AMOS KENDALL, POSTMASTER GENERAL OF THE UNITED STATES, PLAINTIFF IN ERROR

v.

THE UNITED STATES, ON THE RELATION OF WILLIAM B. STOKES ET AL.

Mr. Justice Thompson delivered the opinion of the Coürt:

This casé comes up on, a writ of error from the circuit court-of the United States for the, District Of Columbia, sitting for the county of Washington.-

..This case was brought before the court below by petition, setting out certain, contracts made between the relators and the late postmasteygeneral, upon which they claimed certain credits and allowances Upon their contracts for the transportation of the mail.. That credits and allowances were duly’made by the late postmaster general. That the present postmaster generé! when he came .into office, re-examined the contracts entered into with his predecessor,-and the-allowances made by him, and the credits and payments which had been made;-and-directed that the allowances and credits should be withdrawn, and the relators recharged with divers payments they had received. That the relators .presented a. memorial .to cong'ress oji the subject, upon which a law was -passed on the 2.1st of July, 1-836. for their' relief; by which the solicitor of the-treasury, was auth rwed and directed to settlé and adjust the claims of the relators for extra-services performed by .them; to inquire into1 and determine the equity of such claims; and to make the relators such allowance theréfor,. as-upon full examination .of all the evidence may seem right; according, to the .principles of equity». And that the .postmaster general'be; and he is hereby directed to credit the relators with whatever sum or sums of money; if any, the solicitor shall so. decide to be due to:them, for and. on account of any such service, or contract. And'the -petition further sets-out, that -the solicitor, Virgil Maxcy, .assumed upon, himself the performance of the duty and authority created and conferred upon him ,by the law; and did' make out and communicate his decision and award .to the postmaster general;-by which award and decision the relators were allowed one hundred and sixty-one thousand five hundred and sixty-three dollars and eighty-nine cents.--That the . postmaster-general, on being .notified of'the award, only so far obeyed and carried into execution the act oficon.gress, ag' to direct, and cause' to be carried to 'the-credit of. the relators, the sum-of on.e hundred and twenty-two thousand one-hundred' and two dollars and forty-six cents. But that he has,'and still does refuse and,neglect to credit-the relatprs with.the residue of the'sum so awárded:by the solicitor, amounting to thirty-nine thousand four hundred and sixty-two dollars and forty-three cents. And the petition prftyed the court, to award , a mandamus-directed, to the postmaster general; commanding him fully.to comply with, obey and execute the said act of congress,- by -crediti-ng the-relators with the full and entire sum awarded in their favour by .the solicitor -of the treasury.

Such proceedings were afterwards had in the case, that a peremptory mandamus was ordered commanding the said Amos. Eendall, postmaster general, forthwith to credit the relators with the full-' amount awarded and decided by the solicitor of the treasury to. be due to the relators.

The questiops arising upon this ease,' may be considered under two general inquiries:

1. Does the record present a proper case for. a mandamus;, and'if so, then,

2. Had' the circuit court -of this district -jurisdiction of the case, and authority to issue the. writ. ’

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

We-shall not, therefore, enter into any particular examination of the line to be drawn between: the powers'of the executive and-judicial departments of the government; The theory of the constitution undoubtedly is, that the • great powers of the government are divided into separate departments'; and so far as these powers. are' derived 'from the constitution,-the departments may be regarded as independent qf each other. Bdt-beyond that, all are subject to regulations by law, touching the discharge of the dutjefe required to be performed.

The-executive power is vested in a President; and as far as hi* powers are derived from the constitution, he is-beyond the reach of any other department; except in the mode pi’,escribed by the constitution through the impeaching power.- But it By no means-follows, that, every officer in every branch of that department is under-the exclusive direction of the President. Such a principle, we apprehend, is not, and certainly cahnot be claimed by the President.

There are. certain political duties imposed upon many officers in the executive department, the discharge of which is Under the di;rec-. tion. .of the President. But it would-, be an alarming doctrine, that congress cannot impose-upon any executive officer' any duty they may think proper, which is not, repugnant to any rights secured and protected by thé constitution; and in such cases,, the -duty and responsibility grow out of and are subject to the contról of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character. Let us proceed, then, to an examination of the -tct required by the mandamus to be performed by the postmaster general; and his obligation to perform, or his right' to resist the performance-,,must depend upon the act of congress of the 2d of July, 1836. This is a special act for the relief of the relators, Stockton & Stokes; and was passed, as appears ori its face, to. adjust arid settle certain claims which they had for extra' services, as contractors for carrying the mail. These-claims were, pf course, upon the Upjted States, through-the -postmaster general.. The real parties to the dispute were, therefore, the relators and the United States. The United States could not, of course, be suéd,. or the claims in any way enforced against the United States,-without'their consent obtained through an .act. of congress: by which they consented to submit these claims to the .solicitor of the treasury to inquire into and determine the equity of the claims, and to make such allowance- -therefor as upon a full examination óf all the evidence, should seem right, according to the principles of equity. And the act directs„the postmaster general to credit the relators with whatever sum, if any,- the. solicitor shall-decide to be due. to them, for or on account of any such service or contract.

The solicitor did examine and decide that there'was due to the relators, one hundred and-sixty-one thousand five hundred and sixty-three dollars and ninety-three cents; of this sum, the postmaster general credited -then! with' one hundred and .twenty-two; thousand one hundred and one dollars and forty-si-x cents: leaving due the sum of' thirty-nine thousand four hundred and seventy-two-dollars and forty-seven cents, which he refused to carry to their credit And the-clject of the mandamus was to.compel him to. give credit-for this balance.

