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cigner, or citizen may find security.” From these are not constitutional banks in Alabama, these authorities it appears that exchange is and cannot contract there. The majority of .. part of modern banking, or at least so in the court have decided these causes upon the timately connected with it that all modern presumption that Alabama had adopted the banks have authority to deal in it. And it laws of Georgia, Louisiana, and Pennsylvania also appears that it is as much the duty of a chartering these banks. And this presumption State to provide for exchange, as for money or rests for its support upon the fact that there is a circulating medium, for its subjects or citi- nothing in the laws or the policy of the laws of

Alabama to resist this presumption. I suppose When the State of Alabama reserved to her. it will not be contended that the power of this self, by her fundamental law, at least two fifths court to presume that Alabama had adopted of the capital and control of all banks to be these laws is greater than the power of Alacreated in the State, and, by her laws, has act. bama to adopt the laws for herself. Suppose ually appropriated to herself the whole of the these banks had made a direct application to capital, management and profits of five out of the Legislature of Alabama to pass a law to auseven banks, and two fifths of the other two; thorize them to deal in bills of exchange in that had she not the same right to appropriate the State, could the Legislature have passed such a banking right, to deal in exchange, to herself, law without violating the Constitution of the to the same extent? While performing her State ? duty, under the constitution, by providing a An incorporated bank in Alabama is not only circulating medium for the citizens she was not the mere creature of the law creating it, as unmindful of her duty in relation to exchange, banks are in other States, but it is the creature and that is also provided for. Has she not pro- of a peculiar fundamental law; and if its charvided increased security and safety to the mer- ter is not in conformity to the provisions of the chant by making herself liable for the payment fundamental law, it is void. It must be recolof every bill of exchange sold by the five banks lected that the banks, which are the plaintiffs belonging to her, and for two fifths of all sold in these suits, when they present themselves to by the other two? And has she not also pro- the Legislature, asking permission to use their vided by law that all the profits derived from corporate privileges there, are not demanding a thus dealing in bills of exchange shall go into right, but asking a favor, which the Legislature the public treasury, for the common benefit of may grant or refuse as it pleases. If it should the people of the State? And has she not, by refuse, it would violate no duty, or incur no rethe profits arising from her banking, including sponsibility. If, however, the court exercise the the profits on exchange, been enabled to pay power, it is upon the positive obligation of the whole expenses of the government, and Alabama that the presumption must arise, or thereby to abolish all direct or other taxation ? the right does not exist. A positive rule of law See Aiken's Digest, 61.

cannot arise out of an imperfect obligation, by It was not the intention of the Legislature, presumption or implication. But to put it on by conferring the power upon those banks to the foot of bare repugnance of the law, prepurchase and sell bills of exchange, to deprive sumed to be adopted, to the laws of the country the citizens of the Ctate, or any other natural adopting, if there be any repugnance the court person, of the right to do the same thing. But ought not to presume the adoption. Story's it was the intention to exclude all accumulated Conflict of Laws, 37. The charter of every bank capital which did not belong to the State, bank not created in conformity with the conin whole or in part, according to the constitu- stitution of Alabama must, at least, be repugtion, from dealing in exchange; and such is the nant to it. The presumption is that the char. inevitable and legal effect of those laws. Letters of all these banks were repugnant, there us test this principle. It is admitted by the being no reason or inducement to make them majority of the court, in their opinion, that conform in the States where they were created. these constitutional provisions were intended. The power of the court to adopt the laws creatas a restraint upon the Legislature of the State. ing these banks, as they actually existed, and If so intended, the Legislature can pass no law the power of the Legislature of Alabama to contrary to the spirit and intention of the con- adopt them in a modified form, or to grant the stitution; or contrary to the spirit and inten- banks a mere permission to do a specified act, tion of the charters of the banks, created in present very different questions, and involve pursuance of its provisions. Now, were the very different powers. If, therefore, the Leg. laws chartering the banks which are parties to islature could not adopt the charters in the this suit, contrary to the spirit and intention of least objectionable form, nor authorize the the constitution and laws of Alabama? That banks to deal in exchange, without violating is the precise question.

