any court can move one farther step in the cause; as any movement is necessarily the exercise of jurisdiction. It is the power to hear and determine the subject matter in controversy between parties to the suit, to adjudicate, or to exercise any judicial power over them; the question is whether on a case before a court, their action is judicial, or extrajudicial, with, or without the authority of law, to render a judgment or decree upon the rights of [*600 the litigant parties. If the law confers the power to render a judgment or decree, then the court has jurisdiction; what shall be adjudged or decreed between the parties, and what is the right of the case, is judicial action by hearing and determining it." 12 Pet. 718.

I concur with the court in not interfering | diction "must be considered and decided, before with the proceeding of the Circuit Court, refusing the mandamus prayed for by the relator, on the ground that she is not entitled to the benefits of the general pension law of the 3d March 1837, and of the special resolution passed on the same day in her favor. My opinion is not founded on any special proceedings in the passage of the law and resolution, which have been referred to from the journals of two Houses, but from the intention of Congress apparent in the provisions of the two acts, not to give cumulative pensions, and the general principle of law, that where provision is expressly made by law for a particular case, it does not come within the general provisions of another law, which may embrace it by its general terms. 4 Story, 2542, 2556. Had it been the intention to give both, the presumption is, it would have been so declared; and the nature of the pensions, one being for life, and the other for five years and arrearages, shows the intention to be contrary, and to give her the election which she should claim: she has yet that election, as it appears from the return to the rule, and the affidavits in the case, that the receipt of the pension under the general law, was, under such circumstances, no waiver of the pension specially given to her, should she now elect to take it, in preference to the general provision under the contemporary law.

But I cannot concur in opinion with the court, on the grounds on which they affirm the judgment, for two reasons. 1. That the Circuit Court had jurisdiction of the case; and 2. That this court had not jurisdiction: and in order to ascertain whether the Circuit Court had jurisdiction, it is necessary to ascertain what is jurisdiction, as contradistinguished from its exercise; for we all agree that if the jurisdiction exists, there was no error in refusing the mandamus prayed for.

"The power to hear and determine a cause is jurisdiction; it is coram judice, whenever a case is presented which brings this power into action; if the petitioner states such a case in his petition that, on a demurrer, the court would render judgment in his favor, it is an undoubted case of jurisdiction; whether on an answer denying and putting in issue the allegations of the petition, the petitioner makes out his case, is the exercise of jurisdiction, conferred by the filing of a petition, containing all the requisites, and in the manner prescribed by law." 6 Pet 709. The objection to juris

If the court can act on any one subject of the petition, any matter, "on which the plaintiff asks its interposition, it must be retained; so that the true inquiry is, not as to the extent, but the existence of any jurisdiction" Ib. 732, if any case is made out for its exercise (13 Pet. 162); if any relief can be given we must proceed. 8 Pet. 536; 10 Pet. 228.

"Where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is binding in every other court. But if it acts without authority, its judgments and orders are nullities. They constitute no justification, and all persons concerned in executing such judg. ments or sentences are considered in law as trespassers. 1 Pet. 340; S. P. 2 Pet. 163–169; 3 Pet. 203.

When a court of general civil jurisdiction gives judgment for a debt, or confirms an act directed to be done, neither the existence of the debt, or validity of the act done can be afterwards questioned, unless on appeal or writ of error: their power to act upon the subject, to judge whether the debt is due or not, is a question always open, collaterally; but if they can act upon it judicially, their errors, however ap. parent their proceedings, inverso ordine, or con. trary to law, have no effect on their jurisdiction or the validity of its exercise, till an appellate power shall reverse them. 10 Pet. 472476; S. P. 2 Pet. 167, 169.

If the judicial function has been exercised by lawful authority, the court has jurisdiction; otherwise their acts are coram non judice. Ib. 474.

The judgment of a competent court, "with

drawn by law from the revision of this," is a sufficient cause to detain a prisoner; we cannot "look beyond the judgment, and re-examine the charges on which it was rendered."

result of these cases clearly is, that the authority to issue the writ of mandamus to ar officer of the United States, commanding him to perform a specific act required by a law of the United States, is within the scope of the Judicial powers of the United States under the Constitution." 12 Pet. 618.

"Congress has the entire control of the district for every purpose of government, and it is reasonable to suppose that in organizing a judicial department here, all judicial power nec

be vested in the courts of justice. The Circuit Ccart here is the highest court of original jurisdiction; and if the power to issue a mandamus in a case like the present exists in any court, it is vested in that court. Ib. 619.

