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party to impeachment, as for a high misde-
meanor. If such be the character of the act,
it is in vain to contend that it can be valid.
3. Is the remedy by mandamus the appro-
priate legal remedy?

2. Because, if he is entitled to it, a mandamus commanding the judges of the district and circuit courts of Louisiana to restore him to it, is not the proper mode of ascertaining his right.

3. Because, if he is entitled to it, and if a mandamus is a proper remedy; yet this court, under the limitation of its powers by the Constitution and laws, has no authority to issue that writ in such a case and for such a purpose.

I. The office of clerk of a district court of the United States is a public office created by law for a public benefit; its duties are defined by law, and the mode in which the incumbent is to be appointed is expressly designated by law. It does not depend on usage or custom. The Constitution requires (art. 2, sec. 2) the mode of appointment to inferior officers to be designated by law.

In White's case, 6 Mod. 18, an application was made for a mandamus to restore the party to the place of clerk of the company of butchers, and the case of an attorney of an inferior court was cited, in which the mandamus had been issued, but Holt, Chief Justice, said that case differs. 1. Office of attorney concerns the public, for it is for administration of justice. 2. He has no other remedy. The case thus recognized bears a strong and complete analogy to that at bar. The office of clerk nearly concerns the administration of justice, and the party has no other remedy. If any writ of quo warranto would lie in Louisiana, it must be brought in the same court before the same judge who has committed the wrong in By the third section of the Act of the 24th the original case. An assize is equally out of September, 1789, 1 Story's Laws, 54, there is the question, and is not only obsolete in Eng- to be a district court of the United States in land, but utterly impracticable here. Man- each district, the judge of which is to be called damus was awarded to restore one to the office the district judge. By the seventh section of of steward of a Court Leet, but from which he the same law (1 Story's Laws, 56), the district had been displaced for his affection to the courts are to appoint clerks for their respective king. T. Ray. 18. On motion for a man-courts; the clerk for each district court is to be damus to restore an attorney, the court was at clerk of the Circuit Court in the same [*244 first equally divided, (T. Ray. 57); but it was district; and the clerk is to take oath and give subsequently allowed. Ibid. 94. In Dighton's bond before he enters on his office. By the case, T. Ray. 188; 1 Vent. 77, a mandamus eighth section of the Act of 26th March, 1804, 243*] was prayed to restore a town clerk, 2 Story's Laws, 936, a district court was esbut refused, because by the terms of the char-tablished in the territory of Orleans, to conter, the town possesses the absolute power of sist of one judge, "who shall appoint a clerk." turning him out. This, however, was thought By the third section of the Act of 8th April, so monstrous a grievance that the court advised 1812, 2 Story's Laws, 1225, the State of Louito have the patent repealed. In Dew v. The siana was formed into a district, and a district Judges of the Sweetspring District Court, 3 court established there, the judge of which Hen. & Mun. 1, mandamus was held, after full "shall appoint a clerk." By the Act of 3d argument, to be the appropriate remedy to re- March, 1823, 3 Story's Laws, 1920, Louisiana store a clerk who had been superseded by an was divided into an eastern and western disirregular appointment. In 3 Devereaux the trict, with a district court for each; though the same point was solemnly adjudged. same person was to be judge of both. By the Act of 3d March, 1837, 4 Story's Laws,-, the eastern district of Louisiana is made part of the Ninth Circuit; and it is provided that "the Circuit Court, and the judges thereof, and the District Court, and the judges thereof, are to have like powers as in other circuits and districts."

If the remedy be appropriate, this is the only tribunal by which it can be awarded. By the provisions of the Judicial Act, the clerk of the District Court becomes the clerk of the Circuit Court. The record shows that the associate judge of this court who presides in the Louisiana Circuit Court, refused to recognize the validity of the act of the district judge, or to receive the clerk whom he had attempted to appoint. In consequence of the disagreement of the two judges, there is no clerk. No business is or has been transacted in the Circuit Court; the government and individual suitors are unable to proceed in their causes; no case can be brought up to this tribunal, and the whole appellate jurisdiction of this court is suspended during this extraordinary state of affairs. Unless this court interpose, such a state of things must remain; a mandamus is prayed to both courts, and we considered each as a necessary exercise of the appellate power of this tribunal, and in accordance with the former practice of this court. Ex-parte Burr, 9 Wheat. 529; Ex-parte Crane, 5 Peters, 190.

Mr. Gilpin opposed the rule to show cause.
This rule ought not to be granted:
1. Because the petitioner is not entitled to

the office.