the constitution of Alabama, how can it be It must be borne in mind that these were said that the contracts in controversy are not banks, and nothing but banks that made the against the policy of the laws of Alabama ? contracts in Alabama, and in that character, and by what authority does the majority of and that only, have they been considered in the this court presume that Alabama has adopted opinion of the majority of the court. Were those laws? The general rule is, that slight those banks chartered by the Legislature of evidence and circumstances shall defeat a mere Alabama, two thirds of both houses concurring? legal presumption of law. This case will be Was, at least, two fifths of the capital stock, a signal exception to that rule. and of the management of these banks reserved *In the case of Pennington v. Towns. [*605 604'] *to the State! Did the profits arising end, 7 Wend. Rep. 278, the Protection and Lom. from the purchase of these bills of exchange go bard Bank, chartered by New Jersey, by agents, into the treasury of Alabama? All these ques. undertook to do banking business in New York, tions must be answered in the negative. Then and there discounted the check which was

the subject of the suit, in violation of the laws. In all other respects the states are neorestraining acts of 1813 and 1818; the first of essarily foreign to, and independent of each which enacts that no person unauthorized by other.' It is in this foreign and independent law shall become a member of any association relation that these four States stand before this for the purpose of issuing notes or transacting court in these cases. The condition of Alabama, any other business which incorporated banks taken with a view to this relation, cannot be may or do transact. The act of 1818 enacts worse than that of an independent nation, in that it shall not be lawful for any person, as. like circumstances. What that would be wa sociation, or body corporate to keep any office will see from authority. of deposit for discounting, or for carrying on “Nations being free and independent of each any kind of banking business, and affixes e other in the same manner as men are naturally penalty of $1,000 to be recovered, eto. Under free and independent, the second general law These laws the contract between the parties was of their society is that each nation ought to be held to be void; and the court says: "The pro left in the peaceable enjoyment of that liberty tection against the evil intended to be remedied, it has derived from nature. The natural 80to wit, preventing banking without the authori. ciety of nations cannot subsist, if the rights ty of the Legislature of the State, is universal which each has received from nature are not in its application within the State, and without respected. None would willingly renounce its exception; unless qualified by the same power liberty; it would rather break off all commerce which enacted it, or by some other paramount with those that should attempt to violate ito law. Such is not the law incorporating this from this liberty and independence it follows bank.”

