge against his associate and himself, had referred to the malicio,uS and unsupported accusation made by a tory house óf commons against one of the besj; patriots and soundest constitutional lawyers England ever produced, Lord Somers. What w.e say is, that where congress pass a law.for'the guidance and government of the executive, in matters properly, concerning the executive department, it belongs to the President to take care that this law be faithfully executed;, arid.wehppíy to such á casé .the remark of Gen.. Hamilton, in Pacificus, that'“ he Who is to execute the laws; must first judge 'for himself of ■their meaning.” Pacificus, letter 1st. If, therefore, the executive be ..clearly satisfied as'to the meaning of such akwyitishis bounden-■.duty to see that the subordinate officers of his department conform-with fidelity to that meaning; for no other execution,.however pure the motive from which it springs, is á faithful execution of- the law. In a case of this kind, one which thus concerns thé proper executive business; óf tfié. nation, we do indeed deny the power of the judiciary •to interfere in advance, and .to .instruct the executive officer how. tp act for the benefit of an individuaf who may have an interest in the subject; but we hold that every officer, from the lowest to the highest, who, in executing such a law, 'violates the" legal rights of any individual, is liable to private action,; and, if his act proceed- fróm corrupt motives, to impeachment, and. in some cases, to indictment also. And we-.also agree, as has already been admitted, that when ah act of congress imposes on an officer of the executive department, for the benefit of a private party, a duty purely ministerial, the per formalice of that duty may be coerced by mandamus, by any court to which the necessary jurisdictibn shall have been given.
    