In the year 1837, Judge Lawrence was duly appointed and commissioned as district judge for the eastern district of Louisiana. On the 18th May, 1838, he did, as district judge, appoint John Winthrop clerk of the District Court for that district, by a commission under his hand. On the 19th May, 1838, Mr. Winthrop took the oath and gave the bonds required by law, and entered upon the duties of the office.

Thus, according to all the provisions of law, Mr. Winthrop is now clerk of the District Court; and under the seventh section of the Act of 24th September, 1789, is also, ipso facto, clerk of the Circuit Court in the same district.

On what ground, then, does the petitioner claim this office? It is this, that on 21st February, 1834, Judge Harper, at that time district judge, appointed the petitioner clerk of the court. Now, as it is admitted that no person but a district judge can appoint a clerk

of the District Court, and as the appointment made by the present judge is asserted to be illegal, the conclusion must be that the appointment of a clerk once made cannot be revoked or superseded by the court making it. This is the only ground on which the petitioner can sustain his right to this office.

This position is denied, because the express words of the law vest in the District Court the power of appointing a clerk at any time; because this appointment is similar in character to others which are unquestionably superseded by new appointments; and because every ministerial or executive office, is, ipso facto, terminated by a new appointment legally made of a competent officer, unless otherwise provided by express law.

1. By the words of the several acts of Congress, this power of appointment is vested in the court and the judge for the time being. There is no restriction or limitation to it. It is meither greater nor less than other powers vested in the court or the judge. He "has power" to appoint a clerk, as he "has power" by the words of the law to order books to be produced, to grant new trials, to punish contempts, or to make rules and regulations. Cannot acts 245*] done by virtue of those powers be revoked or superseded by a new exercise of the same power? That will not be denied. These powers are discretionary; to be exercised by the court and the judge, according to such discretion, at any time; and they may, therefore, be so exercised, even though they should operate to revoke or supersede previous acts. There is nothing which limits or restricts the present judge, because a former one has acted under the same power.

modes by which appointments to all offices are to be made; these are by elections, by the President and Senate, by the President, by the courts of justice, and by the heads of depart. ments. It also designates out of all officers whose appointment is thus provided for, but five classes whose terms shall be of a certain duration, which cannot be lessened unless by the death, voluntary resignation, or impeachment of the incumbents. These are representatives in Congress, who shall hold their office for a term of two years; the President and VicePresident for four; the senators for six, and the judges "during good behavior." The irresistible inference from this is, that by designating certain officers of whose terms it absolutely fixes the duration, it meant to lay down no such rule in regard to any others.

An ambassador to a foreign government, or a secretary of one of the executive departments, holds his office under the same general power of appointment, when vested in the President, as a clerk of court does when it is vested in the court. The Constitution has not *made the term of one more or less in- [*246 dependent of the appointing power than the other. It has annexed to the power of appointment the same rights in one case as in the other. More properly speaking, it annexes the same duties. The power of appointment is a trust to be exercised for the public welfare; it is the duty of the appointing power to select at any time the person best qualified to fill the office; he has no right to avoid its exercise, if he believes it to be essential to the general good. The fitness of the officer may depend on other circumstances than his own merits, as is strikingly the case with ambassadors of for2. Nor is there anything in the nature or eign diplomatic agents with whom it may often character of this power of appointing a clerk, happen that at particular conjunctures, public as vested by law in the district judge, which expediency may require the selection of one makes it different from the appointing power man in preference to another, without contrastvested in other persons; and in whose case, it ing their individual merits. The appointing is not denied that its exercise supersedes a pre-power is bound to act upon these causes, so as vious appointment. The acts of 1804, 1812, and 1823, which authorize the district judge to appoint a clerk, also authorize the President to appoint an attorney and a marshal. It will not be contended that the latter are irrevocable; yet there is no distinction whatever in the grant of power. An appointment of an attorney by a former President does not take from the present executive the power to appoint a new one: why, then, should the act of a former judge restrict the actual incumbent ? Either both are perpetual, or both may be superseded. In an Act passed on the 3d March, 1831, 4 Story's Laws,-, the district judge of Louisiana is "authorized to appoint an interpreter to the District Court." "It will hardly be contended that such an appointment cannot be superseded by the court; yet the power given in that case is no broader than in regard to a clerk.

