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logies therefore with the four courts of England having general and superior jurisdiction, must be very weak, and still weaker their claim to the pre-eminent distinction of the king's bench, which pos sesses solely the exclusive authority of issuing the mandamus.

For these reasons I am induced to believe from the best consideration I have been enabled to give the subject, that the circuit court of South-Carolina had not authority to issue a mandamus to the collector of the port of Charleston.

It is scarcely necessary to remark, that when a court has no jurisdiction, even consent will not give it, and much less will the mere tacit acquiescence of a party in not denying their authority.

Independent of this serious and conclusive objection to the proceedings adopted by the court, there are others entitled to consideration. For supposing the court did not err in the exercise of jurisdiction, and admitting the British doctrines on the subject, without restriction or limitation could be extended to this country, there are legal exceptions to the course they have pursued, supported by the English authority.

It results from this view of the subject, that the mandamus issued by the circuit court for the district of S. Carolina, was not warranted by any power vested in the circuit court by statute: nor by any power necessarily incident to courts, nor countenanced by any analogy between the circuit court and the court of king's bench, the only court in that country possessing the power of issuing such writs. And it further appears that even the court of king's bench for the reasons assigned, would not, agreeably to their prac tice and principles, have interfered in the present case by manda

mus.

It might perhaps with propriety be added, that there does not appear in the constitution of the United States, any thing which favours an indefinite extension of the jurisdiction of courts, over the ministerial officers within the executive department. On the contrary, the careful discrimination which is marked between the several departments, should dictate great circumspection to each in the exercise of powers having any relation to the other.

The courts are indubitably the source of legal redress for wrongs committed by ministerial officers, none of whom are above the law. This redress is to be administered by due and legal process in the ordinary way. For there appears to be a material and obvious distinction, between a course of proceeding, which redresses a wrong committed by an executive officer, and an interposition by a mandatory writ taking the executive authority out of the

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hands of the president, and prescribing the course which he and the agents of any department must pursue. In one case the exccutive is left free to act in his proper sphere, but is held to strict responsibility; in the other all responsibility is taken away, and he acts agreeably to judicial mandate. Writs of this kind if made applicable to officers indiscriminately, and acts purely ministerial and executive in their nature, would necessarily have the effect of transferring the powers vested in one department to another department. If in a case like the present, where the law vests a duty and a discretion in an executive officer, a court cannot only administer redress against the misuse of the authority, but can previously direct the use to be made of it, it would seem that under the name of a judicial power, an executive function is necessarily assumed, and that part of the constitution perhaps defeated, which makes it the duty of the president to take care, that the laws be faithfully executed. I do not see any clear limitation to this doctrine, which would prevent the courts from compelling by mandamus all the executive officers, all subordinate to the president at least, whenever charged with legal duties in the treasury or other department, to execute the same according to the opinion of the judiciary and contrary to that of the executive. And it is evident that the confusion arising, will be greatly increased by the exercise of such a power by a number of separate courts of local jurisdiction, whose proceedings would have complete and final effect, without an opportunity of control by the supreme court. So many branches of the judiciary, acting within their respective districts, their courses might be different, and different modes of action might be prescribed for the citizens of the different states, instead of that unity of administration which the constitution meant to secure, by placing the executive power for them all in the same head.

What too becomes of the responsibility of the executive to the court of impeachment, and to the nation? Is he to remain responsible for acts done by command of another department? Or is the nation to lose the security of that responsibility altogether? From these and other considerations, were this branch of the subject to be pursued, it might be inferred that the constitution of the United States, by the distribution of powers of our government to different departments ascribing the executive duties to one, and the judiciary to another, controls any principles of the English law, which would authorize either to enter into the department of the

other to annul the powers of that other, and to assume the direction of its operations to itself.

These remarks are respectfully submitted to your consideration. They are to be made with due deference to the opinion of the court, with one of the judges constituting which, I am personally acquainted, and for whose character I feel the sincerest regard.

Yours, very respectfully.

(Signed)

C. A. RODNEY.

July 15, 1808.

M'Ilvaine v. Coxe's lessee. 2 Cranch. 280.