      Another of the practical inferences imputed to his associate and himself, related to the capacity .of the judiciary department to execute its'judgments. A strong and somewhat unguarded expression in the return of the plaintiff in error, had beén made the theme of much- animadversion y the comments which it was supposed to justify, were extended to the official opinion of the attorney general; and this latter document, it was said, pressed the argument to an extent, which would’deprive the courts of the power to issue any process, or exercise any jurisdiction whatsoever. As suggested in a former part of -the argument, the language of the postmaster general had received an interpretation which -was doubtless repugnant to the meaning of its author: but however this might be, the attorney general, speaking for himself, could truly say, that the sentiments'imputed to him were néver designed to be expressed; and on a fair construction of his language, he did not think they could be found in his official opinion. Having adopted the impression, whether correctly or not it was not for him to say, that the duty .assigned to the postmaster general by the special act of July, 1838, was not a mere ministerial duty; but a duty which appertained to the regular-official business of the department, as a branch of the executive; the opinion proceeded to show that the writ of mandamus could not be issued to the head of- an executive' department, to instruct and direct him in the performance of an official executive duty. Among other arguments, the inability of the judiciary to enforce any commands they might address to the executive officers, was insisted on, and. illustrated by the supposed case'of the officer refusing to obey the-mandamus; and on his being committed to ■prison for the contempt, the President’s- removing him from office, and so defeating,' ád infinitum, if he pleased, the execution of. the writ; thus showing, that without the' consent of the executive, a peremptory mandamus to an executive officer must forever remain inoperative. If this argument be confined, as was intended, to the case of a mandamus commanding the performance of an act strictly executive; .no one, it is-believed, can prove it to be unsound. To mark still more clearly the class of cases referred tó, and ■ to show that the independence and completeness of the judicial power, were, not intended to be impugned; it was carefully observed, that “in cases which properly refer themselves to the judiciary, it is rarely or never possible to defeat, in this way, the ultimate execution of the judgment of the court:” a passage, by the way, which the learned counsel in their animated comments' on this part of the opinion, had strangely overlooked. He,.therefore, entirely agreed with his learned adversaries, that in all.case's to which the judicial power extended, neither the executive nor the: legislature could, rightfully, interfere' with the judgments of the eourts, much less “strike dead their process, in the hands of the marshal.” It was, perhaps, to prevent, any abuse of the power' of removal by the executive, as well as to avoid inconvenience and delay,, that the provision referred to by the other side, and by the court .below, authorizing the marshal, though removed,, to execute any process in his hands; was inserted in the act of 1789. This provision, however, does not apply to a mandamus: which is directed, not to the marshal, but to the officer who is to do the act required; and if that officer be the head of an executive department, there is, and there can be, no law tt> prevent the President from removing him at pleasure.
    With this notice of some of the strictures on his official opinion, he was content to leave the general exposition of his views, on this branch-of the case, to that paper: and would proceed to consider the doctrine, so strenuously pressed, that under the constitution of the United States, it is competent for congress, if they think proper, to empower the judiciary to supervise, direct and control, any officer of the executive department, in respect to any matter whatsoever. The learned- counsel were driven to this extremity in order to sustain the judgment of the court below, in the event of its being held, that the duty assigned to the postmaster general was not a ministerial but an executive one. The constitution, say the learned counsel, does not expressly except any officer of the United States, or any act of any such officer, from the general grant of judicial power; and, therefore, the legislature may extend that power to every such officer and act: and, indeed, should do so, in Order that the judicial power may be coextensive with the operation of the other departments. The post office department, they further say, and all the officers employed in it, including itsc head; derive their existence from acts of congress passed in pursuance of the constitution: and the power which' creates these .officers may. subject them to the supervision of the judiciary, and may empower the judiciary to direct and control them,. ■ The like power to authorize the judiciary to direct and .-control, in advance;'the action of the executive officers, w.as endeavoured to be inferred; from'the admitted fact, that these officers were liable,, as individuals, to private action and to indictment; and thát. this liability had often been declared and enforced by act of congress. This doctrine may, indeed,- be pronoüriéed not only novel, but utterly repugnant-to the theory of the constitution.! and tó the-best considered and .most authoritative expositions of its .meaning. In the note td Uayburn’s case, 2 Dali. 409, the reasons of the judges, of the circuit courts, including all the judges of this Court, for - not executing the pension act of the 23d of March, 1792, are given at length. The New York, circuit court; consisting „of chief justice Jay, Cushing Justice, and Duane, District judge, were “unanimously of opinion, and agreed, that by the constitution of .the United States, the government thereof is divided into thré'e distinct and independent branches’; and that it is the duty. of each.to-abstain from, and to oppose encroachments on either. That neither the legislative -ndr the executive branches can constitutionally assign to the judicial any duties, but such as are properly judicial, ánd to be performed in a judicial manner.” The judges in thé other circuits expressed .the same proposition/ though jn somewhat different words; and they all concurred'in treating the-.law as -unconstitutional, and in declining the fuñetions assigned them, because they were not of a judicial nature. ' The axiom thus laid down" by this high Authority, an axiom plainly resulting from1 the distribution of. powers máde by the- con<stitütion/ overthrows, from- the foundation, all this part of the opposing argument. The attorney general said, that he had always regarded ¡the opinions of the'judges in the pension case, as entitled to ■ the very highest respect. They were founded on the maturést deliberation; and were uttered' very soqn after the organization of the government, and before political parties had .been formed with reference to any p'articulár construction of . the constitution. When his own views as to. the independence of the different departments were denounced by his learned adversaries as revolutionary arid disorganizing; he was consoled by the reflection, that the like charge had-been insinuated,-'and even by the incumbent of the office he, had the honour to fill, against the opinions- above, quoted. See letter of attorney general Randolph to President Washington, of August-5th, 1792,10 Sparks’ Writings-of Washington, 513. The fame of Chief Justice. Jay and his associates, had not been injured by these strictures; and those who irierely- repeat their language-are equally secure against any permanent injustice.
    As to the numerous cases cited from th.e English book* and from our own reports, in which actions for damages had been brought against public officers of all descriptions, for acts done by them in their official capacities; it was sufficient to say, that the liability of every officer of this government- to private action and tó public prosecution, in appropriate cases, had been repeatedly conceded. But none of .these cases touch the point-now in dispute; for no one of them involves, any attempt, on the part of the court,-to direct, the officer in the performance' of his-duty. This,'it is said, has been done in the injunction cases cited.from 4 Simons, 13; 6 Peters,-470; and.6 Simons, 214; and other cases of the like nature.- It will be seen, however, that in thé first of these cases, 4 Simons, 13, the injunction, was ^issued to restrain the commissioners of woods and forests, from, erecting a building in violation of an agreement entered into by them with the plaintiffs, to whom they had leased an adjoining tract; and that in all the others the real controversy was between individuals, litigating in relation to moneys held by -the treasury officers-as trustees or'stockholders; moneys received under treaties, &c., and not belonging- to .the government, but to one or other ..of the litigating parties.. Injunctions to-the treasury officers are -issued by the courts of equity, in these latter cases, on the same principle-on which they are issued, in analogous cases, to banks .and other depositaries; that.is to preserve the funds in controversy until the party really .entitled can be ascertained. When' such injunctions are served on the secretary of the treasury, they are usually observed; but it has not been supposed that they were obligatory.
    When this case was before the court below, it was urged as a strong reason against the application that no instance-co.uld be found in the. English books in which a mandamus.u Had been issued to any officer of the executive departments.” The learned counsel could not then produce any such case, and the court conceded that they had not found any. The King v. The Lords Commissioners of the Treasury, 5 Neville and Manning, 58.0, a case, not. in the country where .this controversy began, is now referred to as one of this description'. It. was there admitted, on all sides, that-a mandamus had never been issued to- such officers; and, though the writ was awarded, all the judges put it expressly on the ground that the money in question' had been appropriated by parliament for the use of the relator,-and had been drawn out of the treasury and placed in the hands of á paymaster, appointed by the defendants, and subject to their order; and that they were to be so considered as mere trustees or stockholders, of moneys belonging, no. ,to the public, but to the relator. Neville’s case, Plowden, 377; the Banker’s case, 14 Howell’s State Trials, and the other cases of .petitions to the barons of . the exchequer, depend on the political organization and functions of the English exchequer; and the writs issued in those cases to the treasury officers, are not to be confounded with the prerogative writ of mandamus,-which cah only emanate from the king’s bench.. In the'New York- case, 10 Wendell, 25', the mandamus was directed to the canal commissioners; officers charged, it is true, with the care of a very important public Work, but not a part of the -state executive. In principle, their functions were precisely like'those of surveyors, and commissioners of highways and sewers; ministerial officers, to whom writ's of toan-:, damus have often been directed in England.
    Several of the other cases cited from the state courts, are of the like mature; and no'one of them assümes a power to direct án executive officer in the discharge of a. matter properly appertaining to his official functions. In the Tennessee case cited in the_ opening, 1 Cooke, 214, such a power was expressly disclaimed. And in 5 Binney, 105, Chief Justice Tilghman refused a mandamus, to the state treasurer, because it would bé • but another mode of suing the commonwealth ; thus applying- the maxim of common sense and good morals, that what the law will not allow you to do directly, you shall not attempt to do indirectly. But English', cases, and even cases from our state courts, however ,useful in furnishing principles and analogies, cannot -determine a question arising on the constitution of the United Statési Aware of this, the lear'ped counsel had chiefly relied on the cases of Marbury v. Madison, 1 Cranch, 1-37; MUntirev. Wood, 7 Cranch, 504; and M‘Cluny-v. Sillimpn, 6 Wheat. 598, In- the first of these, it was said, the' broad principle had been established, that in all cases where an individual was interested in the discharge of an official act, by an executive officer, the writ of- . mandamus was the appropriate remedy to compel the performance of such act; and the other cases were referred to as confirming this doctrine. In regard to these authorities, the attorney general referred to the observations in his official 'opinion in the' record, arid to the opening argument; and conceded, that if Chief Justice Marshall was correct, in considering the appointment of Marbury as complete, by the signing and sealing of the commission, and in-holding that he thereby, acquired a vested legal right- to the oiiiee, arid to the commission as the evidence of it, and -that the secretary held the commission as a mere depositary,-for the .personal and exclusive benefit of Marbury; there could then be. no doubt that a mandamus might be issued,' consistently enough with thb constitution:, because the delivery of the commission would-, in that case, be,a mere ministerial act, and the secretary of .state; quoad hoc1, a, mere’, ministerial officer.
    In this view of the case,.he assented, to'the comment,of-Justice Story, that no- lawyer could'doubt the power of congress to authorize the proper courts to iss.ue a.mandamus in such a casé; and to the similar declaration of. Justice Johnson, in 6 Wheat.;'and of Justice Thompson, in 1 Paine. .This'however falls'very far, short,of the doctrine now under, consideration,-a doctrine which, claims for tbelegislature the power to confer on the'courts of'justice.unlimited authority to supervise and control executive officers, in all matters whatsoever. In support of this position, the 13th section of the- judicial act of 1789, had been invoked as a legislative declaration that writs of mandamus might be issued to any officers of the United States, executive as wellás others. And it Was said, that although this section had been decided in Marbury v. Madison to be unconstitutional, as attempting to give to the Supreme Court an original jurisdiction In this respect; yet that it was entitled-to .respect in the-point now Under discussion." Independently of -any other answer, it was enlough to say that the section confined the writ to cages “warranted hy the principles and usages of. law:”1-that the principles of lavy forbid the issuing of a manda'mus, except in cases strictly of judicial cognizance; arid especially forbid the. interference of courts of .justice with .executive’functions: and that, the usages-in England and in this country, are-in_accordan.ce'with these principles. In the cases of The'United States v. Arredondo and others, 6 Peters, 763; 9;Peters, 172,&c.,,the United States, in'order to ,execute'the stipulations for the protection of private property contained in the Florida treaty, consented to appear in court at the suit of the claimant; gave the courts ample aütho-, rity to decide on the validity of. claims under the treaty; and empowered them when, a claim was established, to issue a mandate to a ministerial officer to make the necessary survey and execution of the decree. The irrelevancy of this procedure to the present discussion is obvious. -Nor did this part of the opposing.argument -derive any support from- any of the post office laws to which the learned counsel had referred; there being no provision in the sections which had been quoted, which empowered the judiciary, to interfere, in any way, except by takirig cognizance of suits regularly instituted.
    