3. There is nothing in the act of Congress conferring this power of appointment which in terms forbids its termination within a limited time; and it is a settled principle, arising out of the Constitution and laws of the United States, that unless there be such a prohibition, every ministerial or executive office is, ipso facto, terininated by a new appointment legally made. The Constitution prescribed the several

justly to perform his trust. If in so doing he supersedes a previous appointment, or removes a previous incumbent, that is an unavoidable result, but it would afford no excuse for the neglect of a high trust.

Nor does this view of the constitutional duty of the appointing power go to pardon or excuse any impropriety in its exercise. On the contrary, by imposing the duty of selecting the proper person at every time, it places the performance of that duty under more strict supervision. Wrongfully or corruptly, or improperly to exercise it, becomes, in this light, an official misdemeanor. Unquestionably, a judge who should be governed by favoritism or corrupt motives in performing one branch of his constitutional functions, would be equally amenable to the laws as if he were so in discharging another. His responsibility is the same whether he exercises the power to appoint an officer or the power to punish a contempt; to grant a new trial, or to do any other act which under the laws he "has power" to do. Misdemeanor in one case would afford as good ground for impeachment as in the other.

If these positions be true, it then follows that, under a fair construction of the Constitution, the appointing power, when not limited, is to perform its duties at the time and manner

And such has been the uninterrupted practice under the Constitution for fifty years. Has it ever been doubted that the President may recall an ambassador when he chooses, or change the heads of departments? Is it denied that the heads of departments may remove or supersede the clerks in their respective offices? By what reasoning, then, could a different practice be sustained in regard to the courts of law, when the Constitution confers in the same sentence the same powers upon them as upon the President and the heads of departments?

deemed best for the public good; but strictly | damus is not the proper mode of ascertaining responsible to the highest tribunal for an hon- it. This is not a case for a mandamus, acest discharge of those duties and strictly re- cording to the principles and usages of law. sponsible, also, to private individuals, for so 1. A mandamus can only be issued to a perusing it as not to interfere with their legal son or inferior tribunal, which the court issuing rights. it has a right to control, in the particular instance. It is a high prerogative writ. It is an order from a superior to an inferior tribunal, when the inferior neglects a duty which the superior is bound to see performed. It is never granted against a judge of the court that issues it, as would be the case here, were this rule allowed against the judge of the Circuit Court of Louisiana. It is never granted against a judge of the higher courts of common law. In the case of Audley v. Joyce, Popham, 176, it is spoken of as a flower of prerogative, vested in the King's Bench, to be used in con- [*248 trolling municipal corporations. In Rex v. So generally has this principle been admit- Baker, 3 Burr. 1265, 1267, it is said that it is ted, and so uniform has the practice been, that to be exercised only when absolutely necessary, out of the innumerable cases in which public and then in virtue of a general supervising 247] officers have been superseded or re- power. In The Rioters' case, 1 Vernon, 175, moved by a new exercise of the appointing and again in Lawlor v. Murray, 1 Sch. & Lepower, very few have become subjects of ju- froy, 75, 79, the Court of Chancery declared dicial examination. Whenever they have been they would not presume to issue it to the Chief 80, this exercise of the appointing power has Justice of the King's Bench. In Bridgman ▼. been judicially recognized. In the case of The Holt, Show. Parl. Ca. 117, the judges of the Commonwealth v. Sutherland, 3 Serg. & Rawle, King's Bench remonstrated against a manda148, and in that of The Commonwealth v. Bus-tory process from the House of Lords, as sier, 4 Serg. & Rawle, 451, the Supreme Court trenching upon their rights; since it was comof Pennsylvania decided that the general power pelling the action of those who by the law of of appointment, vested in the governor, au- the land had a right to exercise their own thorized him to remove an incumbent wherever judgment. In some instances it has been isthe time for the continuance of the office was sued by a higher court of record to an inferior not fixed. In the case of Bowerbank v. Morris, one, directing it to perform some strictly minWallace, 119, it is held that such removal may isterial act; but even these instances are few in be made either by express notification, or sim-number, and its exercise in common law cases ply by appointing another person to the same office. The case of Avery v. The Inhabitants of Tyringham, 3 Mass. 160, cited to sustain a different doctrine, arose out of the long established usage in New England which regards the relation between the minister and parish in the light of a contract, to be limited by express agreement, or if not, only to be dissolved for some good cause, or by consent of both parties. Even at common law, a custom for the appointing power to remove ad libitum, where the term was not fixed, or the incumbent held at will, was always held to be a good custom. Rex v. The Mayor of Coventry, 2 Salkeld, 430; Rex v. The Wardens of Thame, 1 Strange, 115; Rex v. The Mayor of Cambridge, 2 Shower, 70. If a full expression of the Legislature of the Union on this important part of the American Constitution is to be regarded by courts of justice as an authority, we have that also deliberately given, fully sustaining the right of the appointing power to remove, where no express provision exists, and declaring that right to be incidental to the power of appointment. The debate in the House of Representatives on the bill "to establish the department of foreign affairs," and vote on 22d June, 1789, Journal of Congress, Vol. I. p. 50, have always been regarded as conclusive in regard to the opinions of those who framed the Constitution.

