pulsory or restrictive process, operating in personam upon the state tribunals; and it was no doubt deemed discreet not to assert more authority constitutionally vested in the court than was necessary for the occasion. If the appellate jurisdiction

be founded, as it no doubt was in that case, on a solid basis, it would seem to carry with it, as of course, all the coercive power incident to every such jurisdiction, and requisite to support it.

* Another question which was largely discussed and pro- 322 foundly considered by the Supreme Court, was touching

its authority to issue a mandamus when not arising in a case under its appellate jurisdiction, and when not required in the exercise of its original jurisdiction. In the case of Marbury v. Madison, (a) the plaintiff had been nominated by the President, and, by and with the advice and consent of the Senate, had been appointed a justice of the peace for the District of Columbia, and the appointment had been made complete and absolute by the President's signature to the commission, and the commission had been made complete by affixing to it the seal of the United States. The Secretary of State, after all this, withheld the commission, and the withholding of it was adjudged to be a violation of a vested legal right, for which the plaintiff was entitled to a remedy by mandamus; and the only question was, whether the mandamus could constitutionally issue from the Supreme Court. (b) 1

(a) 1 Cranch, 137.

(b) In the case of Kendall v. The United States, 12 Peters, 524, it was decided that the Circuit Court for the District of Columbia had authority to issue and enforce obedience to a mandamus, requiring the performance of a mere ministerial act by the Postmaster-General, and which neither he nor the President had any authority to deny or control; for the Postmaster-General is not subject to the direction and control of the President, with respect to the execution of duties imposed upon him by law The President has no dispensing power over the law, nor will a mandamus lie to correct the erroneous judgment of an inferior court. It is not the process to review judicial errors of any kind. Ex parte Hoyt, 13 Peters, 279; Ex parte Whitney, 13 Peters, 404. This is a settled principle in English and American law. The King v. Justices of Monmouthshire, 7 Dowl. & Ryl. 334; Judges of Oneida v. The People, 18 Wendell, 79; The People v. Judges of Dutchess C. P., 20 Wendell, 658.

1 Mandamus. See, besides the cases cited in note (b), Ex parte De Groot, 6 Wall. 497. A ministerial duty, the performance of which may be enforced by mandamus or injunction, is one in respect to which

nothing is left to discretion. It is a simple, definite duty, arising under circumstances admitted or proved to exist, and imposed by law. Mississippi v. Johnson, 4 Wall. 475, 498, stated post, 323, n. 1. Such is not

The Judiciary Act, sec. 13, authorized the Supreme Court 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. There was no doubt that the act applied to the case, and gave the power, if the

law was constitutional; but the court was of opinion that the act, in this respect, was not warranted by the Constitution, because the issuing of a mandamus in this case would be an exercise of original jurisdiction not within the Constitution, and Congress had not power to give original jurisdiction to the Supreme Court in other cases than those described in the Constitution. It had not authority to give to the Supreme Court appellate jurisdiction, where the Constitution had declared that its jurisdiction should be original, nor original jurisdiction where the Constitution had declared it should be appellate. To enable the court to issue a mandamus, it must be shown to be an exercise, or necessary to an exercise, of appellate jurisdiction. * 323

*

The Supreme Court may accordingly issue a mandamus

to a circuit court of the United States, commanding it to sign a bill of exceptions, for this is an exercise of power warranted by the principles and usages of law. (a)

4. Its Original Jurisdiction where a State is a Party. - The Constitution gives to the Supreme Court original jurisdiction in those cases in which a state shall be a party; and in Fowler v. Lindsey, (b) the question arose, when a state was to be considered a party. The parties in that suit claimed title to lands under

(a) Ex parte Crane, 5 Peters, 190. In the case of Barry v. Mercein, [5 How. 103,] in the Supreme Court of the United States, at Washington, January, 1847, it was adjudged that a writ of error would not lie to the Supreme Court, upon the judgment of a Circuit Court, refusing to grant a writ of habeas corpus, in a case of a father claiming from the mother his infant daughter. The case did not come within the provision of the 22d section of the Judiciary Act of 1789. The case was not within the limits assigned by the act of Congress to the appellate jurisdiction of the Supreme Court. [Compare Ex parte Everts, 1 Bond, 197, with Bennett v. Ben

nett, Deady, 299.]
(b) 3 Dallas, 411.