      In,conclusion, the attorney general insisted, that evenif the post-, jfnaster general could properly be regarded in this caseSsa mere ministerial officer, árfd if the relators .could be considered as having a vested legál right tó the credits in question; still the court below had no jurisdiction-to issue the mandamus, because, its authority, in this respect was no greater than that of the ordinary circuit courts. It was-deserving of notice that no attempt had beén made by'the other side' tó explain how it happened that this' extended jurisdiction had never before been -exercised or asserted'; although cases calling for'its exercise must frequently have" occurred.
    • But suppose this objection out of the way; suppose the jurisdiction clear, and the legal'right-of the relators- to the credits -claimed by them admitted; yet the, court erred in awarding the mandamus. It .is not every case of the denial of- a vested lpgal right, which is to be redressed by .this writ. It must appear that there is no other specific legal remedy. _Iii the present case, if th,e rights of the relators be such as their counsel represent, an action on the case will plainly lie. .This is conceded. But' we are told, that the recovery in such, an action, will be only for the damages-prior to the commence-' ment-of the suit,- and that they will be obliged to bring new suits ad infinitum.. This, however, cannot be necessary, if in. the first action the' plaintiff choose to'go for the total damages. Then it is said, that the damages may .not be collected; and if collected, that the re-, lators will not-.get the.specific thing, the entry of the credits. > This objection might have been made in each of thp cases cited in the opening,, where the liability of the defendant to an action on the case, was held a sufficient reason for denying the-mandamus.
    Nor does it follow, even if the ultimate efficiency-of the legal re-, medy by action" be really doubtful, that a mandamus is to be issued. This is not one of those writs which is demandable of strict fight: the courts exercise, a sound, legal discretion, in awarding it. -Being-founded on the prerogative of the crown, the English court of king’s bench -will not issue it, unless there be a real necessity for’-it. ■ There -must bé a nodús, and oné, too, digmis vendice; or the court will not interpóse. ■ This- discretion the court below was bound to exercisé: and if this Court see that they have violated it, the judgment may, and should be reversed. • Now, it appears by the record not only that congress have full power to settle this whole controversy, and to give-to the relators all they claim; but that they have applied to congress for relief, and that their application is .still pending. In this posture of the case> is it discreet for .the court to' interfere by-mandamus? Suppose a resolution by the directors of a bank, or other monied corporation, instructing their cashier to pay certain moneys to á creditor of the corporation; the cashier makes ,a question as to the meaning, of the resolution; and refers the party to- the 'directors for further instruction; - suppose the' party to apply to them; but, before his application- is'décided, to ask for a'mandamus;.vyould it'be a sound exercise of legal discretion to’ interfere? Would not the party be told that he had selected his remedy; and that he must pursue it to a conclusion, before he could ask for this • prerogative writ? ' But the' relators say, that congress will not pass any further law. How -can this be judicially-known? ■ And why will not congress pass a further, law? -Becaus'e,- say the- relators, they consider the case'so very plain that no new law is necessary.- This; one would" think, would justify an expectation directly the. reverse. ■ At any rate the subject having been -actually referred to congress, by the executive; and the relators having gone to- that body, it would seem to.be manifestly indiscreet, and improper, for the.courts to interfere until some more-serious attempt be made to obtairf the-direction of that; department to which the-disposition of the public- 'treasure peculiarly belongs.
   Mr. Justice Thompson

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 for extra-services performed by .them; to inquire into1 and determine the equity of such claims; and to make the relators such allowance theréfor,. as-upon full examination .of all the evidence may seem right; according, to the .principles of equity». And that the .postmaster general'be; and he is hereby directed to credit the relators with whatever sum or sums of money; if any, the solicitor shall so. decide to be due to:them, for and. on account of any such service, or contract. And'the -petition further sets- out, that -the solicitor, Virgil Maxcy, .assumed upon, himself the performance of the duty and authority created and conferred upon him ,by the law; and did' make out and communicate his decision and award .to the postmaster general;-by which award and decision the relators were allowed one hundred and sixty-one thousand five hundred and sixty-three dollars and eighty-nine cents.--That the . postmaster-general, on being .notified of'the award, only so far obeyed and carried into execution the act oficon.gress, ag' to direct, and cause' to be carried to 'the-credit of. the relators, the sum-of on.e hundred and twenty-two thousand one-hundred' and two dollars and forty-six cents. But that he has,'and still does refuse and,neglect to credit-the relatprs with.the residue of the'sum so awárded:by the solicitor, amounting to thirty-nine thousand four hundred and sixty-two dollars and forty-three cents. And the petition prftyed the court, to award , a mandamus- directed, to the postmaster general; commanding him fully.to comply with, obey and execute the said act of congress,- by -crediti-ng the-relators with the full and entire sum awarded in their favour by .the solicitor -of the treasury.

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 the'proceeding-has been treated as an infringement'upon the executive department of the government; jvhich has led tó a very extended ' rangé of argument on the- independence, and duties of that department; but-which,-'according to the view taken, by the Court, of the case, is entirely misáppliéd.\ We dó not think the proceedings; in this case, interferes, in. any rqspect whatever, with the rights or duties of the executive;, or that it involves.any conflict ofpowefs between the executive and judicial departments of the government. The mandamus does, not seek to-direct or control the postmaster, general- in the discharge of any official duty, partaking in any respect of an executive character;, but to-enforce the performance of.a mere ministerial act, w.hich.-neither he, nor the President had any authority to, deny or control.

We- shall not, therefore, enter into any particular examination of the line to be drawn between: the powers'of the executive and-judicial departments of the government; The theory of the constitution undoubtedly is, that the • great powers of the government are divided into separate departments'; and so far as these powers. are' derived 'from the constitution,-the departments may be regarded as independent 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 depend upon the act of congress of the 2d of July, 1836. This is a special act for the relief of the relators, Stockton & Stokes; and was passed, as appears ori its face, to. adjust arid settle certain claims which they had for extra' services, as contractors for carrying the ■mail. These- claims were, pf course, upon the Upjted States, through-the -postmaster general.. The real parties to the dispute were, therefore, the relators and the United States. The United States could not, of course, be suéd,. or the claims in any way enforced against the United States,-without'their consent obtained through an .act. of congress: by which they consented to submit these claims to the .solicitor of the treasury to inquire into and determine the equity of the claims, and to make such allowance- -therefor as upon a full examination óf all the evidence, should seem right, according ■ to the principles of equity. And the act directs„the postmaster general to credit the relators with whatever sum, if any,- the. solicitor shall-decide to be due. to them, for or on account of any such service or contract.

The solicitor ■ did examine and decide that there'was due to the relators, one hundred and-sixty-one thousand five hundred and sixty-three dollars and ninety-three cents; ■ of this sum, the postmaster general credited -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 benefit, of the award, they may be considered as -impliedly .sanctioning and approving-of the decisions-of the solicitor. ' It is at least, so to-be'considered by one branch of the legislature. After the postmaster general, had refused to credit the relators with the full amount of the award 'of the solicitor, they, under the advice of the President; presented a memorial to congress, setting out the report Of the solicitor, and the refusal' ,of the .'postmaster general to give them credit for the amount of the' award, and praying congress to provide such remedy for the denial of their-rights* as in their wisdom might seem right and proper. , -,

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 faithfully executed. This is a doctririe that cannot receive the sanction of this court. It would be vesting in the President a dispensing power, which has no countenance for its support in any part of the constitution; and is asserting a principle, which,1 if carried out in its results, to all cases falling within it, would be clothing the President with a power entirely to control the legislation of. congress, and paralyze the administration of justice.

To contend, that the obligation imposed on the President to see the laws faithfully executed, implies a power to.forbid their execution, is a novel construction of the 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. The law upon its face shows the existence of-accounts between, the relators and the post office department. No money was required to be paid; and none- could have been drawn out of the treasury without further legislative provisión, if this, credit should overbalance the debit standing against the relators. But this was a matter with which the postmaster general had. no concern. He was not called upon to furnish the.means of paying such balance, if'any should.be found. He Ayas simply required to give {he credit. This was not an official act. in any other sense -than being a transaction in the department where the books and accounts were kept; and was an official act in the same sense that an entry in ¡the -minutes of a court, pursuant to an order Of the court, is an official act. There is no room for the exercise of any discretion, official or otherwise: all that is shut out by the direct and positive command of-.the law, and the act required to be done is, in every just sense, a mere ministerial act.

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

■ 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, 7 Cranch, 504; and M‘Cluny v. Silliman, 6 Wheat. 369. It is admitted that those cases have decided that the circuit courts o'f the United States, in the several states, have not authority to issue a mandamus against an officer of the United States'. And unless the circuit court in the District of Columbia has larger powers' in this respect, it had not authority to issue á mandamus in the present case.

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 2 Wheat. 369.