The result then is, that Mr. Winthrop, being duly appointed, the petitioner is superseded and removed. He has, therefore, no legal right to the office to which he asks to be restored.

II. But if he has a right to the office, a man

is found to be chiefly confined to municipal corporations, courts of sessions, and such tribunals. Brooks v. Ewers, 1 Strange, 113; Exparte Amherst, T. Ray. 214; Ex-parte Morgan, 2 Chitty, 250.

In Pennsylvania, the Supreme Court, which is one of general appellate jurisdiction, has refused to say whether it will in any case issue a mandamus to a court of common pleas. The Commonwealth v. The Court of Common Pleas, 3 Binney, 273; The Commonwealth v. The Court of Common Pleas, 1 Serg. & Rawle, 195; Morris v. Buckley, 8 Serg. & Rawle, 211.

In New York, the Supreme Court has indeed assumed a general supervisory power over other courts, similar to that of the King's Bench in England; but even they have seldom, if ever, exercised this power of mandamus, except in cases of clear ministerial duty, and chiefly against town officers, etc. Sikes v. Ranson, 6 Johns. Rep. 279.

Upon these principles, this is no case for a mandamus. There is neither the high superiority in the one tribunal, nor inferiority in the other; nor the evident right of control in the particular case which is necessary to justify it. There is no precedent for it in the judicial decisions of courts in England or any of the States; and as was said by the Court of King's Bench in Rex v. Newcastle, 3 Barn. & Adolph. 252, it ought to be refused where there is no precedent for the exercise of such a power.

2. A mandamus can only be issued to a person, or inferior tribunal, when the act ordered to be done is ministerial, not discretionary.

In Foot v. Brown, 1 Strange, 625, the Court of King's Bench refused a mandamus to compel a corporation to proceed to an election, because it was discretionary with the corporation. In Giles's case, 2 Strange, 881, they said that where justices of sessions had a discretion ary power, a mandamus would not be granted. In Rex v. Gray's Inn, 1 Douglas, 353, a mandamus to compel the benchers to admit a barrister was refused. In Rex v. Exeter, 2 East, 462, a mandamus to compel the archbishop to admit an advocate of the Archer's Court was refused. In Rex v. Gloster, 2 Barn. & Adolph. 163, where the bishop refused to confirm a 249] deputy-registrar, who then applied for a mandamus, the Court of King's Bench said there was no mode of forcing a person, who has a discretionary power, to exercise it;" and they added: "Suppose the bishop returned reasons which we thought insufficient, what course could we take." And the cases of Rex v. Flockwood, 2 Chitty, 251, Ex-parte Morgan, 2 Chitty, 250, and Rex v. Wilts, 2 Chitty, 257, all show that the Court of King's Bench will never control inferior courts in matters of judgment.

The Supreme Court of New York in Wilson v. Albany, 12 Johns. Rep. 414, said that, "wherever a discretionary power was vested in an officer, and he had exercised that discretion, they would not interfere, because they could not control, and ought not to coerce, that discretion." In Gilbert's case, 3 Cowen, 59, the same court refused a mandamus to require the Court of Common Pleas to strike out certain conditions which it had thought proper to annex to one of its orders. In Ex-parte Johnson, 3 Cowen, 371, the same court refused to compel the Court of Common Pleas to hear charges against a justice of the peace.

The Supreme Court of Pennsylvania, in The Commonwealth v. The Court of Common Pleas, 3 Binn. 273, said that "they could not compel an inferior court to decide according to the dictates of any judgment but its own. In The Commonwealth v. Cochran, 5 Binn. 103, they said they could only direct an inferior court to act according to the best of its judgment. In The Commonwealth v. County Commissioners, 5 Binn. 536, they refused to direct the commissioners to allow an account. In The Commonwealth v. Clarkson, 1 Yeates, 48, they refused to direct the commissioners of bankruptcy to give the bankrupt a certificate, although they thought him entitled to it. In The Commonwealth v. The Court of Common Pleas, 1 Serg. & Rawle, 187, they refused a mandamus to compel the Common Pleas to admit an attorney. And in Austin's case, 5 Rawle, 203, where a court of common pleas had struck several attorneys from the rolls, it was necessary to obtain an act of Assembly to give the Supreme Court jurisdiction over the

case.