1 A suit against the governor of a state in his official character is a suit against the state. Kentucky v. Dennison, Governor of Ohio, 24 How. 66. x1

Shortly after the close of the rebellion

x1 In Louisiana v. Jumel, 107 U. S. 711, the Supreme Court (Justices Field and Harlan dissenting) refused to maintain a suit in equity, and to issue a mandamus to compel the officers of the State of Louisiana to carry out a law of that state, previously passed, for levying an

a suit was brought in the Supreme Court purporting to be by the state of Texas, and sanctioned by the provisional governor of 1865, by the governor elected under the constitution of 1866, and by the gov

annual tax and appropriating the proceeds to the payment of the state debt, and providing that the act should establish a contract between the state and its creditors. The officers had been prohibited, by an amendment to the state constitution, from carrying out the

grants from different states. The plaintiff brought his ejectment in the Circuit Court of Connecticut, claiming title under a grant from that state, and under a claim that the lands lay within the jurisdiction of that state. The defendant claimed title under a grant from New York, and on the ground that the lands lay within the rightful as well as actual jurisdiction of New York. The court laid down this rule on the subject of the jurisdiction of the Supreme Court, on account of the interest that a state has in the controversy, that it must be a case in which a state is either nominally or substantially the party; and that it is not suf ficient that the state may be consequentially affected, as being bound to make retribution to her grantee upon the event of eviction. Though there may be a controversy relative to soil or jurisdiction between two states, yet if that controversy occurs in a suit between two individuals, to which neither of the states is a party upon the record, it is not a case within the original juris

ernor afterwards appointed by the commander of the district. It was held to be well brought, three judges dissenting on the ground that, as a political fact, Texas was not one of the United States. Texas v. White, 7 Wall. 700. Two other cases of interest, arising out of the war, may as well be stated here as elsewhere, though not strictly in place. In the first, the state of Mississippi sought to file a bill to enjoin Andrew Johnson, President of the United States, from carrying into effect the Reconstruction Acts, so called, which were alleged to be unconstitutional; but the court refused to allow it, on the ground

act.

It was contended, however, that this amendment was void, as impairing the obligation of the state contract. The court decided that the taking of the necessary steps to carry out the law passed was not a mere ministerial duty, and could not be enforced by mandamus; nor was any trust created by the act. Board of Liquidation v. McComb, 92 U. S. 531, arose under the same statute. The state board of liquidation were enjoined from admitting certain persons to the benefit of the statute. See further,

that they could not restrain or enforce the performance of his executive and political functions by the President. Mississippi v. Johnson, 4 Wall. 475; ante, 296, n. 1. In the second case, a bill by the state of Georgia to enjoin the Secretary of War, general of the army, and district commander from carrying out the same Reconstruction Acts (acts of Congress of March 2 and 23, 1867), on the ground that their doing so would destroy the corporate existence of the state, was dismissed, on motion, for want of jurisdiction. Georgia v. Stanton, 6 Wall. 50; ante, 322, n. 1.

for suits against officers as distinct from the government they represent, Davis v. Gray, 16 Wall. 203; United States v. Lee, 106 U. S. 196.

In State v. State (N. H. v. La., and N. Y. v. La.), 2 Supr. Ct. Rep. 176, it was held that one state could not acquire jurisdiction to sue another in the Supreme Court of the United States, by taking assignments of debts due from defendant state to citizens of plaintiff state for pur poses of collection merely.

diction of the Supreme Court, because the states may contest the right of soil in the Supreme Court at any time, notwithstanding a decision in the suit between the individuals. Nor will a decision as to the right of soil between individuals affect the right of the state as to * jurisdiction; and that jurisdiction * 324 may remain unimpaired, though the state may have parted with the right of soil. In such a case the Supreme Court would not allow an injunction, on a bill filed by the State of New York against the State of Connecticut, to stay proceedings in the ejectment suit between individuals, though a general claim of soil and jurisdiction was involved in the private suit, because the State of New York was not a party to the suit in the Circuit Court, nor interested in the decision. (a)

5. Its Appellate Jurisdiction regulated by Congress. The appellate jurisdiction of the Supreme Court exists only in those cases in which it is affirmatively given. In the case of Wiscart v. Dauchy, (b) the Supreme Court considered that its whole appellate jurisdiction depended upon the regulations of Congress, as that jurisdiction was given by the Constitution in a qualified manner. The Supreme Court was to have appellate jurisdiction, "with such exceptions and under such regulations as Congress should make;" and if Congress had not provided any rule to regulate the proceedings on appeal, the court could not exercise an appellate jurisdiction; and if a rule be provided, the court could not depart from it. In pursuance of this principle, the court decided, in Clarke v. Bazadone, (c) that a writ of error did not lie to that court from a court of the United States territory northwest of the Ohio, because the act of Congress had not authorized an appeal or writ of error from such a court. It was urged that the judicial power extended to all cases arising under the Constitution, and that where a Supreme Court had not original, it had appellate jurisdiction, with such exceptions and under such regulations as Congress should make; and that the appellate power was derived from the Constitution, and must be full and complete, in all cases appertaining to the federal judiciary where Congress had not by law interfered * 325

(a) New York v. Connecticut, 4 Dallas, 3. In the case of Rhode Island v. Massachusetts, 12 Peters, 657, it was decided, after a very elaborate discussion, that the Supreme Court had jurisdiction to ascertain and establish boundaries between two states, and to restore and confirm rights of sovereignty and jurisdiction.

(b) 3 Dallas, 321.

(c) 1 Cranch, 212.