that every nation is to judge of what its conIs there anything in these laws which more science demands, of what it can or cannot do, positively prohibits banking in New York, with of what is proper or improper to be done; and out the authority of the Legislature of that consequently to examine and determine whether State, than there is in the constitution of Ala- it can perform any office for another without bama, prohibiting all banking except in the being wanting in what it owes to itself. In all manner prescribed by the constitution? Can it cases, then, where a nation has the liberty of be believed that she intended to protect herself judging what its duty requires, another cannot against the encroachments of her own Legis. oblige it to act in such or such a manner. For lature only, and to leave herself exposed to the the attempting this would be doing an injury encroachments of all her sister States? Does to the liberty of nations. A right to offer con. the language employed in these provisions of straint to a free person can only be invested in the constitution justify any such construction ? us in such cases where that person is bound to It is general, comprehensive, and not only re- perform some particular thing for us, or from strictive, but expressly prohibitory. Whatever a particular reason that does not depend on his is forbidden by the constitution of Alabama, judgment; or in a word, where we have a comcan be done by no one within her jurisdiction; plete authority over him.” Vatt. 53, 54. and it was sufficient for her to know that no Now, apply these just and reasonable princibank could do any valid banking act there ples to Alabama, in her relation of a foreign without violating her constitution. It was con and independent State, reposing upon the rigtits tended by the counsel for the banks that no law reserved to her by the tenth amendment of the could be regarded as declaring the policy of Constitution of the United States, and then the State, unless it was penal, and inflicted show the power that can compel her to pass some punishment for its violation. This doc- penal laws to guard and protect those perfect, trine is as novel as it is unfounded in principle. ascertained, constitutional rights from the illeI know of no such exclusive rule by which to gal invasion of a bank created by any other reach the mind and intention of the Legislature. State. If this power exists at all, it can be If the language used shows clearly that partic shown, and the authority by which it acts. But ular acts were intended to be prohibited, and not even a reasonable pretense for any such the act is afterwards done, it is against the power or authority has been shown. The corpolicy of the law and void. Suppose the Legis. clusion must therefore be that Alabama, as an lature of Alabama were to establish a bank, independent foreign State; owing no duty, nor disregarding all the conditions and restrictions being under any obligation to either of the imposed by the constitution; would it not vio- States by whose corporations she was invaded, lato that instrument, and therefore the act be was the sole and exclusive judge of what was void ? And can Georgia, Louisiana, or Penn- proper or improper to be done; and consequentsylvania, by their respective Legislatures, do in ly had a right to examine and determine whethAlabama what her own Legislature cannot do? er she could grant a favor to either of those The relations which these states hold towards States without injury to herself, unless, indeed, each other, in their individual capacity of there be a controlling power in this court, deStates, under the Constitution of the United rived from some provision of the Constitution States, is that of perfect independence. In the of the United States. As none such has been case of Buckner v. Finley and Van Lear, 2 set up, or relied upon in the opinion of the Peters's Rep. 590, Chief Justice Marshall said: majority of the court, for the present I have a "For all national purposes embraced by the right to conclude that none such exists. And federal Constitution, the States and the citizens without considering any of the minor points 606*] thereof are one, *united under the same discussed in the argument, or noticed in the sovereign suthority, and governed by the sanie opinion, I dismiss the subject. 316

Peters 18.

APPENDIX.

807•] At the January Term of the Supreme Circolt Court? That concurrent power with the Court, in 1838, the following dissenting opinion Supreme Court was intended to be given, it is dit. was delivered by Mr. Justice Catron, in the case cult to believe. The power is claimed by the first, of Amos Kendall, Postmaster-General, v. The Unit. third, and fifth sections of the act. ed States, on the relation of William B. Stokes The first section adopts and declares 10 force the and others. The case is reported in 12 Peters's laws of Maryland, as they then existed on the Reports, 527. This opinion was not received from north side of the Potomac. the clerk of the Supreme Court, with the opin. By the Constitution of the United States, the lops delivered at the January Term, 1838; It was prerogative to coerce by mandamus federal officers received by the reporter from Mr. Justice Catron, had passed from the State of Maryland to the gor. on the 6th of March, 1839. It is inserted in the ernment of the Union. Her laws and courts, in present volume with the consent of Mr. Justice 1801, were denuded of the power; and as it did not Catron; and the reporter avalls himself of this remain with the courts of Maryland, so it was not occasion to record bls regret that it had not its transferred to the Circuit Court of the District of place in the twelfth volume of the reports.)

Columbia. This is deemed settled by M'Cluny V.

Silliman, 6 Wheat. 698; 6 Cond. Rep. 197. Mr. Justice Catron, dissenting :

And, substantially, the same answers may be In this proceeding of the United States against glven to the argument which relied on the 11th sec the Postmaster-General, at the relation of Stock. tion of the Judiciary Act of 1789, providing that ton, Stokes, & Company, I had intended not to 10- the circuit courts should have original cognizance, timate that I differed in any respect from the concurrent with the courts of the several States, majority, baving an aversion to dissenting opin- of all sults of a civil nature at common law or in Jons, save on constitutional questions. But my equity. two brethren, with whom I agree, having deter- Take it that Congress did not extinguish bemined to do so, It follows I must express a con- tween the cognizance of the courts to draw to them currence with the one side or the other.

controversies to be litigated ; and their powers to On the merits, I think the Senate of the United

coerce obedience to judgments or decrees, and to States and the Solicitor of the Treasury construed compel the performance of duties where ascerthe special act of Congress correctly, and that the tained rights existed, still, the section cited can. solicitor's award is a bral adjudication, and con- not help the relators. clusive of the rights of the relators. But the question whether the Circuit Court of 1801, did have conferred on it powers concurrent"