The question, in the first' case, originated in the circuit court of the United States, in Ohio, and came to this Court on' a certificate of division of opinion. The second 'time, it was an original application to this-Court, for-the mandamus. The third time, the application was-to the state court, and was brought 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 purchase for certain lands in. that -state, and fhe court, in giving its-judgment, say: the power tif the circuit.' courts to issue the Writ of .mandamus, is confined exclusively to those .cases in which it may be necessary to the exercise of their jurisdiction. - But, it is added, if the eleventh section of the judiciary act had ■ covered the whole ground of the constitution, there would be much ground for. exercising this power in many- cases wherein some ministerial act is necessary to the completion of an individual right, arising under the laws of the United-States; and then the fourteenth section of the. act iVould sanction the issuing of the writ'for such a purpose. But that although the'judicial power under the constitution extends to all cases arising under-the laws of-the United States, the legislature’have .not thought, proper to delegate that power to the circuit courts, except in certain specified eases. ,The decision, then, turned' exclu-. sively- upon the point, that congress had not delegated to the circuit courts all the judicial power that the constitution would authorize: and admitting what certainly' cannot be denied, that the] constitution is broad enough to warrant the vesting-of such power in the circuit courts; and.if in.those courts, it may be.vested in-any other inferior courts: for the judicial power, says the constitution, shall ■be vested in- one Supreme Court, and such inferior courts as the' congress may from time to' time ordain and establish.

It is not .designated by .the Court, in the 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 ministerial act, necessary to the completion of an individual right arising under the laws of the United States. And the case now before the Court, is precisely one of that description. And if the .circuit court of this district has the power to issue it, all objection arising dither from the character of the party, as an officer in the executive department of the government, or from the nature of the- act commanded to'be done, must be abandoned.

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

The ease came up again under the name of M‘Cluny v. Silliman, 6 Wheat. 598, on a writ of error to a state court, under the 25th section of the judiciary act; and the only question directly before the Court, was, whether a state court had authority to issue a mandamus to ah officer of the United States, and this power was denied. Mr. Justice Johnson, who gave' the opinion, and who had given the opinion of the Court in M‘Intire v. Wood, alluded to that case,.and gave some a.ccount of the application in that case, and the grounds upon which the Court decided it; and observes, that the mandamus asked for in that case, was to perfect the same claim, and, in point of'fact, was 'between the same parties; and in answer to what had been urged at the bar, with respect to the character of the parties, says, that case 'clid not turn upon that point; but that both the argument of counsel, and the decision of the Court, show that the power to ,'ssue the -mandamus in that case, was contended for as incident to the judicial jpower of the United States; and that the reply to the argument was, that although it might be admitted that this controlling power over its ministerial officers would follow from vesting ini its-courts the Whole judicial power of the United States; the argument fails here, since the legislature has only made a partial delegation of its judicial p‡wers to the circuit courts. That all cases arising under the laws of the United States, are not, per se, among the cases comprised within the jurisdiction of the circuit courts, unde»the provisions of the eleventh section.

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

The result of these cases, then, clearly is, that the authority to issue the writ of mandamus to an' officer of the United States, commanding him to perform a specific act required by a law of the United States, is within the scope of the judicial powers of the United States, under the constitution. But that the whole of that power has not been communicated by law to' the circuit courts; or in other Words, that it was then a dormant power not yet called into action, and vested in those courts; and that there is nothing 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. 7 Wheat. 534, furnishes a very strong, if not conclusive inference that this-Court did not consider the circuit court of this district as standing on' the same footing with the circuit courts in the states; and impliedly admitting that it had power to issue a mandamus in a case analogous to the present. A mandamus in that case had been issued by the circuit court of this district, to compel the admission of the defendants in error to the offices of directors in the Columbian Insurance Company; and the case was brought before this Court by writ of error; and the Court decided that a writ of error would lie, and directed affidavits to be produced as to the value of the matter in controversy. But it not appearing that it amounted to one thousand dollars, the' sum required to give this Court appellate jurisdiction from the final judgments or decrees of the circuit court of this district, thé writ of error was afterwards quashed.

It would' seem to be a reasonable, if not a necessary conclusion, that the want of a sufficient value of 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. 6 Cranch, 233; where the writ of error was quashed on the ground that the court below had not cognizance of the matter.

But -let us examine the act 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 the part.lying on.this side the Potomac, where the court was sitting when the mandamus was issued. It was admitted on the argument, that at the date of this act, the common law of England was in force in Maryland, and of cour.se it remained and continued in force in this part of the district: and that the power to issue a mandamus in a proper case is a branch of the common law, cannot be doubted, and has been fully recognised as in practical operation in that state, in the case of Runkle v. Winemiller and others, 4 Harris & M‘Henry, 448. That case came before the court on a motion .to show cause why a writ'of mandamus should not issue, commanding the defendants to restore the Rev. William Runkel into the place and functions of minister of a certain congregation. The court entertained the motion, and afterwards issued a peremptory mandamus. And in the opinion delivered by the court on the motion, reference is made to the English doctrine on the subject of mandamus; and the court say, that it is a prerogative writ, and grantable when the public justice of the state is concerned, and commands the execution of an act, where otherwise justice .would be obstructed. 3 Bac. Ab. 527: It is denominated a prerogative writ, because the kjng being the fountain of justice' it is interposed by his authority tf-ansferred to the court of king’s bench, tq¡ prevent disorder from a failure of justice where the law has established no specific remedy, and where in justice and, good government there ought to be one! 3 Burr, 1267. I.t is a writ of right, and lies, where there is a right to execute an office, perform a settice, or exercise a franchise; and a person is kept out of possession, and dispossessed of such right, and has no other specific legal remedy. 3 Burr, 1266.

These, and other cases where a mandamus has' been considered in England as a fit and appropriate remedy, are referred to by the general- court; and it is then added, that the position that this court is invested with similar powers, is generally admitted, and the decisions have 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 judicial history of that country, is 'said to have sat in person, and is presumed still to sit. And the power .to issue this writ is given to the king’s bench only, as having the general supervising power over all inferior jurisdictions and officers, and is coextensive with, judicial sovereignty. And the same theory prevails in our state governments, where the common law is adopted, and governs in the administration of justice; and the power of issuing this writ is generally confided to the highest court of original jurisdiction. But, it cannot be denied but this common law principle may be modified by the legislature, in any manner that may be deemed proper and expedient. No doubt the British parliament might authorize the court of common pleas to issue this writ; or that the legislature of the states, where this doctrine prevails, might give the power to issue the writ to any judicial tribunal in the state, according to its pleasure: and in some of the states, this power is vested in other judicial tribunals than the highest court of original jurisdiction. This is done in the state of Maryland, subsequent however to the 27th of February, 1801. There can be no doubt, but that in the state of Maryland a writ of mandamus might be issued to an executive officer, commanding him to perform a ministerial act required of him by law; and if it would lie in that state, there can be no good reason-why it. should not lie in this district, in analogous cases. But the Writ of mandamus, as it is used in the courts of the United States, other than the circuit court of this district, .annot, in any just sense, be said to be a prerogative writ, according to the principles of the common law.

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

Under the judiciary act, the power to issue this writ, and, the purposes for which it may be issued in the courts of the United States, other than in this district, is given by the fourteenth section of the act, under the general delegation of power “ .to issue all other writs not specially provided for by statute,-which, may- be necessary for the exercise of, their respective jurisdictions, and agreeable to the principles and.usages of law.”. And it is under this power, that this Court issues the writ to the circuit courts, to compel them tor proceed' to a final judgment of decree in a, cause, in-'order that we may exercise the jurisdiction of review given by the law: and the same power,is. exercised by the circuit courts,over the district courts, where a writ of error or- appeal lies tp the circuit court.' • But.this pbwer is not .exercised, as. in England,.'by the king’s bench, as having a generak supervising power over inferior courts f but only for the purpose of bringing the case'to á final judgment or decreé, so ’ that it may be reviewed, , The' mandamus does-not direct'th.e inter rior court how to .proceéd, but only that it must proceed, according to its own judgment, to a .final determination; .otherwise it cannot be. reviewed, in the appellate court. So that it is in a special, modified manner, in which the writ of mandamus is.to be used in this Court,' and in the .circuit courts in the states; and does not stand on the same footing, as in this district, under the general adoption of the laws of Maryland, which included' the common law, as altered or modified . on' the 27th of. February, 1801'.

