Kendall v. United States, 37 U.S. 524 (1838)

Mr. Justice THOMPSON delivered the opinion of the Court:

This case 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 Postmaster General 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 General when he came into office, reexamined 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made by him, and the credits and payments which had been made, and directed that the allowances and credits should be withdrawn, and the relators recharged with divers payments they had received.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 Congress on the subject, upon which a law was passed on the 21st of July, 1836, for their relief, by which the Solicitor of the Treasury was authorized and directed to settle and adjust the claims of the relators for extra-services performed by them, to inquire into and determine the equity of such claims, and to make the relators such allowance therefor, 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 of Congress as to direct and cause to be carried to the credit of the relators the sum of one 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 relators with the residue of the sum so awarded by the Solicitor, amounting to thirty-nine thousand four hundred and sixty-two dollars and forty-three cents. And the petition prayed 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 crediting 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 Kendall, 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 questions arising upon this case 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 official duty. And the proceeding has been treated as an infringement upon the executive department of the government, which has led to a very extended range of argument on the independence and duties of that department, but which, according to the view taken by the Court of the case, is entirely misapplied. We do not think the proceedings in this case interferes in any respect whatever with the rights or duties of the executive, or that it involves any conflict of powers between the executive and judicial departments of the government. The mandamus does not seek to direct or control the Postmaster General in the discharge of any official duty partaking in any respect of an executive character, but to enforce the performance of a mere ministerial act, which neither he nor the President had any authority to deny or control.

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 of each other. But beyond that, all are subject to regulations by law touching the discharge of the duties required to be performed.

The executive power is vested in a President, and, as far as his powers are derived from the Constitution, he is beyond the reach of any other department except in the mode prescribed 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 cannot 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 direction 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 the Constitution, and, in such cases, the duty and responsibility grow out of and are subject to the control 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 act 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 on its face, to adjust and settle certain claims which they had for extra services as contractors for carrying the mail. These claims were, of course, upon the United 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 sued, 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 of 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 them with one hundred and twenty-two thousand one hundred and one dollars and forty-six cents, leaving due the sum of thirty-nine thousand for hundred and seventy-two dollars and forty-seven cents, which he refused to carry to their credit. And the object 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 control over 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 Congress, and if they thought proper to vest such a power in anyone, and especially as the arbitrator was an officer of the government, it did not rest with the Postmaster General to control Congress or the Solicitor in that affair. It is unnecessary to say how far Congress might have interfered, by legislation, after the report of the Solicitor. But if there was no fraud or misconduct in the arbitrator, of which none is pretended or suggested, it may well be questioned whether the relators had not acquired such a vested 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 in 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 be due to 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 action of Congress. That unless it appeared, which is not suggested by anyone, that some cause exists which would vitiate or set aside the award between private parties before a judicial tribunal, the committee cannot recommended the interference of Congress to set aside this award, and more especially as 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 to 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 by law, the enforcement of that right falls 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 doctrine 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, 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 Constitution, 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 not 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 President 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 the 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 provision, 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 was simply required to give the 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 the case, the question arises, is the remedy by mandamus the fit and appropriate remedy?

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 our government. It is a writ, in England, issuing out of the King’s Bench, in the name of the King, and is called a prerogative writ, but considered a writ of right, and is directed to some person, corporation or inferior court, requiring them to do some particular thing, therein specified, which appertains to their office or duty and which is supposed to be consonant to right and justice, and where there is no other adequate specific remedy. Such a writ, and for such a purpose, would seem to be peculiarly appropriate to the present case. The right claimed is just and 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 the 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, it 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 remedy in name only, and not in substance, especially where the amount of damages is beyond the capacity of a party to pay.

That the proceeding 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 or 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 case, 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 of 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 a mandamus in the present case.

It becomes 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, it was before the Court at another 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 here 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 the court, in giving its judgment, says: the power of 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 would 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 cases. The decision, then, turned exclusively 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 case 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 to certain specified cases, 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 limitation upon the power embraced in this eleventh section of the Judiciary Act. There is manifestly some limitation. The Circuit Courts have certainly not jurisdiction of all suits or cases of a civil nature at common law and in equity. They are not courts of general jurisdiction 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 States 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 either 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 a 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 case 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 an 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 account 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 did not turn upon that point, but that both the argument of counsel and the decision of the Court show that the power to issue the mandamus in that case was contended for as incident to the judicial power 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 in 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 powers 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 under the provisions of the eleventh section.

It is, he says, not easy to conceive on what legal ground a State tribunal can, in 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 cases of Marbury v. Madison and M’Intire v. Wood, this Court decided against the exercise of that power, the idea never presented itself to anyone 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 growing 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 be 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 the 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, the 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 the matter in controversy was the sole ground upon which the writ of error was quashed or dismissed. If it 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 the 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 one 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 of 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 here, all judicial power necessary for the purposes of government would be vested in the courts of justice. The Circuit Court here is the highest court of original jurisdiction, and if the 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 and 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 course 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 said 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 King being the fountain of justice, it is interposed by his authority transferred to the court of King’s Bench to 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. It is a writ of right, and lies where there is a right to execute an office, perform a service, 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 invariably 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 crown, and is therefore confided only to the King’s Bench, where 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, cannot 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 to proceed to a final judgment or 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 to the Circuit Court. But this power is not exercised, as in England, by the King’s Bench, as having a general supervising power over inferior courts, but only for the purpose of bringing the case to a final judgment or decree, so that it may be reviewed. The mandamus does not direct the inferior court how to proceed, but only that it must proceed, according to its own judgment, to a 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 considered as 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 shall 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 the terms power and cognizance, as employed in those sections. It is not perceived how such distinction, if any exists, can 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 kept 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 Constitution, 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 out 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 there 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 which that power is to be exercised. By the fifth section, the court has cognizance of all actions or suits of a civil nature, at common law or in equity, in which the United States shall be plaintiffs or complainants, and also of all cases in law and equity between parties, both or either of 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 prosecution 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 said to involve a monstrous absurdity in a well organized government, that there should be no remedy, although a 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 anyone 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 13th 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 February, 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 arises, what law? The question admits of no other answer than that it must be some existing law by which powers are vested, and not a 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 of the 13th of February was in force? Certainly to none other than that Act. And whether 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 State practice and State process has been adopted. And such adoption has always been considered as referring to the law existing at the time of adoption, and no subsequent legislation has ever been supposed to affect it. And such must necessarily be the effect and operation of such adoption. No other rule would furnish any certainty as to what was the law, and would be adopting prospectively, all changes that might be made in the law. And this has been the light in which this Court has viewed such legislation. In the case of Cathcart v. Robinson, 5 Peters 280, the Court, in speaking of the adoption of certain English statutes said, 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 United 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 of this District.

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

* 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, by J. V. L. M’Mahon, Esquire, whose History of Maryland, from its first Colonization to the Revolution, is well known to the public.