Suppose the Circuit Court of the District in this district had power to compel the Postmaster: witb' the courts of Maryland: these havlog [ 600 General, by mandamus, to enter a credit for the been deprived on the adoption of the Constitution amount' awarded, lies the foundation of our in: of the United States, of the prerogative to coerce stitutions; a question more grave or important by mandamus officers of the United States, the rarely arises. Coercion by the writ of mandamus of the officerstrict could rise no higher than those of the Mary.

concurrent powers of the Circuit Court of the D18and agents of a government, is one of the bighest land courts. exertions of sovereignty known to the British

copa arating the prerogatives and powers passed to the

The argument 18 easily met, by sepstitution and common law; it is truly declared to federal government by the Constitution, from those be one of the towers of the King's Bench (3 Black reserved to the States. Com. 110, note), and in England, can only be enforced by that court, where the King formerly sat

The third section of the Act of 27th February, in person, and is now deemed to be potentially

1801, provides : present.

"And the said court and the judges thereof, shall It is his command, in bis own name, directed to have all the powers by law vested in the circuit # court, person, or corporation, to do a particular courts and the judges of the circuit courts of the thlag therein specifed, which appertained to their United States."** office or duty, as a means of compelling Its perform

Power to issue the writ of mandamus to coerce ance. 3 Black. Com. ch. 7. The proceeding there, obedience to a sovereign command, on the

petition as here, is in the name of the government, and not of a citizen

to the sovereignty, is one thing; Juris608) that of the relators ; it stands on the foot | diction to try a case at law or in equity, is the er. of contempt, and is intended to reform oficial ercise of a very different authority. The arst en. delinquency.

forces tge performance of an official duty, by an By the act of independence, this prerogative and independent writ, against a person pot sued, where portion of sovereignty, unimpaired, devolved on

the relator shows an ascertained right, as in this the different States of this Union ; and by the Con. Instance, where the writ 18 asked to evforce a de stitution of the United States, such portion of it cree. The second tries and ascertains the right, as was necessary to coerce the courts, officers, and and establishes it, by a judgment. But to enforce agents, of the general government, was withdrawn the judgment by process is the exercise of power ; from the States and conferred on the federal sov. being the means employed to carry the jurisdiction ereignty. Here the power lay dormant until Con.

lato execution. So the Judiciary Act of 1789, and gress Bhall act. On the Legislature was imposed subsequent ones conferring Jurisdiction and powers the duty to give It effect; It was wide as the land,

on the courts of the United States, declare, and and extended to every portion of it; and by the

80 they bave been opiformly construed ; as the Judiciary Act of 1789°(sec. 13), Congress attempt cases of Marbury . Madison, 1 Cranch: M'Intyre ed to invest the Supreme Court of the United

1. Wood, 7 Cranch, and MCluny v. Silliman, 8 States with the power to issue writs of mandamus Wheat., distinctly show, without going farther. to persons holding office under the authority of the They treat of the subject before us, and need no Unlted States. But the Constitution having re

collateral aid. stricted this court to the exercise of certain origi.

What, then, are the powers to issue writs and co. nal powers, and this not belog amongst them, It erce the performance of duties, vested in the cir. was bolden, in Marbury v. Madison, 1 Cranch, so cult courts of the United States, referred to and much of the act was void. The decision was made adopted by the third section of the District Act In 1803 ; up to that time Congress and the country of 1801? did not question that a law existed proper and nec By the fourteenth section of the Judiclary. Açt essary to give effect to the prerogative through of 1789, they are declared to have power to issue the instrumentality of this court, and that it was writs of scire facias, habeas corpus, and all other properly vested in the highest tribunal in the land, wrlts not specially provided for by statute, which exercising a jurisdiction coextensive with may be necessary for the exercise of their re whole territory. So the matter stood when the spective jurisdictlons, and which are agreeable to Act of the 27th February, 1801, was passed, or