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. that power- in courts of justice. But power, as used in the constituí tion, would seem to embrace both.

Thus, all legislative power shall be vested in congress. . The executive power shall be vested in a President. , The judicial power shall be vested in one Supreme Court, and in such inferior courts as congress shall, from time to time, ordain and establish: and this judicial .power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States; and treaties made; or which shall be made, under- their authority, &c. This power must certainly embrace jurisdiction, so far as that term is applicable to the exercise of legislative or executive power. And as relates to judicial power, the term jurisdiction is not used, until the distribution, of those powers,among the several courts, is pointed 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 a doubt; and that this is a case in law is equally clear. It is'the pfosecution of a suit to enforce a right secured by a special act of congress, requiring of the postmaster general the performance of a precise, definite, and specific act, plainly enjoined by the law. It cannot be denied but-that congress had the power to command that act to be done; and the power to enforce the performance of the act must rest somewhere, or it will present a case which has often been s.aid to involve a monstrous absurdity in a well organized government, that there should be no remedy,-although a1 clear and undeniable right should be shown to exist. And if the remedy cannot be applied by the circuit court of this district; it exists nowhere. But, by the express terms of this act, the jurisdiction of this circuit court extends .to all cases in law, &c.. No more general language could have been used. An attempt at specification would have weakened the force and extent of the general words — all cases. Here, then¿ is the delegation, to this circuit court, of the whole judicial power in this district, and in the very language of the constitution; which declares that the judicial power shall extend to all cases in law and equity arising under- the laws of the United States, &c.; and supplies what was said by this Court in the cases of M‘Intire v. Wood, and in M‘Cluny v. Silliman, to be wanting, viz: That the whole judicial power had not been delegated to the circuit courts.in the states: and which is expressed in the strong language of the Court, that the idea never presented itself to any one that it was not within the scope of the judicial powers of the United States, although not vested by law in the courts of the general government.

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

. It was not an uncommon course of legislation in the states, at an early day, to adopt, by reference, British statutes: and'this has been the course of legislation by congress in many instances where 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, 5 Peters, 280, the Court, in speaking of the adoption of certain English'statutes say: by .adopting them, they become our own as entirely-as if-they had been enacted by the legislature. We are then to construe this third section of the-act of 27th of February, 1801, as if the eleventh section of the act of 13th of February, 1801, had been incorporated at full length; and by this section it is declared, that the circuit courts shall have cognizance of all cases in law or equity, arising under-the constitution and- laws of the Unitéd States, and treaties made, or-which shall be made under their authority: which are the very -words of the constitution, and which is, of course, a delegation of the whole judicial power, in cases arising under the constitution and laws, &c.; which meets and supplies the precise want of delegation of power which prevented the exercise of jurisdiction in the cases of M‘Intire v. Wood, and M‘Cluny v. Silliman; and must, on the principles which'governed the decision of the Court in those cases, be sufficient; to vest the power in the circuit court o'f this district:

The judgment of the-court below is accordingly affirmed with costs, and the cause remanded for further proceedings.

Mr. Chief Justice Taney:..

As this case'has attracted some share of the public attention, and a diversity of opinion exists on the bench ; it is proper that I 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.

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

.It has been decided in this Court, that-the circuit courts -of 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, 6 Wheat. 598,- when the former decision was re-examined and affirmed. Ahd it is worthy of remark, that although the decision first mentioned was-made twenty-five years ago, yet congress have not -altered the law, or enlarged the jurisdiction.of the circuit courts in-this respect-; thereby showing, that it has not been deemed advisable by the legislature, to confer upon them the'jurisdiction over the officers of the general government, which is claimed by the circuit- court for this district.

. As no reason of policy or public convenience can be assigned for giving to the circuit court here a jurisdiction on this subject, which has been denied to the other circuit courts;.- those who maintain that it has been given ought to show us words which distinctly give it, Or from which it can plainly be inferred. When-congress intended to confer this jurisdiction on the Supreme Court, by the act of 1789, eh. 20, they used language which-nobody could misunderstand.- In that law they declared that the Supreme Court should have power to issue “ writs of mandamus, in cases warranted by the principles and usages of law to any courts appointed, or persons holding office, under the authority of the United States.” Here are plain words. But no such words 'of grant are to be round in the act. of February 27, 1801, which established thé circuit court of the District of Colombia, and defined its powers and jurisdiction. Indeed, those who insist that the power is given, seem to have much difficulty in fixing upon the particular clauses of the law which confers it. Sometimes it is said to be derived from one section of the act; and then from another^ At one time, it is said to be found in the first section; at another in the third section, and then in the fifth .section; and sometimes it is said-to be equally .discoverable in all of them. The power is cértainíy no where given in direct and positive terms: -and the difficulty in pointing out the'particular clause from which the power is plainly to be inferred, -is strong proof that congress never intended' to confer it. For if the. legislature wished to vest this' power .in the circuit court for this district, while they denied it to' the circuit courts sitting in thé states, W’e can- hardly believe that dark and ambiguous -language- would have been selected to convey their meaning ; words would have been found in the law equally plain with those’ above quoted, which conferred the power on the Supreme Court.

But, let- us examine the sections which 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 used and practised in Maryland at the date of the act of' congress in •question.

. The power to issue the writ of mandamus to an officer' of the government, commanding him to do a ministerial act, does not, by .the' common law of England, or by the laws of Maryland, as they existed at the time of the cession, belong to any court whose jurisdiction was limited to a particular section of country, and was not .coextensive with, the sovereignty which 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 at least' supposes to be consonant to right and justice. ■ It is a high prerogative writ of a most extensively remedial nature.” And Mr. Justice Butler, in his introduction to the law relative to trials at nisi prius, also- places the right to issué this writ upon the peculiar and high powers of the .court of king’s bench. In page 195, he says: The writ of mandamus' is a prerogative writ issuing out of .the court. of king’s bench, (as that court has a general superintendency over all inferior jurisdictions and persons;) and is the proper remedy to enforce obedience to acts of parliament, ánd to the king’s charter, and in such a case is demandable of right.’-’ Indeed, in all of the authorities it is uniformly called a prerogative writ,” in order to distinguish it from the ordinary process which belongs to courts of justice; and It was not originally considered as a judicial proceeding,' but was exercised as a prerogative power. In the case of Audley y. Jay, Pppham; 176, Doddridge, Justice, said: This court hath power not only injudicial things, but also in-some things which are extrajudicial. The maior and comminalty of Coventry displaced one 'of the aldermen and he was restored; and this-thing is peculiar to this court, and is- one of the flowers .of it.”

These peculiar powers were possessed by the' court of king’s bench; because, the king originally sat there in person, and aided in the 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. and the courts of the province formed on the same principles. The proprietary government established what was, called the provincial court; in which it appears that, in imitation of what had been done in England, the lord proprietary, in an early period of the colony, sat in person. This coúrt possessed the saíne powers in the province that belonged to the court of king’s bench in England. Its jurisdiction was co-extensive with the dominions of the lord proprietary; and it exercised a general superintendence overall inferior tribunals and persons in the province; and consequently possessed the exclusive power of issuing the writ of mandamus.

