Kendall v. United States Ex Rel. Stokes

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made by him, and the credits and payments which had been made;-and-directed that the allowances and credits should be withdrawn, and the relators recharged with divers payments they had received.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 *609 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 *610 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 *611 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 *612 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 *613 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. *614 The law upon its face shows the existence of-accounts between, the relators and the post office department. No money was required to be paid; and none- could have been drawn out of the treasury without further legislative 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 *615 law will afford an adequate remedy. If the denial of the right be considered as a continuing injury, to be redressed by a series of successive actions, as long as the right is denied-; it would avail nothing, and never furnish a .complete remedy. Or if the whole amount of the award claimed should be considered the measure of damages, 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 *616 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 mi *617 nisterial 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 *618 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 *619 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 *620 the part.lying on.this side the Potomac, where the court was sitting when the mandamus was issued. It was admitted on the argument, that at the date of this act, the common law of England was in force in Maryland, and of 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. *621 the judicial history of that country, is 'said to have sat in person, and is presumed still to sit. And the power .to issue this writ is given to the king’s bench only, as having the general supervising power over all inferior jurisdictions and officers, and is coextensive with, judicial sovereignty. And the same theory prevails in our state governments, where the common law is adopted, and governs in the administration of justice; and the power of issuing this writ is generally confided to the highest court of original jurisdiction. But, it cannot be denied but this common law principle may be modified by the legislature, in any manner that may be deemed proper and expedient. No doubt the British parliament might authorize the court of common pleas to issue this writ; or that the legislature of the states, where this doctrine prevails, might give the power to issue the writ to any judicial tribunal in the state, according to its pleasure: and in some of the states, this power is vested in other judicial tribunals than the highest court of original jurisdiction. This is done in the state of Maryland, subsequent however to 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 *622 principles and.usages of law.”. And it is under this power, that this Court issues the writ to the circuit courts, to compel them 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. *623 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 *624 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. *625 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 *626 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.

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.

*627 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 *628 to issue “ writs of mandamus, in cases warranted by the principles and usages of law to any courts appointed, or persons holding office, under the authority of the United States.” Here are plain words. But no such words 'of grant are to be 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 *629 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 *630 at least' supposes to be consonant to right and justice. ■ It is a high prerogative writ of a most extensively remedial nature.” And Mr. Justice Butler, in his introduction to the law relative to trials at nisi prius, also- places the right to 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. *631 and the courts of the province formed on the same principles. The proprietary government established what was, called the provincial court; in which it appears that, in imitation of what had been done in England, the lord proprietary, in an early period of the colony, sat in person. * This 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 *632 of king’s bench-having a superintending power.over inferior courts of jurisdiction, may, and of right ought to interfere to supply a remedy, when the ordinary'forms of proceeding are inadequate to the attainment of justice in matters of public concern. 3 Bac. Abr. 529, 530. The position that this Court is invested with similar powers, is generally admitted, and the decisions have invariably conformed-to it: from whence the inference is plainly deducible, that this court may, and of right ought for the sake of justice, to interpose in a summary way to supply a remedy, where, for the want of a specific one, there would otherwise be a failure of justice.” This case was decided in 1799, in the-general court; and it shows, most evidently, that 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 *633 jurisdiction which it derives from the adoption of the laws of Maryland, must. be measured..'by that., of the county courts of the state, which' the court for this district in every respect resembles. 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 *634 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. *635 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 *636 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 *637 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.

*638 But the principal effort on the part of the relators, in this branch of the argument, is to give. to this, third section such a construction as Will confer On- this circuit court a jurisdiction coextensive With 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 *639 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 *640 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 *641 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,

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 *642 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. *643 jurisdiction to the circuit court of this district,, so far as respects this’ question, is in these words: “ That said court shall have cognizance of all cases in law and equity, between parties, both or..either of which shall- be resident, or shall be found within the said district; and also of all actions or suits of a civil nature, at common law or in 'equity, in which the United States shall- be 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 num *644 ber 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' *645 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 *646 suits in law and equity,-has as much-.judicial power-by. those terms, ■as a. court has by the .terms, all' cases in' law: and. equity. The only difference between the two sections under consideration, in relation to the question . before us,-consists in‘■the two.limitations contained in. the 11th section of the judiciary act; the. one as to.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 *647 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, *648 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, *649 &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 *650 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 Su *651 preme 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 *652 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, *653 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.