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Article 3, Section 2, Clause 1



Document 86

Ex parte Crane

5 Pet. 190 1831

Marshall, Ch. J., delivered the opinion of the court. . . . A doubt has been suggested, respecting the power of the court to issue this writ. The question was not discussed at the bar, but has been considered by the judges. It is proper that it should be settled, and the opinion of the court announced. We have determined, that the power exists. Without going extensively into this subject, we think it proper to state, briefly, the foundation of our opinion. In England, the writ of mandamus is defined to be 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 or duty, and which the court of king's bench has previously determined, or at least supposes, to be consonant to right and justice. Blackstone adds, "that it issues to the judges of any inferior court, commanding them to do justice, according to the powers of their office, whenever the same is delayed. For it is the peculiar business of the court of king's bench to superintend all other inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the crown or legislature have invested them; and this, not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice." 3 Bl. Com. 110.

It is, we think, apparent, that this definition, and this description of the purposes to which it is applicable by the court of king's bench, as supervising the conduct of all inferior tribunals, extends to the case of a refusal by an inferior court to sign a bill of exceptions, when it is an act which "appertains to their office and duty," and which the court of king's bench supposes "to be consonant to right and justice." Yet we do not find a case in which the writ has issued from that court. It has rarely issued from any court; but there are instances of its being sued out of the court of chancery, and its form is given in the register. It is a mandatory writ, commanding the judge to seal it, if the fact alleged be truly stated: "si ita est."

There is some difficulty in accounting for the fact, that no mandamus has ever issued from the court of king's bench, directing the justice of an inferior court to sign a bill of exceptions. As the court of chancery was the great officina brevium of the kingdom, and the language of the statute of Westm. II. was understood as requiring the king's writ to the justice, the application to that court for the writ might be supposed proper. In 1 Sch. & Lef. 75, the chancellor superseded a writ which had been issued by the cursitor, on application; declaring that it could be granted only by order of the court. He appears, however, to have entertained no doubt of his power to award the writ, on motion. Although the course seems to have been to apply to the chancellor, it has never been determined that a mandamus to sign a bill of exceptions may not be granted by the court of king's bench.

It is said by counsel, in argument, in Bridgman v. Holt, Show. P. C. 122, that by the statute of Westm. II., c. 31, in case the judge refuses, then a writ to command him, which is to issue out of chancery, quod apponat sigillum suum. The party grieved by denial, may have a writ upon the statute, commanding the same to be done, &c. "That the law is thus, seems plain, though no precedent can be shown for such a writ: it is only for this reason, because no judge did ever refuse to seal a bill of exceptious; and none was ever refused, because none was ever tendered like this, so artificial and groundless."

The judiciary act, § 13, enacts, that the supreme court shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding offices under the authority of the United States. A mandamus to an officer is held to be the exercise of original jurisdiction; but a mandamus to an inferior court of the United States, is in the nature of appellate jurisdiction. A bill of exceptions is a mode of placing the law of the case on a record, which is to be brought before this court by a writ of errror.

That a mandamus to sign a bill of exceptions is "warranted by the principles and usages of law," is, we think, satisfactorily proved by the fact, that it is given in England by statute; for the writ given by the statute of Westm. II., is so, in fact, and is so termed in the books. The judiciary act speaks of usages of law generally, not merely of common law. In England, it is awarded by the chancellor; but in the United States, it is conferred expressly on this court, which exercises both common law and chancery powers; is invested with appellate power, and exercises extensive control over all the courts of the United States. We cannot perceive a reason, why the single case of a refusal by an inferior court to sign a bill of exceptions, and thus to place the law of the case on the record, should be withdrawn from that general power to issue writs of mandamus to inferior courts, which is conferred by statute.

In New York, where a statute exists, similar to that of Westm. II., an application was made to the supreme court for a mandamus to an inferior court to amend a bill of exceptions, according to the truth of the case. The court treated the special writ given by the statute as a mandamus, and declared, that it was so considered in England; and added, that "though no instance appears of such a writ issuing out of the king's bench, where an inferior court refused to seal a bill of exceptions, there is no case denying to that court the power to award the writ." "It ought to be used, where the law has established no specific remedy, and where in justice and good government there ought to be one." "There is no reason why the awarding of this particular writ does not fall within the jurisdiction of this court, or why it should be exclusively confined to the court of chancery." In the opinion, then, of the very respectable court, which decided the motion made for a mandamus, in Sikes v. Ransom, 6 Johns. 279, the supreme court of New York possesses the power to issue this writ, in virtue of its general superintendence of inferior tribunals. The judiciary act confers the power expressly on this court. No other tribunal exists by which it can be exercised.

. . . . .