Under this law the postmaster general is vested with no discretion or controTover the-decisions-of the solicitor; nor is any appeal or review of that decision provided for by the act. The -.terms of the-submission was a matter resting "entirely in the discretion. of congréss; and if they thought proper, to vest such a-power in any one, and especially as the arbitrator-was an Officer of the government, it did not rest with the' postmaster general to control congress, br the. solicitor, in that affair. It is-unnecessary to sgy bow far congress might have interfered, by legislation, after the report of the solicitor. But if there was no fraud, or misconduct in the-arbitrator, of which none is pretended, or suggested; it may well be .questioned whether the relators;had not acquired such a-vestéd right, as to be beyond the power of ..congress to deprive them of it. •

But so far from congress attempting to deprive the relators, of the benefit, of the award, they may be considered as -impliedly .sanctioning and approving-of the decisions-of the solicitor. ' It is at least, so to-be'considered by one branch of the legislature. After the postmaster general, had refused to credit the relators with the full amount of the award 'of the solicitor, they, under the advice of the President; presented a memorial to congress, setting out the report Of the solicitor, and the refusal' ,of the .'postmaster general to give them credit for the amount of the' award, and praying congress to provide such remedy for the denial of their-rights* as in their wisdom might seem right and proper. , -,

Upon this memorial, the judiciary, committee of the senate -made a report, ini-which 'they say, “ that congress intended the award of the .solicitor to be final, is-apparent from the direction'of the act that the-'postmaster general be, and he is hereby directed to credit such mail contractors with whatever sum the .solicitor shall decide to bé due tó them.” If congress had intended to revise the decision of the solicitor, the postmaster general would not have been directed to make the payment, without the intervention 'or further actiop of , congress! g That unless it appeared, which is'not suggested by any one,-that some cause exists'which would' vitiate or bet ¿side thV award between private parties before a "judicial tribunal, the committee cannot recommend the interference of congress-to set aside this award, .and more, especially, aá it .has been-made-by a high officer, selected by the government; and. the committee conclude their report with a resolution, “That the postmaster general is fully warranted -in. paying, and ought to pay to William B. Stokes and others, the full amount of the award of the solicitor of the treasury:” which resolution was unanimously adopted, by the senate.. After such "a decided expression of the opinion of one branch of congress, -it would not have been necessary to apply to the other. Even if the relators were bound 10 make any'application to congress for relief, which they clearly were not; their right to the full amount of the credit, according to the report of the solicitor, having been ascertained and fixed byr law, the enforcement of that right fall's properly within judicial cognizance.

It was urged at the bar, that the postmaster general was alone, subject to the direction and control of the'President, with respect to the-execution of the duty imposed upon him by this law; and this' right of the President is claimed, as growing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully executed. This is a doctririe that cannot receive the sanction of this court. It would be vesting in the President a dispensing power, which has no countenance for its support in any part of the constitution; and is asserting a principle, which,1 if carried out in its results, to all cases falling within it, would be clothing the President with a power entirely to control the legislation of. congress, and paralyze the administration of justice.

To contend, that the obligation imposed on the President to see the laws faithfully executed, implies a power to.forbid their execution, is a novel construction of the coñstitution, and entirely'inadmissible. But although the argument necessarily leads.'to such a result, we do not perceive from the case that any such power has been claimed by the President. But, on the contrary, it is fairly to be inferred that such power was disclaimed. He did nót forbid or advise the postmaster general to. abstain from executing the law, and giving the credit thereby required; but submitted the matter, in a message to congress. And the same judiciary, committee of the senate report thereupon, in which they say, “ The Pres-, unt, in his message, expresses no opinion in relation to the subject under consideration, nor does he recommend the adoption of'any measure whatever. He communicates the report of the postmaster general, the review of that report, by the solicitor of the treasury, and the remarks of the postmaster general in answer thereto, together with, such vouchers as are referred to by them respectively. That the committee have considered the documents communicated, and cannot discover any cause for changing their opinion upon. any. of the principles advanced in their former report upon this subject, nor the correctness of their application to this case; and recommend thé adoption of the resolution before reported.’?

Thus, upon a second and full consideration of the subject, after hearing and examining the objections of the postmaster general, to the award'of the solicitor, the committee report, that the postmaster general, ought to pay to the relators the amount of the award.'

The right of the relators to the benefit of the award ought now to be considered as irreversibly established; and the question is whether they have any, and what remedy ?

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

And in this view of thé case, the question arises, is the remedy by mandamus the.fit and appropriate ffemedy ?

The common law, as it was in force.in Maryland when,the cession was made, remained in force in this district. We must, therefore, consider .this writ, as it was understood at the common law with respect to its object and purpose, and varying only in the form, required by the-different character of oúr government.- It is-a writ, ip England, issuing out of the king’s bench, in the name of {he king, and is called a prerogative writ, but considered a writ of right;- and. is directed.'to some person,-corporation -.or inferior court, requiring them to do some particular thing, therein specified, which appertains to their office or duty, and which is supposed to be consonant id right and justice, and where the^e is no other adequate specific remedy. Such a writ, and; for such a purpose, would seein to be peculiarly. appropriate to the present ca-sei' The right claimed is just arid established by positive law; -and the duty required" to be performed is - clear and specific, and there is no other adequate remedy.

"The remedies suggested at the bar were, then, an application to congress; removal of. the postmaster general, from office; and an action against him for damages;

The first has been tried and failed. The second might not afford "any certain relief, for his successors might withhold the credit-in the same manner; and, besides, such extraordinary measures are not ihe remedies spoken of in the law which will supersede the right of resorting to a mandamus; and it is seldom that a private action at law will afford an adequate remedy. If the denial of the right be considered as a continuing injury, to be redressed by a series of successive actions, as long as the right is denied-; it would avail nothing, and never furnish a .complete remedy. Or if the whole amount of the award claimed should be considered the measure of damages, if might, and generally .would be an inadequate remedy, where the • damages were-large. The language-of this Court, in the case of Osborn v. United States Bank, 9 Wheat. 844, is, that the remedy by action in, such cases would have nothing real in it. It would-be a' rpmedydn name only, and not in-substance; especially where the, amount of damages is beyond the capacity of a party ‘to pay.

That the proc ceding on a mandamus is a case within the meaning of the act of congress, has been too often recognised in this Court to require any particular notice. It is an action of suit brought in a court of justice, asserting a right; and is prosecuted according to the forms of judicial proceedings.

- The next inquiry is, whether the court 'below .had-jurisdiction of the casé, and power-to issue the mandamus?

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

It beecrmes necessary, therefore, to examine with attention the ground on which those cases rested. And it is to be observed, that although the question came up under the names of .different parties, it related .to the same claim in-both: and, indeed, if Wás béforé the Court at ánother time, which is reported in 2 Wheat. 369.

The question, in the first' case, originated in the circuit court of the United States, in Ohio, and came to this Court on' a certificate of division of opinion. The second 'time, it was an original application to this-Court, for-the mandamus. The third time, the application was-to the state court, and was brought heré by writ of error, under the twenty-fifth section of the judiciary act.

