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made by him, and the credits and payments which had been made;-and-directed that the allowances and credits should be withdrawn, and the relators recharged with divers payments they had received.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