The

The Supreme Court of Virginia do not establish a different principle in Dew v. Sweetspring's Court, 3 Hen. & Mun. 1, cited by the opposite counsel; for there the appointment of the clerk did not belong at all to the inferior court. The appointment was vested entirely in the Superior Court, and all the inferior court had to do was to take the security -a duty clearly ministerial,

1

In Louisiana there are eight district courts, from which there is an appeal to the Supreme Court. The district courts appoint their own clerks, and the Supreme Court "has power" to issue all mandates necessary for the exercise of its jurisdiction over inferior tribunals. Digest of La. Laws, 295. In the case of Winn v. Scott, 2 La. Rep. 89, the Supreme Court said they could not issue a mandamus except to aid their appellate jurisdiction. In Louis. College v. The State Treasurer, 2 La. Rep. 395, they refused to direct a public officer to do an act relative to which he was invested with discretionary power. In The State v. [*250 Dunlap, 5 Martin, 271, they refused to direct a district judge, by mandamus, to restore to office a clerk of the District Court whom he had removed, though they disapproved of the removal.

The Supreme Court of the United States, in The United States v. Lawrence, 3 Dall. 45, said they would not compel a district judge to decide according to any judgment but his own. In Marbury v. Madison, 1 Cranch, 171, they said that where an officer was to exercise executive discretion, any application to control his conduct would be rejected without hesitation. In M'Cluny v. Silliman, 6 Wheaton, 598, they refused to interfere with a register of a landoffice acting within the limits of his office.

The principle, therefore, is settled beyond question, that where the inferior tribunal has a discretion, and is to exercise its judgment in the act to be done, there a mandamus cannot be issued. In the present case the duty is clearly discretionary; it is one requiring the exercise of judgment; it is in no sense ministerial; it is either judicial, if regarded as an act of the court, or it is executive, if considered as the act of an officer, vested by the Constitution and law with the power of appointment.

3. A mandamus cannot be issued to restore a person to an office which is not a permanent one-never to an office determinable at pleasure. In Draper v. Blaney, 1 Levinz. 291, Peppis's case, Vent. 342, and Dighton's case, Vent. 82, a mandamus was refused to restore a town clerk who had been removed-the corporation being vested with the power to appoint, without any limitation as to the tenure of the office.

4. A mandamus cannot be issued unless the petitioner has no other legal remedy.

In Rex v. Street, 8 Mod. 98, the Court of King's Bench refused a mandamus to direct the old churchwardens to deliver up the parish books to their successors, because the latter might try their right to them at law on a feigned issue. In Rex. v. Chester, 1 Maule & Sel. 103, the same court said they would not grant a mandamus where another remedy was open to the parties. In Marbury v. Madison, 1 Cranch, 169, this court said that a party applying for a mandamus must be without any legal remedy.

In this case the petitioner can try his right, either by an information in the nature of quo warranto, or by an action for money had and received, or by assize.

In the case of The People v. New York, 3 Johns. Cases, 79, it is held that a mandamus is not to be granted to admit a person to office, where another is in by color of right. The

proper remedy, say the court, is by an information in the nature of a quo warranto.

this court power "to issue writs of mandamus in cases warranted by the principles and usages of law;" but that enactment was solemnly decided in Marbury v. Madison, 1 Cranch, 176, and in Ex-parte Crane, 5 Peters, 193, to be contrary to the Constitution, as an exercise of original jurisdiction.