By the first report of the case, in 7 Cranch, it, appears that the application to the circuit, court was for a mandamus to the register of a land office in Ohio, commanding him to issue a final certificate of purchase for certain lands in. that -state, and fhe court, in giving its-judgment, say: the power tif the circuit.' courts to issue the Writ of .mandamus, is confined exclusively to those .cases in which it may be necessary to the exercise of their jurisdiction. - But, it is added, if the eleventh section of the judiciary act had covered the whole ground of the constitution, there would be much ground for. exercising this power in many-cases wherein some ministerial act is necessary to the completion of an individual right, arising under the laws of the United-States; and then the fourteenth section of the. act iVould sanction the issuing of the writ'for such a purpose. But that although the'judicial power under the constitution extends to all cases arising under-the laws of-the United States, the legislature’have .not thought, proper to delegate that power to the circuit courts, except in certain specified eases. ,The decision, then, turned' exclu-. sively-upon the point, that congress had not delegated to the circuit courts all the judicial power that the constitution would authorize: and admitting what certainly' cannot be denied, that the] constitution is broad enough to warrant the vesting-of such power in the circuit courts; and.if in.those courts, it may be.vested in-any other inferior courts: for the judicial power, says the constitution, shall be vested in-one Supreme Court, and such inferior courts as the' congress may from time to' time ordain and establish.

It is not .designated by .the Court, in the pase of M‘Intire v. Wood, in what respect there is a want of delegation to-the circuit courts of the. power necessary to take’ cognizance -of' such a case, and issue the writ'. It is said, however, that the power is confined ro certain specified eases, among which is not to be found that of issuing a mandamus, in such a case as was then before the Court. It is unnecessary to enter into a particular examination -of the limitati-m upon the power embraced in this eleventh section of the .judiciary act. There is,-manifestly, some limitation’.. The' circuit courts’-have certainly1 not jurisdiction of all suits or cases of a civil nature at-common law, and in equity. They are not courts of general jurisdictior. in all such cases; and an averment is necessary, bringing the case within one of the’ specified classes.-, ,But the obvious inference from the case of M‘Intire v. Wood, is, that under the constitution, the power to issue a mandamus to. an executive officer, of the United. S.tates, may be vested in the inferior courts of the’United States; and'that it is the appropriate writ, and proper to be employed, agreeably to the principles and usages of law, to compel the performance of a ministerial act, necessary to the completion of an individual right arising under the laws of the United States. And the case now before the Court, is precisely one of that description. And if the .circuit court of this district has the power to issue it, all objection arising dither from the character of the party, as an officer in the executive department of the government, or from the nature of the-act commanded to'be done, must be abandoned.

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

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

It is, he says, not easy to conceive on what legal ground a state-tribunal can,iin any instance, exercise the power of issuing a mandamus to a register of a land office. The United'States have not thought proper to delegate that power to their own courts. But when in the ease of Marbury v. Madison, and M‘Intire v. Wood, this Court decided against the exercise of that'power, the idea never presented itself to any one, that it was not within the scope of the judicial power of the United States, although not vested by law in the courts of the general government. And no one will contend, that it was among the reserved powers of the states, because not communicated by law to the courts of the United States.

The result of these cases, then, clearly is, that the authority to issue the writ of mandamus to an' officer of the United States, commanding him to perform a specific act required by a law of the United States, is within the scope of the judicial powers of the United States, under the constitution. But that the whole of that power has not been communicated by law to' the circuit courts; or in other Words, that it was then a dormant power not yet called into action, and vested in those courts; and that there is nothing gro ving out of the official character of the party that will exempt him from this writ, if the act to be performed is purely ministerial.

• It must he admitted, under the doctrine of this Court in the cases referred, to, that unless the circuit court of this district is vested with broader powers and jurisdiction in this respect, than is vested in thé. circuit courts of'the United States in the several states, then the mandamus in the present case was issued without authority.

But in considering this question, it must be borne in mind that the only ground upon which the court placed its decision, was that the. constitutional judicial powers on this subject had not been imparted to those courts..

In the first place, the case of Wheelwright et al. v. The Columbia Insurance Co. 7 Wheat. 534, furnishes a very strong, if not conclusive inference that this-Court did not consider the circuit court of this district as standing on' the same footing with the circuit courts in the states; and impliedly admitting that it had power to issue a mandamus in a case analogous to the present. A mandamus in that case had been issued by the circuit court of this district, to compel the admission of the defendants in error to the offices of directors in the Columbian Insurance Company; and the case was brought before this Court by writ of error; and the Court decided that a writ of error would lie, and directed affidavits to be produced as to the value of the matter in controversy. But it not appearing that it amounted to one thousand dollars, the' sum required to give this Court appellate jurisdiction from the final judgments or decrees of the circuit court of this district, thé writ of error was afterwards quashed.

It would' seem to be a reasonable, if not a necessary conclusion, that the want of a sufficient value of thé matter in controversy, was the sole ground upon which-the Writ of error was quashed, or dismissed. If it1 had been on the ground that the court below had not jurisdiction in the case, it can hardly be believed that the Court would have directed affidavits to be produced of tne value of the matter in controversy. This would have been an act perfectly nugatory, and entirely unavailable, if the matter in controversy had been shown to be above the value of erne thousand dollars. If the want of-jurisdiction in the circuit court had been the ground on Which the writ of error was quashed, the same course would have been pursued as was done in the case of. Custis v. The Georgetown & Alexandria Turnpike Co. 6 Cranch, 233; where the writ of error was quashed on the ground that the court below had not cognizance of the matter. But -let us examine the act óf "congress of the-27th of February, 1801, concerning the District of Columbia, and by which the circuit court is organized, and its powers and jurisdiction pointed out. And it is proper, preliminarily, to remark, that under the constitution of the United States, and the cessions made by the states of Virginia and Maryland, the exercise of exclusive legislation in all cases whatsoever, is given to congress. And it is a sound principle, that in every well organized government the judicial power should be coextensive with the legislative, so far at least as private rights are to be'enforced by judicial proceedings. There is in this district, no division of powers between the general and state governments. Congress has the entire control over the district for every purpose of government; and it is reasonable.to suppose, that in organizing a judicial department heré, all judicial power necessary for the purposes of govérnment would be vested in the. courts of justice. The circuit court here is the highest court of original jurisdiction; and if thé power, to issue a mandamus in a case, like the present exists in any court, it is vested in that court.

Keeping this consideration in view, let us look at the act of congress.

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

These, and other cases where a mandamus has' been considered in England as a fit and appropriate remedy, are referred to by the general-court; and it is then added, that the position that this court is invested with similar powers, is generally admitted, and the decisions have inyariably conformed to it; from whence, say the court, the inference is plainly deducible, that-this court may, and of right ought, for the sake of.justice, to interpose in a summary way, to supply a remedy; where, for the want of a specific one, there would otherwise be a failure of justice.