When the revolution of 1776 took place, the same .system of jurisprudence was adopted; and the fifty-sixth article of the constitution of Maryland provided, “that three persons of integrity and sound judgment in the law, be appointed judges of the court now called the provincial-court, and that the same court be hereafter called and known by .the name of the general court.” No further description- of the jurisdiction and powers of the general court is given. It, therefore, in the new order of>things, was clothed with the same powers'and jurisdiction» that had belonged to the provincial court before .the revolution. In other words, the general court was, in the state of Maryland precisely what the court of king’s' bench was in England; Afterwards, and before the cession of the District of Columbia to the United States, county courts were established in Maryland corresponding in character with what are called circuit courts in most of the states. These courts possessed general jurisdiction, 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 of king’s bench-having a superintending power.over inferior courts of jurisdiction, may, and of right ought to interfere to supply a remedy, when the ordinary'forms of proceeding are inadequate to the attainment of justice in matters of public concern. 3 Bac. Abr. 529, 530. The position that this Court is invested with similar powers, is generally admitted, and the decisions have invariably conformed-to it: from whence the inference is plainly deducible, that this court may, and of right ought for the sake of justice, to interpose in a summary way to supply a remedy, where, for the want of a specific one, there would otherwise be a failure of justice.” This case was decided in 1799, in the-general court; and it shows, most evidently, that th'e power of issuing the writ of mandamus, was confined to that court, and was derived from its king’s bench powers of superintending inferior courts and jurisdictions in the execution of the law; and that this power was not possessed by any other court known to the laws of Maryland. And so well and clearly.was this understood to be the law of the state, that when the general court was afterwards abolished by aii alteration in the constitution, and county courtsi established as the highest courts of original jurisdiction, no one' supposed that the prerogative powers of the general court were incidental to their general jurisdiction over cases at common law; and a statute was passed in 1806, to confer this jurisdiction upon them. This act declares, “ that the county courts shall have, use, and exercise, in their respective counties, all' and singular the powers, autho-. rities, and jurisdictions which the general court, at the time of the abolition thereof, might or could have exercised in cases' of writs of mandamus.” The 'adoption of the laws, of Maryland, therefore, does not give to the circuit court for the District of Columbia,, the power to issue the writ of mandamus, as an', incident to its general jurisdiction over cases at common law. It has none of what Blackstone calls the “ high and transcendent” jurisdiction of the court of king’s bench in England, and of the general court in Maryland. It is not’superior to all the other courts of the United States of original jurisdiction throughout the Union; it is not authorized to superintend them, and “ keep them within the bounds of their authority;” it does'not “superintend all civil incorporations” established by the United.States; nor “ command magistrates,” and other officers of the United States in every quarter of the country, “to do what their duty requires in every case where there is no other specific remedy.” Its jurisdiction is confined to the narrow limits of the district; and the jurisdiction which it derives from the adoption of the laws of Maryland, must. be measured..'by that., of the county courts of the state, which' the court for this district in every respect resembles. Thesé courts had no power to issue the writ of mandamus at the time when the laws of-Maryland were adopted by congress; and when the county courts afterwards became, by the abolition of the.general court, the highest courts of original jurisdiction, still, by the laws of that state, they could not issue, this writ,- until the power to do so was conferred on them by statute. As this act of assémbly passed five years after congress assumed jurisdiction over the district, it forms no part of the laws .adopted by the act of congress. I cannot, therefore, see .any ground whatever for deriving the authority to issue this writ of mandamus from. the first section of the act of congress, adopting the laws of Maryland as they then existed.

2. But it is insisted, that if the power to issue the writs of mandamus is not incidentally granted to this circuit 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 form prescribed by. law. '■ In other words, a case, is a suit in-law or equity, instituted according; to theregular course of judicial proceedings; and when it involves any question arising Under the constitution, laws, or treaties of the United States, it is within the judicial power confided, to the Union.” Now, if a case at law means the Same thing ás a-suit at law, and the latter words do not give jurisdiction .to the circuit courts out .of this district to issue the writ of ijnandamus to an officer of the general government, how can words, which are admitted to mean the same thing, give the powér to the circuit court within this district?: How cari the cognizance of “ cases at law,” in the act of- congress before us, be.construed to confer this jurisdiction; when it has been settled by two decisions of .this Court, that words of the same meaning do not gi.v.e it to the other circuit courts? We cannot give this construction to the act of February 27th, 1801, without giving- a -judgment inconsistent with the deci-. sions of this Court in the tuzo cases abovementioned; and I cannot agree either to overrule these cases, or to give a judgment inconsist* entwith them. .

' 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. These courts, by virtue of their prerogative powers; interposed “to supply a remedy in a summary way,” where' ho suit or action known to the law; would afford one to the party for the wronghe'had sustained. It is. not a suit in form or substance, and never has been, so. considered iti England or-in Maryland. For if it had been considered in Maryland as a suit at. law, Chief Justice Chase, in the case of Runkel v.Winemiller, hereinbefore referred to,, would hardly have, put his decision on the. prerogative powers of the general court in the manner hereinbefore stated. Since the statute of the 9th o.f Anne, authorizing .pleadings in proceedings.by. mandamus, it has been held that such a proceeding is in the .nature of an. action; 'and that' a writ of error will lie upon the judgment-of the court awarding a péremptory mandamus. But it never has been said in any book óf authority, that this prerogative process is ‘-‘an action, or “a suit,” or “a case” at law; and never suggested, that, any court, not clothed with the. prerogative'powers of the king’s bepch, could issue the process, according to the principles.of the common law, unless the'power to do so had been conferred by statute. ■

. ; 4; But it is said that if the jurisdiction exercised in this 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 court would be enlarged or diminished, from time to time, as con-' gress might enlarge or diminish the powers of the circuit courts in its general system. And when the' law of February 13, 1801, was afterwards repealed, and the. act of 1789 re-enacted, the powers of this circuit court were regulated by the powers conferred on the circuit courts by the last mentioned law. It was the intention of congress to.establish uniformity in this respect; and they have used language which, in my opinion, makes that intention evident. The circuit couri for this district cannot, therefore, refer for its “powers” to .the act of February 13, 18.01, since that act has been repealed. ,

In the second place, if the powers of the circuit court for the District of Columbia are Still to be regulated by the law which was repealed as long ago 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 cases or controversies o(f which they shall have “cognizance.” And so also in the act of February 27,1801,:establishing the circuit court fot this district, the same distinction is continued; and the 3d section (the one now under consideration) gives'the court “all the powers by law vested in the circuit courts;” while the <5th section enumerates particularly the matters and controversies of which 'it shall have “ cognizance;” that is to say, Over which it 's.hail exercise jurisdiction, by the means and the “ powers” given to it for that purpose, b.y this same act of cqngress. With these .sqvteral- laws before us, in each of which the same-terms have evidently-been always used in the same sense, it appears to me impossible to doubt the meaning which congress intended to affix to them. ' If they had used the word “powers” ahd the word “cognizance,” as meaning the same thing; would they, in the 10th section of the act of February, 13, 1801, have given jurisdiótion in general terms under the narneof “powers” to the courts thereby established; and then have immediately followed it up, with a- specification of thé cases .of which it should take “cognizance:” and if such ah unusual mode of legislation had been adopted in this law from inadvertence or mistake, would it have been adhered to and repeated in the act of February -27, 1801? It is hardly respectful to the legislative -body, for this Court to say so. It is clear that the wqrd “ powers” must have been constantly used in these laws'in the sense I have already stated; and if the 3d section of the last mentioned act is to be construed as referring particularly to the act of February 13, 1801, it will not affect the present controversy: ‘ For we find the “powers” of those circuit courts'given by the lpth section; and they are there given by referring as generally to the “ powers” conferred on the circuit courts by preceding laws; so that after all we are still carried back to the act of 1789, in order to learn the powers of the circuit courts established by the act of February 13, 1801; and consequently we are also to learn from that law, the “powers” of the circuit court for this district. And upon turning to the act of 1789, we find there the power given to the Supreme Court to issue the writ of mandamus “to persons holding office under the authority of the United States;” but we find no such power given to the circuit courts. On the contrary, it has been decided as herein-before stated, that under the act of 1789, they are not authorized to issue the process ip question. The 3d section of the act of February 27, 1801, will not, therefore, sustain the jurisdiction exercised in this case by the circuit court.