Baldwin, Justice. (Dissenting.)--The common-law definition of a mandamus, which is adopted in this court, is, "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 dominion, requiring them to do some particular thing therein specified, which appertains to their office or duty, and which the court of king's bench as previously determined, or, at least, supposes, to be consonant to right and justice." Marbury v. Madison, 1 Cranch 168.

As the first question which this motion presents is one of the jurisdiction and power of this court to grant the writ prayed for in this case, it will be following the rule established to consider it first (3 Cranch 172; 5 Ibid. 221; 10 Wheat. 20; 1 Cranch 91; 9 Wheat. 816), a rule which never ought to be disregarded, where a question of power arises. Though the question of jurisdiction may not be raised by counsel, it can never escape the attention of the court; for it is one which goes to the foundation of their authority to take judicial cognisance of the case; if they cannot, in the appropriate language of the law, hear and determine it, the cause is coram non judice, and every act done is a nullity. If I take this case into judicial consideration, this is an assumption of jurisdiction, that necessarily results from a decision whether this is or, is not a proper case for a mandamus, for the court to hear and determine the motion on its merits. Their refusal to grant the motion, is not on the ground that they have not power to consider it, but that, on consideration, they reject it. This is as much an exercise of jurisdiction, as to issue the writ; as, by examining the grounds of the motion, the court assume the power to decide on it, as the justice of the question may seem to require. In my opinion, no new question of jurisdiction ought to be acted on, without an inquiry into the power of this court to grant the motion, or to issue the process. The silent uncontested exercise of jurisdiction may induce the profession to claim it as a right founded on precedent, though the judgment of the court may never have been given on the question of power, or their attention have been drawn to it by the counsel. If, then, process should issue improvidently, and the court should find itself called upon, for the first time, to examine its jurisdiction and power to issue it, when obedience should be refused by the court to which it was directed, and the question, came before us on this return, "the court is unanimously of opinion, that the appellate power of the supreme court of the United States does not extend to this court, under a sound construction of the constitution of the United States; that the writ of mandamus in this case was improvidently issued, under the authority of the 25th section of the judiciary act of 1789; that the proceedings thereon in the supreme court were coram non judice in relation to this court, and that obedience to its mandate be declined by the court;" this court would find itself in a very unenviable predicament, if, on a careful revision of the constitution and laws, they should be compelled to sanction the open contempt of their process or decree, by an inferior court, to whom an order had been sent from this high tribunal, which it found itself forced to declare null and void. It is hard to say, which would be most fatal to its influence and authority, the example, or the consequences.

The judicial history of this court presents one instance of such a return, on its records, and another, in which the military force of a state was in actual array, in obedience to a law for opposing the execution of a mandate; and a very recent occurence might have furnished a third incident, had not a writ of error abated by the death of the party suing it out. The proceedings which have attended the assertion of the unquestionable jurisdiction of the court over cases which, after having been discussed and considered in all their bearings, have been solemnly decided, afford no uncertain indication of the results to be expected from the exercise of their power, without discussion or inquiry into its existence, and over subjects on which it may, on examination, be found incapable of acting.

When questions of jurisdiction arise, they must be settled by a reference to the constitution and acts of congress. All cases embraced within the judicial power of the government, are capable of being acted upon by the courts of the Union. Those on which the original jurisdiction of this court can be exercised are defined, and cannot be enlarged. 6 Wheat. 395, 396, 399. It has no inherent authority to assume it over any others, and congress are incapable of conferring it by law. 1 Cranch 173. Where the constitution has declared the jurisdiction shall be original, congress cannot give it in its appellate form, and vice versâ. Marbury v. Madison, 1 Cranch 174; 6 Wheat. 399; 9 Ibid. 820, 821. Though the courts of the United States are capable of exercising the whole judicial power, as conferred by the constitution; and though congress are bound to provide by law for its exercise, in all cases to which that judicial power extends; yet it has not been done, and much of it remains dormant for the want of legislation to enable the courts to exercise it, it having been repeatedly and uniformly decided by this court, that legislative provisions are indispensable to give effect to a power, to bring into action the constitutional jurisdiction of the supreme and inferior courts. 5 Cranch 500; 1 Wheat. 337; 6 Ibid. 375, 604; 9 Ibid. 819--21; 12 Ibid. 117--18.

These principles remain unquestioned. They have long been settled, as the judicial exposition of the constitution, on solemn argument and the gravest consideration; and they are binding on all courts and judges. I shall ever be found among the last to oppose my opinion, in opposition to the results of the deliberate judgment of the highest judicial tribunal, when thus formed. They bind my faith, even though the reasons assigned might not carry conviction to my understanding. We must respect the solemn decisions of our predecessors and associates, as we may wish that those who succeed us should respect ours; or the supreme law of the land, so far as depends on judicial interpretation, will change with the change of judges. There may be exceptions to this rule. When they do occur, my hope is, that my reasons for a departure will be found in the great principles of the government, which meet with general assent in their adoption, though the most able and upright may differ in their application. But in any cases which have arisen, or may arise, in which the jurisdiction and power of the court over the subject-matter of the parties is not questioned by counsel and deliberately considered by the judges, or should be unnoticed in the opinion of the court, I cannot acknowledge it as an authority, affording a rule for my decision, or a guide to my judgment. Such a decision ought neither to control my reason, or settled conviction of pre-existing rules and principles of law.