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

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

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

Thus far the power of the circuit court to issue-the writ of mandamus, has been consideradas derived under the first section of the act of 27th of February, 1801. But the third and fifth sections'are to be taken into consideration, in deciding this question. The third section, so far as it relates to the present inquiry, declares: “That there ¿hall be a court in'this district, which shall.be called the. circuit court of the District of Columbia; and' the said court, and the judges thereof,'shall have all the powers by law vested in the circuit courts and the judges of the circuit courts of the United States.” And the fifth section declares': “That the said court'shall have cognizance of all cases, in law and equity, between parties, both Or either of which shall be resident or be found within the district.”

Some criticisms have been made at the bar, between, the use of thé terms power and cognizance, as employed in those,sections. It is riot perceived how such distinction, if any exists, cari affect the construction of this law. That there is a distinction, in some respects, cannot be. doubted; and; generally speaking, the word power is used in reference to the means employed in carrying jurisdiction into execution. But, it may well be doubted, whether any-marked distinction is observed and lcépt up in our laws, so as in any measure to affect the construction of those laws. Power must include jurisdiction, which is generally used in reference to the exercise of. that power-in courts of justice. But power, as used in the constituí tion, would seem to embrace both.

Thus, all legislative power shall be vested in congress. . The executive power shall be vested in a President. , The judicial power shall be vested in one Supreme Court, and in such inferior courts as congress shall, from time to time, ordain and establish: and this judicial .power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States; and treaties made; or which shall be made, under-their authority, &c. This power must certainly embrace jurisdiction, so far as that term is applicable to the exercise of legislative or executive power. And as relates to judicial power, the term jurisdiction is not used, until the distribution, of those powers,among the several courts, is pointed but and defined.

There is no such distinction in. the two sections of the law in the' use of the. terms power and jurisdiction,'as to make it necessary to consider them separately. If theré is any distinction, the two sections, when taken together,- embrace them both. The third gives the power, and the fifth gives the jurisdiction on the cases in vvhich that power is to be exercised. . By the fifth section, the court has cognizance qf all actions or suits of a civil nature, at common law or in equity, in which the-United States shall be plaintiffs or complainants; and also of all cases in law and equity between parties, both or either qf which shall,be resident or be .found within the district. This latter limitation can only affect the exercise of the jurisdiction, and cannot limit the subject matter thereof. No court can, in the ordinary administration of justice, in common law proceedings; exercise jurisdiction over a party unless he shall voluntarily appear, or is found within the jurisdiction of the court, so as to be served with process. Such process cannot reach the party beyond the territorial jurisdiction of the court. And besides, this is a personal, privilege which may be waived by appearance; and if advantage is to be taken of it, it must be by plea or some other mode at an early stage in the cause. No such objection appears to have been made to the jurisdiction of-the court in the present case. There* was no want of jurisdiction, then, as to the person; and as to the subject matter of jurisdiction, it extends, according to the language of the act of congress, to all cases-in law and equity. This, of course, means cases of judicial cognizance: That proceedings on an application to a court of justice for a'mandamus, are judicial proceedings, cannot admit of a doubt; and that this is a case in law is equally clear. It is'the pfosecution of a suit to enforce a right secured by a special act of congress, requiring of the postmaster general the performance of a precise, definite, and specific act, plainly enjoined by the law. It cannot be denied but-that congress had the power to command that act to be done; and the power to enforce the performance of the act must rest somewhere, or it will present a case which has often been s.aid to involve a monstrous absurdity in a well organized government, that there should be no remedy,-although a1 clear and undeniable right should be shown to exist. And if the remedy cannot be applied by the circuit court of this district; it exists nowhere. But, by the express terms of this act, the jurisdiction of this circuit court extends .to all cases in law, &c.. No more general language could have been used. An attempt at specification would have weakened the force and extent of the general words — all cases. Here, then¿ is the delegation, to this circuit court, of the whole judicial power in this district, and in the very language of the constitution; which declares that the judicial power shall extend to all cases in law and equity arising under-the laws of the United States, &c.; and supplies what was said by this Court in the cases of M‘Intire v. Wood, and in M‘Cluny v. Silliman, to be wanting, viz: That the whole judicial power had not been delegated to the circuit courts.in the states: and which is expressed in the strong language of the Court, that the idea never presented itself to any one that it was not within the scope of the judicial powers of the United States, although not vested by law in the courts of the general government.

And the power in the court below to exercise this jurisdiction, we think, results irresistibly from the third section of the act of the 27th of February, 1801, which declares that the said court, and the judges thereof, shall have all the powers by law vested in the circuit courts and. the judges of the circuit courts of the United -States. The question here is, what circuit .courts are> referred to. By the act of the 13th of February, 1801, the circuit'courts established under the judiciary act of 1789 were abolished; and no other circuit courts were in existence except those'established by the act of 13 th February, 1801. It was admitted by the attorney general, on the argument, that if the language of the law. had-been, all the powers now vested in the circuit courts, &c., reference would have been made to the act of the 13th Fébruáry, 1801, and the courts thereby .established. We think that would, not have varied the construction of. the act. The reference is to the powers by law vested in the circuit courts. The question necessarily árises, what law ? The question admits of no other answer, than that it must be some existing law, by which powers'ure vested, and not á law which had been repealed. And there was no other-law in force, vesting powers in circuit courts, except 'the law; of the 13th of February, 1801. And the repeal of this law, fifteen months afterwards, and after the' court in this district had'been organized and gone into operation, under -the act. of 27th of-February, 1801, could not, in any manner, affect that law, any further than was. provided by the repealing act. To what law. was the circuit court of this district to look for the powers vested in the circuit -courts 'of the United States, by which the court was .to' be governed, during the time the act off the 13th of .Fébruary was in force? Certainly to none other than that act;' And whethér the time was longer or shorter before that law was repealed, could make •no difference.