"The judgment of a court of record, whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it." 3 Pet. 202, 203; S. P. 7 Wheat. 42-45. The Circuit Court for the District of Colum-essary for the purposes of government would bia is a court of record, having general jurisdiction over criminal cases. An offense cognizable in any court, is cognizable in that court. If the offense be punishable by law, that court is competent to inflict the punishment. The judgment of such a tribunal has all the obligation which the judgment of any tribunal can have. To determine whether the offense charged in the indictment be legally punishable or not, is among the most unquestionable of its powers and duties. The decision of the question is the exercise of jurisdiction, whether the judgment be for or against the prisoner. The judgment is equally binding in the one case as in the other, and must remain in full force, unless reversed regularly by a superior court capable of reversing it. If this judgment be obligatory, no court can look behind it. If it be a nullity, the officer who obeys it is guilty of false imprisonment. Ib. 203 to 209, passim.

These principles draw the line between jurisdiction and its exercise so clearly as to supersede the necessity of any further inquiry what they are respectively; leaving no open question, except their application to this case, which is an application, or motion for a mandamus to the Secretary of the Navy, to compel him to pay to the relator, or to issue his warrant for the pensions claimed by her, under the Act and Resolution of Congress of the 3d March, 1837.

"There can be no doubt but that in the State of Maryland a writ of mandamus might be issued to an executive officer, commanding him to perform a ministerial act required of him by law; and if it would lie in that State, there can be no good reason why it should not lie in this district in analogous cases." Ib. 621. The court then decide that the Circuit Court of the district has the power to issue a mandamus, under the first, third, and fifth sections of the Act of 27th February, 1801, Ib. 622; and in applying the law to the case before them, say, "There was no want of jurisdiction, then, as to the person, and as to the subject matter of jurisdiction, it extends, according to the language of the act of Congress, to all cases in law or equity. This of course means cases of judicial cognizance. That proceedings on an application to a court of justice for a mandamus are judicial proceedings cannot admit of a doubt, and that this is a case in law is equally clear." Ib. 623, 624.

The court then construe the third section of the Act of the 27th February, 1801 (3 Story, 2089), "as if the eleventh section of the Act of 13th February, 1801, had been incorporated inThe first proceeding in the Circuit Court was to it," by which this section declares, "that the on a petition and affidavit in the proper form, circuit courts shall have cognizance of all cases praying for a rule to show cause why a man- in law or equity arising under the Constitudamus should not issue; to which a return hav-tion and laws of the United States, and treaing been made it was adjudged to be sufficient, ties made, or which shall be made under their and the motion for the mandamus was refused authority; which are the very words of the to be granted. Did, then, the petition, affidavit, Constitution, and which is of course a delegaetc., present a case for the exercise of the ju- tion of the whole judicial power, in cases aris601] dicial power of the Circuit Court, or ing under the Constitution, laws, etc.; which was it a matter coram non judice, is the ques- meets and supplies the precise want of delega tion; for if they could inquire into it as judges, tion of power, which prevented the exercise of they had power to grant the rule, however er- jurisdiction, in the case of M'Intire v. Wood roneously, illegally, or even oppressively, they and M'Cluny v. Silliman; and must, on the might act in doing it. In that stage of the principles which governed the decision of the cause, the proceeding was on the case as made court in those cases, be sufficient to vest the out by the relator, which might justify the power in the Circuit Court of this district." 12 rule; though on the return of the respondent Pet. 626. Its judgment, awarding a peremptory there might be conclusive reasons for proceed- mandamus against the Postmaster-General, ing no farther; but as the question of juris was accordingly affirmed. Vide 6 Wheat. 600. diction is on the first step, all questions which follow it are matters of discretion in its exercise, so that the only inquiry is, whether the case is "of judicial cognizance." 12 Pet. 623.

As the authority of that case has been recog nized in the opinion of the court delivered in this, it must be considered as settled that the Circuit Court of this district, having the cog. In ascertaining the jurisdiction of the Circuit nizance of all cases in law or equity, and being Court of this district, I shall confine myself to a court of general jurisdiction, is invested with the opinion of this court. in The United States the whole judicial power of the Constitution, v. Kendall, in which it was decided that the in relation to writs of mandamus; which is case was proper for a mandamus, and that jurisdiction, if judicial cognizance of the perthat court had power to issue it. After a re-son, the subject matter, and the power to hear view of former decisions, they proceed: "The and determine, is jurisdiction; and of [*602

consequence, that court has a right to decide | damus to the head of one executive departevery question which arises in the cause, when ment has been affirmed as an act within the their first step is judicial, under the authority jurisdiction of the court, and is a case proper of law. 1 Pet. 340. for its exercise; because the thing commanded to be done was ministerial in its nature. 12 Pet. 618, 626.