In Rex v. Jotham, 3 Term Rep. 575, it was held that a mandamus was not to be granted even to restore to office a person previously admitted, because he could try his right by an action for money had and received. And the cases of Harcourt v. Fox, 1 Shower, 516, Smyth v. *2. Nor can it be exercised by virtue of [*252 Latham, 9 Brigham, 692, and Avery v. Tyr- its appellate jurisdiction; for the restoration 251*] ingham, 3 Mass. Rep. 160, all show of a clerk to office is in no sense an appellate that an action of assumpsit for the fees or proceeding. It is held, in Marbury v. Madison, salary of an office, is the proper mode of as-1 Cranch, 175, that an appeal is a resort to certaining the right of the party claiming it. this court "to revise and correct the proceedThe action of assize, though out of use, is in ings of the court below in a cause already inall respects consistent with our general prac- stituted." In Wishart v. Dauchy, 7 Cranch, tice of introducing (somewhat simplified in 110, it is said there are two modes of doing form) the direct modes of action established by this a writ of error in common law cases, to the common law. It allows to both parties a re-examine the decision in point of law, and trial by jury; gives damages to the injured in appeal in civil law cases to review the law party, and restores him to the office if unjustly and fact. In Davis v. Braden, 10 Peters, 287, deprived of it. The Supreme Court of New it was held that in order to bring up a division Jersey, in Farley v. Craig, 3 Green, 218, rec- of opinion between the judges of a circuit court ognize it as the proper mode "to recover before this court, the point on which they diseisin of an incorporeal hereditament, and dam-vided must have "arisen on the trial of the case ages for its deprivation." It is invariably so below." The Judiciary Act, 1 Story's Laws, recognized by the courts of common law in 60, establishes the same rule: it confines the England. In Webb's case, 8 Coke, 47, it is appellate jurisdiction of this court to appeals held that a man may have an assize of an and writs of error; and says, too, that these office, ut de libero tenemento, at common law. must be from final decrees and judgments. In In Vaux v. Jefferen, 2 Dyer, 114, an assize the present case, there is no cause instituted lies to recover the office of philizer in the Court of which the proceedings are to be revised and of Common Pleas. In Coveney's case, 2 Dyer, corrected; no decision on a point of law to be 209, the prerogative writ was refused to restore re-examined; no law and fact to be reviewed; the president of a college to his office, because no division of opinion on the trial of a cause he could have assize at common law. In Rex below; no appeal or writ of error from a final ▼. Westminster, Comb. 244, a mandamus to decree or judgment. How, then, can this case admit a bailiff was refused because he could come within the appellate jurisdiction of the have assize. In an anonymous case, 6 Mod. court. 18, Holt said that a mandamus ought not to 3. Nor is it in any respect necessary to the go where a party could have assize; and in Rex exercise of the appellate power of this court, v. Baker, 3 Burr. 1268, the same point was that the petitioner should be restored to the ruled. In Bridgman v. Holt, Show. Par. Cases, office of clerk. There is no writ of error or 111, we have a direct case in point, of an as- appeal waiting below for the want of this ofsize brought by a person claiming to be law-ficer. There is no allegation that the restorafully clerk of the court. tion of the petitioner is required for any such It is therefore submitted that, whatever may cause. There is a clerk doing all the business. be the legal right of the petitioner to the office The mandamus is not sought for on this he claims, this is not a case in which a man-ground, but avowedly for the purpose of trying, damus would be granted according to the prin in this mode, the title to the office. This court ciples and usages of law; because this court has, in numerous cases, decided where a manhas not such a control over the inferior court damus is or is not necessary to the execution as to warrant it; because the act complained of of its appellate powers: in no one of them has was not ministerial, but discretionary; because it been held to be necessary in such a case as the office in question is not a permanent one, this. Out of the seventeen applications made to endure for a definite period, and because to this court since its establishment, to issue the party complaining has other and more ap- writs of mandamus, but four have been granted. propriate remedies if he has been unjustly re- The decision of the court in these four cases of moved. The United States v. Olmstead, 5 Cranch, 115, III. But if the case were one in which a Livingston v. Dorgenois, 7 Cranch, 517, Ex-parte court, vested with unlimited power, would in- Bradstreet, 7 Peters, 634, and The New York terfere by mandamus, still this court, deriving Insurance Company v. Wilson, 8 Peters, 291, their authority from the express grant of the after elaborate argument, was that the SuConstitution and the laws founded on it, can-preme Court would issue a mandamus to a not issue it in such a case.

1. This court has no power to issue a mandamus to restore a clerk of the Circuit or District Court, by virtue of its original jurisdiction. That jurisdiction is limited by the Constitution to cases affecting "ambassadors," "public ministers" and "consuls," and those "wherein a State is party." This case is neither of these. It is true, the 13th section of the Act of 24th September, 1789, 1 Story's Laws, 59, did give

district judge, directing him, 1. To execute a decree of his court in an admiralty case, where execution had been delayed on account of the extraneous interposition of a State law. 2. To proceed to a final judgment, and not stay proceedings indefinitely. 3. To re-instate a suit dismissed on motion, after issue joined, so that the parties might have a final judgment. 4. To sign a judgment on the record where it had been previously recovered and entered accord

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