. It was not an uncommon course of legislation in the states, at an early day, to adopt, by reference, British statutes: and'this has been the course of legislation by congress in many instances where stat.e p'raetice and state process has been adopted. And such adoption hasi always be.en considered as referring to the law existing at the time-of adoption; and no subsequent legislation has ever-been supposed to affect it. And such must necessarily be the effect and’ operation of such adoption. No other rule -would furnish any certainty as to what was the law; and would Ipe adopting prospectively, all changes ' that might be-made in the law. And.this-has been the’li-ght in which .this Court has-viewed such• legislation. In the cas'e of Cathcart v. Robinson, 5 Peters, 280, the Court, in speaking of the adoption of certain English'statutes say: by .adopting them, they become our own as entirely-as if-they had been enacted by the legislature. We are then to construe this third section of the-act of 27th of February, 1801, as if the eleventh section of the act of 13th of February, 1801, had been incorporated at full length; and by this section it is declared, that the circuit courts shall have cognizance of all cases in law or equity, arising under-the constitution and-laws of the Unitéd States, and treaties made, or-which shall be made under their authority: which are the very -words of the constitution, and which is, of course, a delegation of the whole judicial power, in cases arising under the constitution and laws, &c.; which meets and supplies the precise want of delegation of power which prevented the exercise of jurisdiction in the cases of M‘Intire v. Wood, and M‘Cluny v. Silliman; and must, on the principles which'governed the decision of the Court in those cases, be sufficient; to vest the power in the circuit court o'f this district:

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

Mr. Chief Justice Taney:..

As this case'has attracted some share of the public attention, and a diversity of opinion exists on the bench ; it is proper that I shoiild state the grounds upon, which I dissent from the judgme'nt pronounced by the Court. There is no controversy about the facts; and as they have been already sufficiently stated', I need not repeat them.

Upon some of the points much argued at the bar, there is no differerice of opinion in the Court. Indeed, I can hardly understand how so many grave questions of constitutional power .have been introduced into the discussion of a case like this, and so earnestly déhated on both sides.. The office of-postmaster general is-not created-by the constitution; nor are its powers or duties marked out by that instrument: The office was created by act of congress; and wherever congress creates such an office-as that of postmaster general, by law,.it may unquestionably, by law, limit its powers, and regulate its proceedings; and may subject.it to any supervision or control, executive or-judicial, which the wisdom of the legislature may deem right. There can, therefore, be no question about the constitutional powers of the executive or judiciary, in this-case. The controversy depends simply upon the construction of an act-of congress. The circuit court for the District «of Columbia was organized by the act of February 27,1801, which defines its powers. and jurisdiction; and if. that law, by its true construction, confers upon the court the power it has in' this Instance exercised, then the judgment must be affirmed.

There is another point on which there is no difference of opinion in the Court. We all agree that by the act of July 2, 1836, it was the duty of the postmaster general to credit Stockton and Stokes with the amount awarded by the solicitor of the treasury;. that'no discretionary power in relation to the award, was given to the postmaster. general; and .that the duty enjoined upon him was merely ministerial. These principles being agreed on, it follows, that this was a proper casé for 'a mandamus; proyided congress have conferred on the circuit court for the District of Columbia; the prerogative, jurisdiction and powers exercised by the court/of king’s bench, in England; for Stockton and Stokes are entitled to have the credit enteréd in. the manner directed by the act of congress, and they have no other specific means' provided by law, for compelling the performance of this duty. In such a case, the court of king’s bench, in England, would undoubtedly issue the writ of mandamus to such an.officer, commanding .him to enter the credit.' Have congress conferred similar jurisdiction and powers' upon the circuit court for this dis-. trict? This is the only question in the case. The majority of my. brethren think-that this jurisdiction and power has been conferred^ and they have given-their reasons for their opinion.. I, with two.‘of my brethren, think otherwise; and with the utmost respect, for the opinion of the majority of this Court, I proceed.to show, the"grounds on which I dissent from-their judgment.

.It has been decided in this Court, that-the circuit courts -of ihe United States, out of this district, have not the ppwer to issue the writ of mandamus to an officer of the general government, commanding him to do a ministerial act. Thef question .has-been twice before the Supreme Court; and upon both occasions was fully argued and deliberately considered. The first case was .that of M‘Intyre v. Wood, 7 Cranch; 504, deéided in 181.3. It was again brought ,u.p in 1821, in the case of M‘Cluny v. Silliman, 6 Wheat. 598,- when the former decision was re-examined and affirmed. Ahd it is worthy of remark, that although the decision first mentioned was-made twenty-five years ago, yet congress have not -altered the law, or enlarged the jurisdiction.of the circuit courts in-this respect-; thereby showing, that it has not been deemed advisable by the legislature, to confer upon them the'jurisdiction over the officers of the general government, which is claimed by the circuit-court for this district.

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

But, let-us examine the sections which aré supposed to give this power to this circuit-court.

1st. It is said to be given by the first section. This section-declares, that the laws of Maryland, as they then existed* should be in, force in that part-of the district ceded by.Maryland; and the laws of.Virginia in that part of the district ceded by Virginia, By this section, the common law in civil and criminal cases, as-it existed in Maryland at the date of this, act-of congress, (February 27, 1801,) beeame the law of the district-on the Maryland side-of the Potomac; and it is argued, that this circuit court.being a court of general jurisdiction . in eases at common law, and the highest court of original jurisdiction in the district, the-right to issue the writ of mandamus is incident todts common law powers, as a'part of the laws of Maryland ;. and distinguishes it in this respect from the circuit courts for" the state’s.

The argument is founded in a-mistake as to the nature and character ofthe writ of mandamus as known to the English laiy; and as used and practised in Maryland at the date of the act of' congress in •question.

. The power to issue the writ of mandamus to an officer' of the government, commanding him to do a ministerial act, does not, by .the' common law of England, or by the laws of Maryland, as they existed at the time of the cession, belong to any court whose jurisdiction was limited to a particular section of country, and was not .coextensive with, the sovereignty which éstablished' the court. It jnay, without doubt,!be conferred on such courts by statute, as’was done in Maryland, in 1806, after the. cession of the district. • But] by the principles of the common law and the laws of Maryland, as they existed at the time of the cession;. no court had a right to issue the prerogative writ of mandamus, unless it was a court in which the judicial sovereignty was’ supposed to.reside-; and which exercised a general superintendence oyer the inferior tribunals and persons throughout the nation, or state.