But the principal effort on the part of the relators, in this branch of the argument, is to give. to this, third section such a construction as Will confer On- this circuit court a jurisdiction coextensive With thaf given to the circuit courts, by the eleventh section of the act of February 13, 1801;-. In other words, they propose to expound the aqt of February 27th, as if this section of the'act of February 13th was inserted in it The eleventh section of the act 'referred to, .enumerates and specifier particularly the cases of which the circüit courts-thereby established had “cognizance;” and the relators insist that jurisdiction in ¡all the cases mentioned in-that,section, is also' conferred on the circuit court for this, .district, by. reason of the provision in thie third- section of the act of February 27th, above mentioned.' And they contend that the-aforesaid eleventh1 section gave tó the circuit courts established by that law,, jurisdiction to issue the' :writ in question; and that the circuit court for this district, therefore, possesses the same jurisdiction, even although it is hot given by.the.fifth section.of the act establishing it. The object of this argument is to'extend the jurisdiction'of this circuit court beyond the limits- marked out for it- by the fifth section of the act which created it; provided the eleventh section of the act of-'February 1,3th shall be construed to-have given a broader jurisdiction.

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 appropriately apply to its process, to its modes of proceeding, and to other powers” of the court; and which certainly hare no necessary connection' with the cases of which the court is authorized to take “ cognizance.”

I do not, however, mean to -say, that the eleventh section of the act of February 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 lead us to suppose that congress would demy the writ of mandamus to those who- have such .rights in. the states, and give it to those who have rights in’this, district? There would be no..equal jusited in •such legislation;; and no good reason of policy or convenience'can be assigned for such a distinction!

• The case of the Columbian Insurance Company v. Wheelwright, 7 Wheat. 534, has been relied on'as sanctioning the exercise of. the jurisdiction in question;' and it is said, that this Court, in determining that a writ of erroy would -lie from the' decision of the eircuit co.urt of this district, awarding a peremptory mandamus, ha,ve impliedly decided that the circuit, court had jurisdiction to issue the process. I confess I cannot see ithe' force of this argument.. The 8th section-, of the act of February 27, 1801, provides!, that any final judgment, order, or decree, in said circuit court, wherein the matter in dispute, exclusive of costs,- shall exceed the value of one hundred dollars,- may. be re-examined, and reversed or affirmed, in the Supreme Court of the United States, by writ of error or appeal, which shall be.prosecuted in the same- manner; under the same-regulations, and the same proceedings shall be had therein-as is or shall be provided in the case of writs of error, or judgments, or appeals, upon orders or decrees rendered in the circuit court of the United States.” Now the order for á peremptory mandamus in the case cited, as well as in the one. now before the Court, was certainly a final judgment” of the circuit court. It decided that they had jurisdiction . to issue the mandamus, and that the case before, them was a proper one for the exercise of this jurisdiction. - Being the “ final judgment” of the 'circuit court, it Was liable to be re-examined in this Cour-Cby writ of error; and fo be reversed, if upon such re-examination, it was found that- the circuit court had committed an error; either in assuming a jurisdiction which did not belong to it, or. by. mistaking the rights of the parties, if it had'jurisdiction to issue the' mandamus.' In the case of Custís v. The Georgetown and Alexandria Turnpike Company, 6 Cranch, 233, the Supreme Court sustained the writ of error, and reversed the judgment of the circuit court of this district, quashing an inquisition returned to the clerk; and this was done upon the ground that the circuit court - had exercised a jurisdiction which did not belong to it. There are a multitude.of cases -where this Court have entertained a writ of error for the purpose of reversing the judgment of the court below, upon the ground that, the circuit court had not jurisdiction of the case, for the wantof the proper averments in relation to the citizenship of‘the parties. .-

■ It is certainly , error in a circuit court ..to assume .a jurisdiction which has not been conferred 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,

Mr. Justice Barbour;.

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 postmaster general, to compel him to perform any ministerial duty devolved on him bylaw.

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. jurisdiction to the circuit court of this district,, so far as respects this’ question, is in these words: “ That said court shall have cognizance of all cases in law and equity, between parties, both or..either of which shall- be resident, or shall be found within the said district; and also of all actions or suits of a civil nature, at common law or in 'equity, in which the United States shall- be plaintiffs or complainants.”

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 number of the Federalist, just preferred to- — “. That the judiciary power of every government'looks beybtid its own local or municipal laws, and- in civil cases*.lays- hold of all subjects -of litigation, between parties within, its jurisdiction, though 'the. causes of ,.dispute aré relative to the laws of the most distant part of the globe.” ' Iu conformity With this principle, iit is said- by'this Court, 1 Wheaton; 340,'speak-' ing-of .the’state: courts: “ From 'the very mature of their judicial-duties', tfiey, would be called upon to .pronounce the law applicable to the case in judgment..’ They were*, not to decide merely according • to the. lawk-or constitution1' of "the.' state, but according to.the constitution, laws, and. treaties of the'United States, the-supreme law-'of the land.” And' in the same .case, after putting, cases illustrative of the proposition, and-a1'course .Of reasoning upon .'them,- they conclude by saying, A it must therefore be conceded, that-the constitution riot. only contemplated’, but meant to. provide for cases within the Scope of the judicial-power of the United. State's, which might yet depend before state tribunáls. It was foreseen that in ''thé exercise of their ordinary juris,diction, state courts would incidentally take cognizance of cases arising utider the constitution, the laws,:-and "treaties ,oF the . United States;”

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' amount to an anenation-of state-power,by.implication, the-jast appears to'jne the most defensible construction.” :The reason, then, Why these words were inserted in-the eleventh' section of the judiciary act,. was to.remove t-he.--doubt .here, expressed, to.obviate all difficulty upórjthe question .whether the' grant; of. judicial'power to -the federal'courts, without" saying more, might'not. possibly be'constrtíed to exclude the jurisdiction bf the state.courfs: Its. sble-ohject was, as.-is.- sometimes said in the law -bbqlis, to ¿xcludé a' conclusion.

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 suits in law and equity,-has as much-.judicial power-by. those terms, ■as a. court has by the .terms, all' cases in' law: and. equity. The only difference between the two sections under consideration, in relation to the question . before us,-consists in‘■the two.limitations contained in. the 11th section of the judiciary act; the. one as to.thé character of the parties, the other as to the value of t^é matter in dispute.

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 the other circuit courts of the United-States, by the following course of reasoning: We navfe been referred to the third section of'the act of the 27th of February, 1801, establishing the circuit court of this district, which section is in these word'á: — “ The said court, and the judges thereof, shall have all the powers..by law vested in the Circuit courts, and the judges of the circuit courts of the United States.” It is then' assumed in the argument, that'the powers of the court, and its jurisdiction, are the same thing; it is also assumed, that the third section has reference nob to the powers of the circuit courts of th'é United .States, and their judges, as they shall be from time to time modified byjegislation, but tó those which-were established by the act of the 13th February, 1801, entitled “ an act to provide for the .more convenient organization of the courts of the United States;” which, though since repealed, was passed fourteen days before the-act establishing the circuit court of. this district,- and was in .force at •the date of the passage of this latter act.