These remarks are deemed proper, as there are some cases in which writs of mandamus have been issued, under circumstances such as have been referred to, or refused on the merits; but "the question of jurisdiction was not moved, and still remains open," according to the rule laid down by this court in Durousseau v. United States, 6 Cranch 307, on a question whether a writ of error could issue from the supreme court to the district court of Orleans: and by the Chief Justice, in alluding to the case of the United States v. Simms, 1 Cranch 252, "no question was made in that case as to the jurisdiction; it passed sub silentio, and the court does not consider itself as bound by that case." 6 Cranch 172.

These are the principles on which I shall examine the question of jurisdiction. The first inquiry then will be, has this court, by law, the power to issue a mandamus to a circuit court to sign a bill of exceptions, under the 13th and 14th sections of the judiciary act, which have been relied on as authorizing it? So far as this act gives the power to issue a mandamus to executive officers, they have solemnly declared the law to be unconstitutional and void, and that the power does not exist. It being considered by the court to be an exercise of original jurisdiction, it remains to inquire, whether it can be issued to any courts appointed under the authority of the United States; and if so, in what cases?

This power is defined, in Marbury v. Madison, 1 Cranch 175, in these words: "to enable this court, then, to issue a mandamus, it must be shown to be an exercise of the appellate jurisdiction, or to be necessary to the exercise of appellate jurisdiction. It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause." In the United States v. Schooner Peggy, 1 Cranch 110, we are furnished with this as the judicial definition: "it is, in the general, true, that the province of an appellate court is only to inquire whether a judgment when rendered is erroneous or not. That case furnished an exception in these words: "but if subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation be denied." In McClung v. Silliman, they lay down the same rule: "the question before an appellate court is, was the judgment correct, not the ground on which the judgment professes to proceed." 6 Wheat. 603. Appellate jurisdiction being thus defined, its source can only be found in the constitution which confers it, both as to law and fact, with such exceptions and under such regulations as the congress shall make (1 U. S. Stat. 18), and the judiciary act which makes these exceptions and regulations. The 13th section provides, that the supreme court shall have appellate jurisdiction from the circuit courts, and the courts of the several states in the cases hereafter specially provided for. These are defined in the 22d section, as to the circuit courts, and in the 25th section, as to the state courts. (Ibid. 84, 85.)

This court, from its first organization until this time, have held that this enumeration of the cases in which it had appellate jurisdiction, was an exclusion of all others. 1 Cranch 174--6; 3 Ibid. 172; United States v. Moore, 6 Ibid. 313--14, 318; 7 Ibid. 32, 44, 287, 108, 110; 6 Wheat. 603; 9 Ibid. 820--21, 19; 12 Ibid. 131--33, 203. The general principle the court have acted on is this: "that they imply a legislative exception from its appellate constitutional power, in the legislative affirmative description of these powers." 6 Cranch 314. But if the appellate jurisidiction of this court is described in general terms, so as to comprehend the case, and there is no exception or regulation which would exclude it from its general provisions (as in Wilson v. Mason, 1 Cranch 91, which was a writ of error to the district court of Kentucky, on cross-caveats, for the same tract of land), or if it was the obvious intention of the legislature to give the power, and congress have not excepted it, as on the question which arose in the case of Durousseau (6 Cranch 312, 318), whether this court could issue a writ of error to the district court of Orleans, they declared it "to be the intent of the legislature to place those courts precisely on the footing of the court of Kentucky in every respect, and to subject their judgments in the same manner to the revision of the supreme court," and therefore, gave the law of 1804 (page 809) a liberal construction. S. P. Cohens v. Virginia, 6 Wheat. 400.