It is admitted that if the law had required the Secretary of the Navy to do a ministerial act, the jurisdiction of that court would be unquestionable; not only to grant the rule to show cause to issue the mandamus, but enforce it by ultimate process, if no sufficient cause is shown to the contrary in the return: which appears to me to be also an admission that that court may and must judicially inquire whether the act enjoined by law and refused to be performed, is ministerial, executive, or discretionary, in its nature. It is of the essence of the jurisdiction of any and every court of record, which is authorized to decide on any class of cases, to inquire whether in the one before them it is of that class; whether it is proper for the exercise of their power; and how it shall be exercised: otherwise its action is abortive, and its proceeding by the most solemn consideration is a nullity, if their jurisdiction is to be tested by the judgment which they shall render.

A decision of the same court, refusing a mandamus to another head of an executive department, has also been affirmed, on the ground that that court had no jurisdiction of the case, because the act which that officer was called on to perform was of an executive, discretionary nature, and consequently not ministerial; from which no other conclusions can result than these:

First. That the court, which has exclusive, original jurisdiction, to award a mandamus to a head of a department, in any case, the only court in whom this power is invested, has neither jurisdiction or power to inquire judicially whether the act which is the [*603 subject of the application for a mandamus, is of that nature as to justify the awarding of this writ, and of consequence, cannot decide whether it shall issue or not, for if it can so I inquire and decide, that is necessarily the exercise of jurisdiction.

Second. That the only court which has any original jurisdiction over the person and subject matter, to which the application for the mandamus applies, is incompetent to hear and determine it on its merits, if this court, in its exercise of appellate power on a writ of error, shall be of opinion that the Circuit Court ought not to award the mandamus in the case before them, on the sole ground that the act complained of was not ministerial, and that therefore the subject matter was coram non judice, in that court.

If a decision in this case, that a mandamus shall not issue, is not a nullity, a contrary one cannot be; for such a decision is the result of a judicial inquiry, which the law authorizes to be made, whether the rule shall be granted, and the proceedings be followed up to consummation or not: the law authorizes this inquiry into the facts of the case, and the judgment of the court puts an end to the "inquiry concerning the fact, by deciding it." To determine whether the facts of the case are legally sufficient to award the process of the court, "is among the most unquestionable of its powers and duties." 3 Pet. 203. The decision of these Third. Whence it follows that this court, in questions is the exercise of jurisdiction, what- virtue of its appellate jurisdiction can alone ever judgment may be given; and if the prin- exercise the judicial power of the United ciples laid down in the case of Kendall are law | States, to hear and determine a case on a manin this, the result is irresistible that the court damus, which turns on the question whether the which can decide the facts and law, on which act sought to be commanded to be done, was the granting or refusing a mandamus depends, of a ministerial nature, a proper subject for the has jurisdiction to hear, determine, and render writ, or of an executive, or discretionary chara judgment on the application; which is con-acter, which made it improper to issue it. In clusive till reversed.

When this court has most solemnly adjudged that the authority to issue a mandamus "is within the scope of the judicial power of the United States, under the Constitution;" that if it exists in any court it is vested in the Circuit Court of this district, and that the power in that court to exercise this jurisdiction "results irresistibly" from the Act of 1801, I am wholly unable to reconcile the conclusion formed in this case with the principles and premises established in that; or to view the two cases in connection on this point, without the conviction that they are entirely repugnant, as well in principle as in their consequences.

It is the settled law of this court that it cannot issue a mandamus to a public officer, in virtue of its original jurisdiction (1 Cranch, 174, etc.; 12 Pet. 621); that this Circuit Court, by its original, general jurisdiction, has been invested with this power; that it exists in no other court; is within the scope of the judicial power of the United States; and, consequently, exclusively within the judicial cognizance of that court. An award of a peremptory man

other words, that the award of a mandamus, in a case where its award would be erroneous, was an usurpation of the judicial function, a nullity, had it been made in this case; which conclusions can, in my opinion, be drawn only by overlooking the settled distinction between jurisdiction and its erroneous exercise.

Though it matters not for the purposes of this case on what ground the judgment below is affirmed, a view of the consequences which must result from a denial of jurisdiction under the opinion of this court must lead to the most serious considerations; for the want of original jurisdiction leaves a judgment rendered in a case coram non judice, as utterly null and void, when objected to in a collateral action, as it is after a reversal on error. Nay more so, where the nullity arises from an intrinsic want of power, it requires not the action of an appellate court to authorize all the world to disre gard it, to oppose, even by force, the officer who attempts to execute any order or judgmert which the court may make or render, and makes him liable to an action or indictment, if he actually executes it.

Now, let it be supposed that in enforcing a proceeding by mandamus, the marshal or the defendant is maimed; an indictment is found; it must be tried in the Circuit Court of this district; they decide that they had jurisdiction in the mandamus, and power to issue the attachment; that the marshal had lawful authority to execute it by force, if resisted, convict, sentence, and imprison the defendant; the hands of this court are paralyzed by its own decisions.