In England this writ' can be issued by the king’s, bench only. It -cannot be issued by the court of common pleas, or any other court knowh to the English law,- except the court of king’s bench. And the peculiar, character and constitution of that court,, from’which it .derives this high power, are s'o well-known and familiar to every lawyer, that it is scarcely necessary to cite authorities ~op the subject. Its peculiar powers are clearly stated, in 3 Black.’ Com. 42, in the following words: “The jurisdiction of this court is very high and transeendant, It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progress below. • It superintends all civil corporations in the kingdom. It commands magistrates and others to do what their duty requires in every case,’ where there is no-other specific remedy. It protects the liberty of the subject by speedy ánd summary'interposition,” &c. It is f-om this “ high and transcendan*”'jurisdiction that the court of king’s, bench derives the power-to issue the writ of mandamus, as appears-from the same volume of Blackstone’s Cómmentaries, p. 110. “The writ of mandamus,” says the learned commentator, “ is in general a command issuing-in the king’s name .from the court'of king’s bench, and directed to any person, corporation or inferior-court of judicature, within, the king’s dominions] requiring them to do'some particular thing therein, specified, which, appertains to their office and duty, and which thb court of king’s'bench lias previously determined, or at least' supposes to be consonant to right and justice. It is a high prerogative writ of a most extensively remedial nature.” And Mr. Justice Butler, in his introduction to the law relative to trials at nisi prius, also-places the right to issué this writ upon the peculiar and high powers of the .court of king’s bench. In page 195, he says: “ The writ of mandamus' is a prerogative writ issuing out of .the court. of king’s bench, (as that court has a general superintendency over all inferior jurisdictions and persons;) and is the proper remedy to enforce obedience to acts of parliament, ánd to the king’s charter, and in such a case is demandable of right.’-’ Indeed, in all of the authorities it is uniformly called a “ prerogative writ,” in order to distinguish it from the ordinary process which belongs to courts of justice; and It was not originally considered as a judicial proceeding,' but was exercised as a prerogative power. In the case of Audley y. Jay, Pppham; 176, Doddridge, Justice, said: “ This court hath power not only injudicial things, but also in-some things which are extrajudicial. The maior and comminalty of Coventry displaced one 'of the aldermen and he was restored; and this-thing is peculiar to this court, and is-one of the flowers .of it.”

These peculiar powers were possessed by the' court of king’s bench; because, the king originally sat there in person, and aided in the adininistration of justice. According to the theory of the English constitution, the king is the fountain of justice, and where the laws did not afford a remedy and enable the individual to obtain-his right, by the regular forms of judicial proceedings, the' prerogative powers-of the sovereign were brought in aid of the ordinary judicial powers'of the court, and the mandamus .was issued in his name to enforce' the execution of the law. And although the king has long since ceased to sit there in person, yét the sovereign is still there in construction of. law so far as to' enable the court to exercise its prerogative powers in his name; and hence its powers to issue the writ of mandamus, the naturp of which Justice Doddridge so forcibly describes, by calling it extra-judicial, and one of the flowers of. the king’s bench. It is, therefore, evident, that by the principles of the common law, this power would not be incident to any court which did not possess the general superintending power of the court of king’s bench, in which the sovereignty might by éonstruction'-of law be supposed to sit; and to ex.ert there its prerogative powers in aid of the court, in order that a right might not be without a remedy.

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

When the revolution of 1776 took place, the same .system of jurisprudence was adopted; and the fifty-sixth article of the constitution of Maryland provided, “that three persons of integrity and sound judgment in the law, be appointed judges of the court now called the provincial-court, and that the same court be hereafter called and known by .the name of the general court.” No further description-of the jurisdiction and powers of the general court is given. It, therefore, in the new order of>things, was clothed with the same powers'and jurisdiction» that had belonged to the provincial court before .the revolution. In other words, the general court was, in the state of Maryland precisely what the court of king’s' bench was in England; Afterwards, and before the cession of the District of Columbia to the United States, county courts were established in Maryland corresponding in character with what are called circuit courts in most of the states. These courts possessed general jurisdiction, civiland criminal, in the respective counties, subject, however, to the superintending power of the general court; which exercised over them the same sort of jurisdiction-which the. court of king’s bench exercises'over inferior tribunals. This was the system of jurisprudence in Maryland, at the time when the act of congress adopted the laws ’of the state for the district; and. the power which the Maryland courts then -possessed, by virtue of those lawis, -in relation to the writ of mandamus, are set-forth iri the case of Runkle v. Winemiller, 4 Harris & M‘Henry, 449. Chief Justice Chase, in delivering the opinion of -thé court in that case, after describing the character-and principles of the writ of mandamus, says: — “The court of king’s bench-having a superintending power.over inferior courts of jurisdiction, may, and of right ought to interfere to supply a remedy, when the ordinary'forms of proceeding are inadequate to the attainment of justice in matters of public concern. 3 Bac. Abr. 529, 530. The position that this Court is invested with similar powers, is generally admitted, and the decisions have invariably conformed-to it: from whence the inference is plainly deducible, that this court may, and of right ought for the sake of justice, to interpose in a summary way to supply a remedy, where, for the want of a specific one, there would otherwise be a failure of justice.” This case was decided in 1799, in the-general court; and it shows, most evidently, that th'e power of issuing the writ of mandamus, was confined to that court, and was derived from its king’s bench powers of superintending inferior courts and jurisdictions in the execution of the law; and that this power was not possessed by any other court known to the laws of Maryland. And so well and clearly.was this understood to be the law of the state, that when the general court was afterwards abolished by aii alteration in the constitution, and county courtsi established as the highest courts of original jurisdiction, no one' supposed that the prerogative powers of the general court were incidental to their general jurisdiction over cases at common law; and a statute was passed in 1806, to confer this jurisdiction upon them. This act declares, “ that the county courts shall have, use, and exercise, in their respective counties, all' and singular the powers, autho-. rities, and jurisdictions which the general court, at the time of the abolition thereof, might or could have exercised in cases' of writs of mandamus.” The 'adoption of the laws, of Maryland, therefore, does not give to the circuit court for the District of Columbia,, the power to issue the writ of mandamus, as an', incident to its general jurisdiction over cases at common law. It has none of what Blackstone calls the “ high and transcendent” jurisdiction of the court of king’s bench in England, and of the general court in Maryland. It is not’superior to all the other courts of the United States of original jurisdiction throughout the Union; it is not authorized to superintend them, and “ keep them within the bounds of their authority;” it does'not “superintend all civil incorporations” established by the United.States; nor “ command magistrates,” and other officers of the United States in every quarter of the country, “to do what their duty requires in every case where there is no other specific remedy.” Its jurisdiction is confined to the narrow limits of the district; and the jurisdiction which it derives from the adoption of the laws of Maryland, must. be measured..'by that., of the county courts of the state, which' the court for this district in every respect resembles. Thesé courts had no power to issue the writ of mandamus at the time when the laws of-Maryland were adopted by congress; and when the county courts afterwards became, by the abolition of the.general court, the highest courts of original jurisdiction, still, by the laws of that state, they could not issue, this writ,- until the power to do so was conferred on them by statute. As this act of assémbly passed five years after congress assumed jurisdiction over the district, it forms no part of the laws .adopted by the act of congress. I cannot, therefore, see .any ground whatever for deriving the authority to issue this writ of mandamus from. the first section of the act of congress, adopting the laws of Maryland as they then existed.