It still sticks in my mind that it may be thought presumption and impertinence, to undertake to examine any decision of the supreme court of the United States. But it ought to be considered that the decision of the highest court; and even of the highest, in continuance, and by the repeated decisions of different judges, are but evidence of what is law. And this evidence, is strengthened by the unanimity of judges on the same bench; and by a series of decisions taking place to the same effect. It still further strengthens this evidence, that there has been an acquiescence, by the bar, and by the public. The sense of the profession goes always a great way; and deservedly, in fixing what is law, or otherwise, upon a particular point for frequently, if not usually, there are greater men at the bar, than on the bench; and the judges themselves will always pay regard to the sentiments of the servientes ad legem, or the barristers of learning and ability. But what is more, great respect is due also to general sense and public opinion. In proportion to the general sense of the community, is the evidence of a decision, weakened, or strengthened.

The sense of a community is evinced, more especially by the disquisitions of the learned on the subject. What was originally wrong, unless great inconvenience was to be the consequence, ought not to prevail. The general sense of the

mass of the people ought to have weight in shaking a decision. I will not apply to this the maxim, quod initio non valet, tractu temporis, non convalescit; but this I will say, convalescere non debuisset.

Has there ever been a single voice heard, in these states, but that of reprobation, of the decision of Chief Justice Ellsworth, in the case of Isaac Williams, February 27th, 1797? that the nemo exuere ligeantiam, existed a principle of our common law; and was carried by the emigrants to these colonies from England? If we examine the substratum of the principle, it will be seen to fail, as, applicable to our situation. But I will not undertake to examine that, in the present case; at least at the present stage of my observations. It is sufficient to illustrate my position; viz. that an acquiescence in a decision adds weight to it; and I speak of the acquiescence of the public mind, as well as of the individual opinions of elementary writers, or essayists of every description.*

The present case of M'Ilvaine and Coxe lay in a narrower compass; or at least was determined on a principle short of the general one, of the nemo exuere ligeantiam. For this principle did not apply to a revolutionary case, where it cannot but be admitted, that each of the community has a right to chuse his side. The question was, whether by remaining some time in the state of Jersey after the declaration of independence, Goxe had not chosen his side and elected to become a subject of the new government. I will admit, for the present, that by remaining one moment after the declaration of independence, longer, than was absolutely necessary to get out of it; he became a citizen of the new commonwealth, and owed allegiance; this I admit for the present, and in order to exclude all difficulty on the ground of qualified allegiance.

In affirmance of this inference of law, that by remaining in Jersey after the declaration of indepedennce, he became a citizen; the act of 4th October, 1776, declares," that all persons there abiding, not only owe allegiance, but are mem

For this reason it may be excusable, if not justifiable, and a duty, where any of a community dissents from a decision, to come forward and express it.

bers of the then government." Doubtless Coxe leaving the state afterthis, and joining the British, might, in strictness, and according to abstract rigid law, be considered as having been guilty of high treason; and if found within that commonwealth, proceeded criminally against for such offence. If holden a subject, his descendant could inherit what had not been confiscated; or taken away by the commonwealth. Qui sentit commodum, sentire debet et onus ; and to reverse the maxim, qui sentit onus, sentire debet et commodum. Why should he be amenable as a citizen, to suffer loss of property, or life, and not be considered as entitled to the benefit of inheritance, to his posterity? Agreed therefore, "that it would have been competent for that state to allege allienage in Coxe. That a treaty of peace intervened which is a supreme law, it is insisted, says judge Cushing, 4 Cranch, 114, "that the treaty of peace operating upon his condition at that time, or afterwards, he became an alien to the state of NewJersey, in consequence of his election then made to become a subject of the king, and his subsequent conduct confirming that election." "In vain," continues that judge delivering the opinion of the court, "have we searched that instrument for some clause or expression, which by any implication could work this effect."

I take it to result, by necessary implication, and legal inference from this clause of the treaty, art. vi. "There shall be no future confiscations made, nor any prosecutions commenced against any person, or persons, for, or by reason of the part which he or they may have taken in the present war." This cannot but be considered as a repeal of the Jersey law; and in that case no impediment was in the way of a British adherent during the war, to return to his state, if he should chuse to elect to be considered a citizen. I consider him placed in the situation precisely, with that of having chosen his side, and quitted the state before the commencement of the In that case a new government being formed he was excluded, and could not become a citizen, without some act on his part revesting himself of that privilege. I will agree that he might be allowed a reasonable time, say his whole life. to come in. But never having come in, citizenship did not

war.

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