The sentence of the Circuit Court is final, absolute, and conclusive of the facts, as well as the law; it is withdrawn from any revision by this court, by habeas corpus, 7 Wheat. 42; 2 Pet. 202, 209, by writ of error (3 Cranch, 170172, 174), or mandamus, 3 Dall. 42; 13 Pet. 290, 408; the judgment "is as conclusive on all the world as the judgment of this court would be, as conclusive on this court as on other courts" (2 Pet. 203); though this court should be of opinion that in law the marshal ought to have been convicted. Ib. 209.

that court was competent to decide." 3 Pet. 206. So, on a motion for a mandamus, the question is whether on the petition and affidavits on the part of the relator, a rule should be granted to show cause, or the writ be awarded or refused.

"The cases are numerous which decide that the judgments of courts of record having general jurisdiction of the subject, although erroneous, are binding until reversed." "This ac knowledged principle seems to us to settle the question now before the court. The judgment of the Circuit Court in a criminal case, is of itself evidence of its own legality, and requires for its support no inspection of the indictments on which it is founded. The law trusts that court with the whole subject, and has not confided to this court the power of revising its decisions. We cannot usurp that power by the instrumentality of the writ of habeas corpus. The judgment informs us that the com mitment is legal, and with that information it is our duty to be satisfied." Ib. 207. "Without looking into the indictments, etc., we are unanimously of opinion that the judgment of a court of general criminal jurisdiction justifies this imprisonment," etc. (though as this court has declared, "that court has misconstrued the law, and has pronounced an offense to be punishable criminally, which, as we may think, is not so"), and "that the writ of habeas corpus ought not be awarded." Ib. 209. These acknowledged principles must apply to the judg

damus, as it has the same original, general, and exclusive jurisdiction in those cases as it has on criminal offenses; the judgment is of course equally evidence of its own legality, and conclusive till reversed; the only difference between the two classes of cases is dependent on the question whether this court has power to revise a judgment on a mandamus, either by a writ of habeas corpus or a writ of error.

"An imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous. Ib. Let this principle be applied to a mandamus, according to the opinion in Kendall's case; it will be manifest that the Circuit Court, having original, exclusive, and general jurisdiction in this case, had, if that case remains authoritative, full authority to exercise it, by any order, judgment or order of the former court on a manment, or process, which they deemed to be called for, in the exercise of their discretion, on the exigencies of the cause. It does not come within any power of this court, by looking to consequences, to remove any restrictions on its appellate jurisdiction, or to exercise it where it is not clearly given; it may decide on the errors of inferior courts, in assuming or exercising their power; but if it is admitted that they have jurisdiction over the person and sub604*] ject matter, and *power to issue the process in question, the power of this court is restricted to a revision of the exercise of those powers." "Whether such a restriction be not inconsistent with sound, public policy, and does not materially impair the rights of other parties, as well as of the United States, is an inquiry deserving of the most serious attention of the Legislature. We have nothing to do but to expound the law as we find it; the defects of the system must be remedied by another department of the government." 3 Wheat. 300. "We are entirely satisfied to administer the law as we find it."

"The argument of inconvenience has be pressed upon us with great earnestness. But where the law is clear, this argument is of no avail; and it will probably be found that there are also serious inconveniences on the other side. Wherever power is lodged, it may be abused. But this forms no solid objection to its exercise. Confidence must be reposed somewhere; and if it should be abused, it will be a public grievance, for which a remedy may be applied by the Legislature, and is not to be devised by courts of justice." 7 Wheat. 45.

"The question whether an offense was or was not committed, that is, whether the indictment did or did not show that an offense had been committed, was a question which

On the application for a habeas corpus, this court must see that there is a judgment of a court having acknowledged power to act in the case; all inquiry thus ceases, as this court cannot look beyond the judgment; if they inspect the petition, etc., to ascertain whether the case presented is one proper for the exercise of original jurisdiction, they usurp it by placing themselves in the seat of the Circuit Court, in exercising the precise function which has been delegated to that court, in the plenitude of judicial power. On the same ground this court might revise the judgment of a circuit court held in a State, on an action, or indictment, by habeas corpus, and discharge the defendant from imprisonment: not because the court below had not power to hear, determine, or render a judgment; but because on the case as it appeared by looking beyond the judgment, it ought to have been for the defendant. Such power has never been asserted or exercised in relation to any circuit court; it has been solemnly denied as to the court of this district, which has [*605 "larger powers, in cases of mandamus, than any other court." 12 Pet. 615, 626. If s writ of habeas corpus does not lie on its judgments in criminal, and other civil cases, it cannot lie on a judgment in a case of mandamus; if the party cannot be discharged on habeas corpus, it is decisive of jurisdiction, and shows most clearly that the only questions which can