2. But it is insisted, that if the power to issue the writs of mandamus is not incidentally granted to this circuit eburt by the first section of the act of February 27th, 1831, which adopts the laws of Maryland; yet it is directly and positively given by the fifth section, which declares that the court shall have cognizance of “ all cases in law and equity.” It is said that a case jiroper for a manda-, mus is-a case at law; and. that the words abovemeiitioned, therefore.,, authorize the. circuit court to take cognizance of it.

The cases of Wood v. M‘Intire, and M‘Cluny v. Silliman, herein-before mentioned, appear to me to be decisive against this proposition. These cases decided that the circuit courts out of this district', have not the power now in question. It is true, that the eleventh section of the act of 1789, ch. 2D, which prescribes the jurisdiction of the circuit courts out of this district, does not use the very same words that are used in the fifth section of the act now under consideration. The eleventh section of the act of 1789, declares that the circuit courts shall have'cognizance of “ all suits of a civil nature at conrmon law, or in equity,” &c. But these words, “all suits of a civil nature at cqmmon law,” mean the same thing as the words “all cases at law,” which-are used,in the act of February 27th, 1801; and Mr., Justice Story, in his Commentaries on the Constitution, Abr. 608, 609, in commenting on the meaning of the words, “ cases at law and equity,” as used in the constitution, says: — “A case, then,-, in the sense of this clause of the constitution, arises where some subject touching the constitution, laws, or treaties of the United States,' is submitted to the courts by a party who asserts his rights in the form prescribed by. law. ' In other words, a case, is a suit in-law or equity, instituted according; to theregular course of judicial proceedings; and when it involves any question arising Under the constitution, laws, or treaties of the United States, it is within the judicial power confided, to the Union.” Now, if a case at law means the Same thing ás a-suit at law, and the latter words do not give jurisdiction .to the circuit courts out .of this district to issue the writ of ijnandamus to an officer of the general government, how can words, which are admitted to mean the same thing, give the powér to the circuit court within this district?: How cari the cognizance of “ cases at law,” in the act of-congress before us, be.construed to confer this jurisdiction; when it has been settled by two decisions of .this Court, that words of the same meaning do not gi.v.e it to the other circuit courts? We cannot give this construction to the act of February 27th, 1801, without giving-a -judgment inconsistent with the deci-. sions of this Court in the tuzo cases abovementioned; and I cannot agree either to overrule these cases, or to give a judgment inconsist* entwith them. .

' But it is argued that if-.the 1st section of the . act of congress does-riot give' the circuit court this jurisdiction, and if the 5th section does not give it, yet it may be derived' from these two sections taken -together. The argument, I understand, is this: The general court of Maryland possessed the power to issue the writ of • mandamus in a case" of this description; and inaspiüeh, as. that court possessed this power, the cases which authorised'the parties to demand it, were “cases-at law,” by the laws of that' state; "and consequently, the jurisdiction -is conferred on the, circuit court in similar cases, by the adoption of the laws of -Maryland in the first section, arid the words in the. fifth;'whjch give, the circuit court cognizance of “cases at law.”

The fallacy of’this argument'consists in assuming that the general court of Maryland had jurisdiction to issue the writ of mandamus, because it was “a case at law.” whenever, the party, took the proper steps to show himself entitled to. it. The reverse of thjs proposition is the true one. A .“ case at law,” as I have already Shown, means, the same thing as a “suit;” and the-general court had authority to -issue the writ of mandamus, not because. the proceeding was a, case of suit at law; but because.no case or suit at lawwould afford a/remedy to’ the party, This is the basis upon: which rests the power, of the court of king’s bench in-England, and upon-which rested the power of the general court in Maryland before that court was abolished. These courts, by virtue of their prerogative powers; interposed “to supply a remedy in a summary way,” where' ho suit or action known to the law; would afford one to the party for the wronghe'had sustained. It is. not a suit in form or substance, and never has been, so. considered iti England or-in Maryland. For if it had been considered in Maryland as a suit at. law, Chief Justice Chase, in the case of Runkel v.Winemiller, hereinbefore referred to,, would hardly have, put his decision on the. prerogative powers of the general court in the manner hereinbefore stated. Since the statute of the 9th o.f Anne, authorizing .pleadings in proceedings.by. mandamus, it has been held that such a proceeding is in the .nature of an. action; 'and that' a writ of error will lie upon the judgment-of the court awarding a péremptory mandamus. But it never has been said in any book óf authority, that this prerogative process is ‘-‘an action, or “a suit,” or “a case” at law; and never suggested, that, any court, not clothed with the. prerogative'powers of the king’s bepch, could issue the process, according to the principles.of the common law, unless the'power to do so had been conferred by statute.

. ; 4; But it is said that if the jurisdiction exercised in this ease by the circuit court for the. District of Columbia, cannot be maintained upon any of the grounds hereinbefore examined, it may yet be supported on the 3d section of .the act, of February 27, 1801. This section, among other things,provides that this circuit “court and the judges thereof shall have all the powers by law vested in;the circuit courts, and the judges of the circuit courts of the United States.5’ And it is insisted that as the act of February 13, 1801, was at that time in force,- the powers of this circuit court are to be measured by that act, although it has since been repealed; that the circuit courts established by the act of February .13th, 1801, did possess the power in question, and consequently that the circuit court for this district now possesses it, and may lawfully exercise it.

. T-hére are two answers to this argument, either of which áre, in my judgment, sufficient.