But where the law of 1803 authorized a writ of error from the circuit to the district court, and omitted to provide one from this court to the circuit court, it was held not to be within its appellate jurisdiction (United States v. Goodwin, 7 Cranch 108--10), though the law giving this jurisdiction to the supreme court authorized appeals to the supreme court from the circuit court, from all final decrees and judgments rendered, or to be rendered, in any circuit court, or any district court having circuit court jurisdiction, in any cases of equity, or admiralty or maritime jurisdiction, prize or no prize, where the sum in controversy exceeds $2000 (2 U. S. Stat. 244); and the 22d section of the judiciary act authorized it on judgments of the circuit in civil actions, in cases removed there by appeal from the district courts. This too was an action of debt, and the sum in controversy $15,000; but it being on a writ of error from the circuit court, and not an appeal, in the words of the 22d section, this court gave it its liberal construction, which had been settled in the case of Wiscart v. D'Auchy, cited by Judge Washington in delivering the opinion of this court in Goodwin's Case. "An appeal is a civil-law process, and removes the cause entirely, both as to law and fact, for a review and new trial; a writ of error is a common-law process, and removes nothing for a reexamination but the law." This statute observes this distinction. 7 Cranch 110--11; 3 Dall., 324.

These seem to me to be the only two cases in which the appellate jurisdiction of the supreme court can be exercised--appeals and writs of error. This corresponds with the definition given by the court itself, as to its own powers, and the strict construction which they have (with the two excepted cases) given to the 22d and 25th sections, which are in their terms confined to final judgments and decrees of circuit and state courts, and these are the only cases, where this court have ever exercised appellate jurisdiction. They have uniformly refused, where the judgment or decree was not final (3 Wheat. 434, 601; 6 Ibid. 603; 12 Ibid. 135), and it cannot well be contended, that a refusal of a circuit court to sign a bill of exceptions, is a final judgment or decree, or that it partakes in any degree of the character of either. The jurisdiction of circuit courts over causes removed from state courts, is considered as appellate. But the time, the process, and the manner must be subject to the absolute legislative control of congress. 12 Wheat. 349. The same may be said of the jurisdiction of this court over causes sent from the circuit court, on a certificate of division; but this is by a special provision of the law of 1802 (2 U. S. Stat. 139), which has been construed with the same strictness as the act of 1789. 6 Wheat. 547; 10 Ibid. 20; 12 Ibid. 132; 6 Ibid. 363, 368.

The writ of mandamus contains no order to remove a cause or any proceedings therein to the court issuing it, nor has it that effect. The cause remains in the court below, whether the writ be obeyed or not; the sole object being to compel them to act on the matter themselves, not to remove it for revision. That can only be done by writ of error or appeal. These considerations make it evident, that the issuing a mandamus is not only not an exercise of appellate jurisdiction, but wholly different in its nature, object and effect. It was so considered in this court, in the case of McIntire v. Wood, 7 Cranch 499, 500, in which it was decided, "that the power of the circuit court to issue the writ of mandamus is confined exclusively to those cases, in which it may be necessary to the exercise of their jurisdiction;" and that cannot be the exercise of appellate jurisdiction, which, in this case, and in Marbury v. Madison, the court consider as a case wholly distinct. A mandamus being a writ to compel the performance of a ministerial act by a judicial officer, is not, and cannot be a subject-matter for the cognisance of an appellate court, which acts only on the judicial acts, the judgments and the decrees of inferior courts. In the United States v. Lawrence, 3 Dall. 42, 45, 43, it was unanimously decided, that this court could not issue a mandamus to a district judge, acting in a judicial capacity; that they had no power to compel a judge to decide according to any judgment but his own. So, in 1 Cranch 171, where the head of a department acts in a case in which executive discretion is to be exercised, in which he is the mere organ of executive will, it is again repeated, that any application to control in any respect his conduct would be rejected, without hesitation. In McCluny v. Silliman (2 Wheat. 369), it was determined, that this court had not jurisdiction to issue this writ to the register of a land-office, where it had been refused by the highest court of the state in which it was located; and in the same case, in 6 Wheat. 598, it was distinctly decided, that the power existed neither in the circuit nor supreme court; and all the principles herein stated were re-affirmed and finally settled. If judicial authority is to be respected, it is useless to pursue this branch of the inquiry any further.

I think, then, that the issuing of a mandamus by this, or a circuit court, is not an exercise of appellate jurisdiction. There seems to be no judicial opinion in favor of the affirmative of the proposition, and the cases referred to have been decided on the true construction of the 13th section of the judiciary act, which declares, "that the supreme court shall have appellate jurisdiction from the circuit courts of the several states, in cases specially hereinafter provided for." This is a distinct clause, and does not include the power to issue a mandamus, as an act of appellate jurisdiction.

The next clause giving this power is, "and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and 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." This is an express declaration of congress, that the power of this court to issue a mandamus is not conferred as appellate jurisdiction, in the cases specially provided for in the subsequent part of the law, but only in cases warranted by legal principles and usages, not referring to the constitution and laws of congress, but, as will appear hereafter, to the principles and usages of courts of common law. For it cannot be the sound construction of this section, that the power to issue a mandamus, in a case not mentioned in the law, can be raised by implication, in a case not within the express power given in a subsequent clause of the same section.


The Founders' Constitution
Volume 4, Article 3, Section 2, Clause 1, Document 86
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