We 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, that the circuit courts of the United State's did not possess the' power to issue the writ of mandamus. • But let us briefly examine, one of.the ( assumptions which I have, argumenti gratia, conceded, for thé'purpose of giving the fullest force to the, argument founded on it: I mean that which takes for granted, that the powers and the jurisdiction of the courf are .the same thing. I say nothing of the other assumption, simply because it is wholly immaterial to. the view which I take. Are the powers and jurisdiction of thje court equivalent? Whatever may be the meaning of these terms in' the abstract, they ate clearly used as,of éssentially different import in. the .acts'.of Congress; "and this difference will, in my'opinion, go. far to. show tlie -error, in the conclusions drawn from the. assumption, that they are of equivalent import. There are several reasons which conclusively prove'that they were' used in different senses by. congress. ' In the. first place, as well 'in the act of 17S9, establishing the circuit courts of the United States, and the act of the 13th February,'.1801, reorganizing them, as in .the act of the 2,7th February,-.1801, establishing the circuit court of this district;- the .jurisdiction of' the court is defined- in one section, and its powers are declared ip another. . Now, it is an obvious remark, that if powers and jürisdiction were considered as equivalent, here was mere, useless táutology. • For, upon this hypothesis, the grant of powers carried with it, jurisdiction; and, e con-verso, the grant of jurisdiction carried with it powers.

In the next place, we not. only find that in some sections the term cognizance, or jurisdiction, {which are synonymous,)-is 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, &c. Jt is thus apparent, that congress used the terms jurisdiction, and powers, as being of different, irnport. The sections giving jurisdiction describe' the subject matter, and the parties of which the courts may take cognizance; the sections giving powers, import authority to issue certain writs, and do certain acts incidentally becoming necessary in? and being auxiliary to, the exercise of their jurisdiction. In regard to all the powers in the fifteenth and seventeenth sections, this is apparent beyond all doubt, as every power given'in both those sections, necessarily presupposes that it is to be exercised in a suit actually before them, except the last in the seventeenth section, and that is clearly an incidental one, it being a power “to make and establish all necessary rules for the orderly conducting business in the said courts,” &c. And this brings me directly to the fourteenth section, tinder which it was contended, in the case of M‘Cluny v. Silliman, that the circuit-courts could issue writs of mandamus. That section is .in these words: — “That all the beforementioriedcourts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for' by statute, which may be necessary for the exercise of. their respective jurisdictions, and agreeable to the principles and usages of law.” As' tfie writ of mandamus is not specially provided for by law, except in the case of the Supreme Court; it is obvious, that to enable any circuit'court to issue it, it must be shown to be necessary to the exercise of its jurisdiction. It is argued here, as it was in the case 'of M‘Cluny v. Silliman, that a mandamus is proper, where there is no other specific legal remedy; and .that therefore, in such a case, it • is necessary to the exercise of the jurisdiction of the court, and so within the words of the statute. But what was the answer of the Court in that case? Amongst other things, they said: — “ It cannot be denied, that the exercise of this power is' necessary to the .exercise of jurisdiction in the court below. But why is it necessary? Not-because that court possesses-jurisdiction, but because it does no! possess it.” Again they said: — “The fourteenth section of the act under consideration, could only have been intended to vest the power now contended for, in cases where the jurisdiction already exists; and not where it is to be courted,iOr acquired by means of the writ proposed to be sued out. Such was the case brought up from Louisiana, in whjeh the judge refused to proceed to judgment,'by which act the plaintiff must have lost his remedy below, and this Court have been deprived of its appellate control over the question of right.” As this answer was considered conclusive in thé case referred to, it would be sufficient for me tó sfdp here; with giving the same answer. But let us pursue the subject a little further. The proposition which I maintain is, that this section did not. contemplate'any original writ, but only those which are incidental and auxiliary. That it did not contemplate any writ as original process, is' apparent from this consideration; • that by an act passed at the same session, and within five days thereafter, entitled an act to regulate processes in the courts of the United States, the forms of writs and executions, except their style and modes of process |hen used in the supremé courts of the states; Were adopted.

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 Supreme Court is the highest; and accordingly, to that Court, the power to issue it is given., It is given in, express wprds to that Court, and is not given in terms to any other court.; It is given that Court in express terms, in the thirteenth- section; and although not given in terms in thé .fourteenth section, immediately following, the power to issue it-is-attempted to be derived, by implication,' from that section:.. And' last, but not least; where it is given, it is subject to no limitation, but that it is to issue “ in cases warranted by the principles and usages of' law/’ and may. be issued to any courts appointed by, or persons holding office under the authority of the United StateSWhereas, in the fourteenth section, all the- courts of the United States áre empowered to issue certain writs, naming them, and then others, not naming them-; arid not mentioning the writ of m.andamus, which may be necessary for the exercise of their respective jurisdictions. Nor is the force of this-argument at-all ’weaken- . ed by the circumstance that -this Court, in the case of Marbury v. Madison, 1 Cranch, 137, declared that part of the judiciary act, which emppwered the Supreme Court to issue the writ of mandamus to be unconstitutional, so far as it operated as an act of original jurisdiction. ■ Because this .case was decided nearly four teen, years after the law- wás passed, and we must construe the act as if it were all constitutional, because congress certainly, so considered it; and we- are now inquiring into -what was their intention, in its various provisions, which can only be known 'by construing the act as a whole, embracing its several parts, of which the power in question was one. But if the other circuit courts of the United States under the powers given to them, cannot, as has been decided by this Court, issue the. Writ of mandamus, then the circuit court of this district cannot do it, under'the powers' given to it, because its powers are the same with those of the others. For, by the third section of t^e act establishing it, it and; its judges, are. declared to have all the powers bylaw-vested in the circuit courts, and the judges of the circuit courts .of'the United States; and even supposing that to refer to the powers of the circuit courts, as organized by-the act of 1801, that does not váry them; because, by the tenth section of that act, those courts are invested with all the powers heretofore granted- by law to the circuit - courts of the United States; that is, those by the jüdiciary act,'unless'where ptherwisé provided by that act; and there is no pretence, that there is any power given in-that act, which affects this question. If then, the jurisdiction and the powers of the circuit court of'this district are the same with the jurisdiction and. powers of the->other circuit courts of the United States; and if, as has'been soletnnly.decided by this Court, that jurisdiction and those powers do not authorize the other circuit courts to issue the writ of mandamus, it would seem to follow, as an-inevitable'.consequence, that neither can. the circuit court of'this district issue that writ.

Finally, it. was argued, that if all the other sources of power 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, whilst inthq states there‘are federal add state courts, in the one or the other of which justice is administered, according to the character of the parties, and other ' circumstances; in this district, by its judicial organization, the same justice.which in the states-is administered by the two classes .of courts, is here-dispensed by the instrumentality of.one court, viz: the circuit court of this district. But that, as in the states, the . federal circuit court cannot issue the writ of mandamus, because the jurisdiction and powers giveri to them, by congress do not authorize, it; so. here, the circuit court of this district cannot issue it, by virtue of the jurisdiction and powers given •'to it by congress; (exclusively of the adoption of the laws1 of Maryland;) because, exclusively of those laws, its jurisdiction and powers, as I think I -have shown, are neither more nor less, in reference to this subject, than those of the other circuit courts of the United . States. And as in the states, the state courts cannot issue it, although the common law is in force there; so the circuit court of this district cannot issue it, although the common , law, by the adoption of the ..laws of Maryland, is in force here; it being, in my opinion, impossible to maintain the proposition, that the adoption of the common law .here, can impart a greater authority than, .it does to the courts of the very- state from which it ,was adopted!

. The result of that adoption, as it regards this question may, as it seems to 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.

Mr. Justice Catron concurred in opinion with the Chief Justice, ¿nd Mr. Justice Barbour. 
      
       I derive my knowledge of the fact that the Lord'Proprietary sat in person in the provincial court, from a manuscript work of much value, 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.
     