the principles and usages of law. ganizing the Circuit Court for the District of The antecedent section having vested in the su. Columbia. And the question 18, did Congress. preme Court the prerogative and power to issue by implication, confer or intend to confer this high writs of mandamus to persons holding office under prerogative, within the ten mlles square, on the the authority of the United States, of course the

our

power was not vested, or intended to be vested in of an ascertained right, by force of the strong in the circuit courts, further than might be pecessary of sovereign power, because he was a public of for the exercise of the jurisdiction conferred by cer, and who was not a suitor in court, or party the eleventh section; and so it was settled by this to a case in law or equity. court in M'Intyre v. Wood.

What is this proceeding? The relators applied to But, it is insisted, the power 18 derived from the a tribunal where a portion of sovereignty was sup. Judiciary Act of the 13th of February, 1801; to posed to have been vested, stated thelr ascertained which the Act of the 27th of February, establishing right, and made their complaint that an ordinary the Circuit Court of the District, must also have remedy was wanting to enforce the right, and bad reference; and although the Act of the 13th of asked the representative of sovereignty for the ald February, was repealed on the coming in of Mr. of the writ, and the exertion of its power, in the Jeferson's administration, in March, 1802; still name of the United States, on one of its great of. as the District Act of the 27th of February was not icers to compel him to do bis duty, to prevent i repealed, the act adopted by it became a part failure of Justice. This is the nature of the de 610.) thereof, so far as it was adopted ; and mand and the wrlt awarded for its enforcement within the District of Columbia, the powers and 1 Cranch, 168. Jurisdiction conferred by that of the 13th of Feb In no just sense can this writ of mandamus be ruary, continued in force, notwithstanding the redeemed a case at law between the United States peal in all other parts of the Union.

and the Postmaster-General. It differs lo no ma. Suppose we imply parts of the Act of the 13th terlal feature from a writ of attachment issued by of February, 1801, not to bave been repealed with- a court against one of its officers, where he refuses In this district; can we found on this implication to perform

an official duty. That it is not "a case the additional one that the act conferred on the between the relators and the Postmaster-General, Circuit Court of the District the bigb prerogative was decided by this court in M'Cluny v. Silliman. power to issue writs of mandamus, coercing the There the relator set forth that he was a citizen of secretaries and other officers of the United States one State, and the register of the land office in Ohio to perform their various duties ? Did the power of another, and therefore proper parties were be exist in the court of this district in 1803, when fore the court, "who, under the description of per. the Supreme Court brought Mr. Madison, the Sec- son, were entitled to maintain suits in the courts retary of State, before it? That no department of of the United States." To which the court rethe government, judicial tr{bunal, or law officer of sponded that the application in that instance for the United States, so apprehended at that time, or the writ of mandamus, as in the one referred to of for more than thirty years thereafter, has been M'Intyre v. Wood, 7 Cranch, 504, “were wholly abundantly established during the progress of this uninfluenced by any considerations drawn from the Investigation.

want of personal attributes of the parties." HoldIt is admitted, and was so decided in M'Intyre v. Ing in substance, as the undoubted truth is, that Wood, that none other of the circuit courts of the the mandamus was not a private remedy to the United states, bolden by the judges of the Supreme relator, but the exertion, at his request, of a preCourt, have the power claimed for the court !D rogative and attribute of sovereignty through the this district; and that throughout the twenty-six instrumentality of a court of Justice, for the sake States of the Union, this high prerogative writ of good government, and to prevent an abuse of its cannot be exerted, because Congress, since the deci- authority by those acting at its command. sion in 1803 in the case of Marbury y. Madison, Taken in this sense, the decision in M'Cluny v. has not seen proper to vest It in these inferior tri. Silliman is easily understood : viewed in any other, bunals ; nor is it matter of surprise when we recol. It is involved in all the confusion attributed to it lect to what extent the executive departments by the argument and the opinion of the court bewould have been subjected to the Judicial power. low.