In the first place, there are; no words in the act of February 27, •1801, which refer particularly to the powers given to the circuit Courts by the act of February 13, 1801, as the rule by which the powers of the circuit court for this district.are to be measured. The obvious meaning of the words above quoted is, that the powers of this circuit court shall be regulated by the existing powers of the circuit courts ás generally established, so that the powers of this circuit court would be enlarged or diminished, from time to time, as con-' gress might enlarge or diminish the powers of the circuit courts in its general system. And when the' law of February 13, 1801, was afterwards repealed, and the. act of 1789 re-enacted, the powers of this circuit court were regulated by the powers conferred on the circuit courts by the last mentioned law. It was the intention of congress to.establish uniformity in this respect; and they have used language which, in my opinion, makes that intention evident. The circuit couri for this district cannot, therefore, refer for its “powers” to .the act of February 13, 18.01, since that act has been repealed. ,

In the second place, if the powers of the circuit court for the District of Columbia are Still to be regulated by the law which was repealed as long ago ás 1802; yet it will make no difference in the-resqlt of the argument. Much has been said about the meaning of the words “powers” and “cognisance” as used in these acts of congress. These words .aré no doubt gei ¿rally used in reference to counts of justice, as meaning the same thing; and I have frequently so used them in expressing-mjConinion in this case.. But it is manifest that they are not so used in the acts of congress establishing the judicial -system of the United States; and that the word.powers is employed to denote the process, the means, the modes of proceeding, which the court’s are authorized to use in exercising their jurisdiction in the -cases specially enumerated in the law as committed to their “cognizance.” • Thus in the act of 1789, cli. 20, the 11th section specifical- . ly enumerates the cases, or subject-matter of which the circuit courts shall have “cognizance;” and subsequent sections under the name of “powers” describe the process, the means which the courts may employ in exercising tlfeir jurisdiction in the - cases specified.' For example,, section 14 gives .them the “power” to issue the writs “ neces1 sary fojr the exercise of their respectivé jurisdictions;” and names particularly some of the writs which they shall have the “power” to issue; section 15, gives them the “power” to compel parties to pro.düce their books, &c..; section 17, gives them the' “power” to .grant' new trials, to'-administer oaths, to punish contempts, and to establish rules of court. The same distinction between “powers” and jurisdiction or “cognizance” is preserved in the act of February. 13, 1801'.- The 10th section of this act gives the circuit courts. thereby established, all-.the “powers” before vested in the circuit courts of the United States, unless where otherwise provided by that law; and .the next following section, (the T 1th) enumerates, specifically the cases or controversies o(f which they shall have “cognizance.” And so also in the act of February 27,1801,:establishing the circuit court fot this district, the same distinction is continued; and the 3d section (the one now under consideration) gives'the court “all the powers by law vested in the circuit courts;” while the other circuit courts of the United States; and if, as has'been soletnnly.decided by this Court, that jurisdiction and those powers do not authorize the other circuit courts to issue the writ of mandamus, it would seem to follow, as an-inevitable'.consequence, that neither can. the circuit court of'this district issue that writ.

Finally, it. was argued, that if all the other sources of power fail- ' ed,.there is a sufficient one to be found' in .that section of the act .of 1801, establishing the circuit court of this district, by which it'-is enacted, that the laws of Maryland as they now exist, shall ;be, and-continue in force in that part of the district which was ceded by that .state to the United States, &c.' The-argument founded upon this section, is in substance this: The laws of'.Mary land, are de-. elarecjf to be in force in this part of the district; the common law of England constitutes a part of those laws; by the common law, in' such a case as this, a writ of mandamus would lie: therefore, the circuit court of this district can issue a mandamus in this case. This part of the argument proceeds upon the principle, that the adoption-of the common law, per se, authorizes the issuing of the writ. But, it must be remembered, that the adoption of the common law.here, cannot give any greater power, than the same common law would give to the courts of'Maryland, from which state it is adopted. Now, in M‘Cluny v. Silliman, it was decided, that a state court could not issue, a mandamus to an officer of the United States; consequently, it follows, that no court in .Maryland c’ould have issued the writ in this casé: and yet, the argument which I am now considering; seeks to maintain the position, that whilst it is conceded that a Máryland court, with the common law in full force there, could not have issued, this writ, the circuit court of this district has the authority to do so, by reason of the adoption of that very law which would not give ,the authority to do it there.

It does seem to me, that to state this proposition is to refute it. The' object of this provision appears, to me to have been, plainly this: That the citizens of that part of this district, which formerly belonged to Maryland, should, notwithstanding the cession, continue to enjoy the benefit of the same laws to which they had been accustomed ; and that, in the administration of justice in their courts, ther should be the same rules of decision: thus placing the citizens of this district substantially in the same situation in this respect, as the citizens 'of the several states; with this difference only; that, whilst inthq states there‘are federal add state courts, in the one or the other of which justice is administered, according to the character of the parties, and other ' circumstances; in this district, by its judicial organization, the same justice.which in the states-is administered by the two classes .of courts, is here-dispensed by the instrumentality of.one court, viz: the circuit court of this district. But that, as in the states, the . federal circuit court cannot issue the writ of mandamus, because the jurisdiction and powers giveri to them, by congress do not authorize, it; so. here, the circuit court of this district cannot issue it, by virtue of the jurisdiction and powers given •'to it by congress; (exclusively of the adoption of the laws1 of Maryland;) because, exclusively of those laws, its jurisdiction and powers, as I think I -have shown, are neither more nor less, in reference to this subject, than those of the other circuit courts of the United . States. And as in the states, the state courts cannot issue it, although the common law is in force there; so the circuit court of this district cannot issue it, although the common , law, by the adoption of the ..laws of Maryland, is in force here; it being, in my opinion, impossible to maintain the proposition, that the adoption of the common law .here, can impart a greater authority than, .it does to the courts of the very-state from which it ,was adopted!

. The result of that adoption, as it regards this question may, as it seems to pie, be summed up-in this . one conclusion:-. That, as in Maryland the common law is in full force which authorizes the writ of mandamus; and yet a Maryland court can only issue it to a Maryland officer, and not to an officer of the United' States; so here, the same common law, upon the same principles, would authorize the circuit court of this'district to issue the writ to an officer of the District of Columbia, the duties of whose office pertained to the local concerns of the district; but not to an officer of the United States.

Under every aspect in which I have viewéd the question, I feel'a thorough conviction, that the circuit court of this district had not power to issue the writ in question; and, consequently, I am of opinion that the judgment demanding a peremptory mandamus, should be reversed.

Mr. Justice Catron concurred in opinion with the Chief Justice, ¿nd Mr. Justice Barbour. *

I derive my knowledge of the fact that the Lord'Proprietary sat in person in the provincial court, from a manuscript work of much value, hy J. V. L. M'Mahon, es.quire; whose History of Maryland, from its first Colonization to the Revolution, is well kno-yvn to the public.