Should we, then, by doubtful implication and a Another consideration prominently presents itstrained construction, apply this highest of judicial self. Congress has jurisdiction, exclusive of the powers, in its nature broad as the Union, to this several States, over' this district of ten mlles ten miles square ?

square ; and so Congress has exclusive jurisdiction That the power can only be maintained to exist over the territories of the United States; and upby implication, and not by express enactment, is on the courts of these, as upon the courts (*612 admitted on all bands. It never was attempted to of this district, the jurisdiction and powers of the be conferred in express terms save on the Supreme State courts, of which the territories were former Court; and is the construction that Invokes It forly a part, have been conferred : and, in addition the Circuit Court of this District a strained one? | thereto, the territorial courts have been invested The tenth section of the repealed Act of the 13th of with the jurisdiction and powers of the circuit February, 1801, declares "that the circuit courts courts of the United States. There are two territhen established shall have, and are hereby invest. | torles, the courts of which are now exercising such od with al the powers beretofore granted by law general jurisdiction and powers—Florida and wis. to the Circult Courts of the United States, unless consin. These courts, baving coextensive powers otherwise provided by this act."

with that of the District of Columbia, it follows There is no repealing clause to the act. The sec- If the sovereign prerogative to exert the writ of tion quoted refers directly to the fourteenth sec- mandamus to coerce executive officers of the Unit. tion of the Act of 1789, for the powers common to ed States pertains to the one court It must to the all the circuit courts of the Union. They have others; and that Congress has, by implication, in. stood unaltered, and been recognized, with slight trusted to the courts of the two territories named, exceptions, as the sole powers by which the juris. as well as to the court of this district, powers thnt diction of the circult courts has been enforced, have been unquestionably withholden from the fed. from the year 1789 to this time.

eral circuit courts of the twenty-six States. To It is losisted, however, that the jurisdiction con- say Congress never so intended, and if the power ferred on the 'Circult Court by the 11th section exists it was conferred by an oversight in the Leg. of the repealed Act of the 13th of February, 1801, 1slature, 18 perbaps asserting what few would be a much broader than that given to them by the found to deny. The truth (there can be little room eleventh section of the Act of 1789; that the for doubt) is, that Congress has been unwilling to Act of 1801 covers the whole ground of the Con- expose the action of the government in the adminstitution. This is certainly true, but the Afth istration of Its vast complicated affairs, and its section of the Act of the 27th of February, 1801, officers, who have charge of their management, to declaring what matters aball be cognizable in the the danger and Indignity of being coerced and con. Circuit Court for the District of Columbia, con- trolled at the ill-defined discretion of the inferior fers jurisdiction quite as comprehensive. Its cog: courts by the writ of mandamus; and that after 611 ) nizance, or jurisdiction “to hold plea," the decision of Marbury v. Madison in 1803, boid. ertends to all crimes and offenses, and to all cases ing that the Supreme Court had not the power thus in law and equity, provided the defendant be to coerce an officer of the United States, It has been found in the district. Thus, as the eleventh sec- permitted to lie dormant, awaiting the action of tions of the Act of 1789, and the 13th of Febru- the Legislature. The supposition is rendered highoy, 1801, each have reference to the exercise of july probable, when we consider the dellcacy, its ex: risdiction' in suits or actions between litigant par-ercise would necessarily involve, and the dimculty ties, or "over matters in some form brought before of vesting so high and extensive a power in the in. the court to try and ascertain a contested right, it ferior courts, aod especially in those of this diswould be a most unnatural construction to hold ; trict, in a modified and safe form. as I think that the phrase, "cognizance of all cases In law and equity," "authorized the court to assume Such belog my own opinion, I think the order the high power of coercing by mandamus one of the awarding the mandamus against the Postmaster secretaries or the Postmaster-General, to the per- General should be reversed. for want of jurisdic formance of some specific public duty, in case / tion in the court below to issue the writ.

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Counselor at Law, and Reporter of the Decisions of the supremo

Court of the United States.

VOL XIV

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