Henry Baldwin

“ We must respect the solemn decisions of our predecessors and associates, as we may wish that those who succeed us should respect ours; or the supreme law of the land, so far as depends on judicial interpretation, will change with the change of judges. There may be exceptions to this rule. When they do occur, my hope is, that my reasons for a departure will be found in the great principles of the government, which meet with general assent in their adoption, though the most able and upright may differ in their application. ”

“ An order from a superior to an inferior court to make that a part of the record which they do not feel it their duty to do, is in effect to compel them to decide by the judgment of others, and not according to their own.
The next requisite which the supreme court say is necessary is manifestly wanting. There is, by the principles and usages of the common law, a specific legal remedy provided for the very case, by a special writ from chancery, returnable before the king in chancery, reciting the mandatory parts of the statute of Westminster. ”

“ The silent uncontested exercise of jurisdiction may induce the profession to claim it as a right founded on precedent, though the judgment of the court may never have been given on the question of power, or their intention have been drawn to it by the counsel. ”

“ But in reply to the question, has such a writ as this now asked for, ever formed a part of the principles or usages of the common law of England, the response through all time has been the same: it is not the lineal descendant of the venerated mother of our best institutions. I have drawn largely on the adjudications of this high tribunal; and sought in the principles established by the great men who have formed an embryo system of American jurisprudence, that will not cower before any which has required centuries to build up in Europe. ”

“ When made by counsel or suggested by ourselves, we must examine them with the greatest assiduity; when not aided by the researches, and enlightened by the display and conflict of the talents and intelligence of the bar, and without the responsibility of even an argument, this court is called on to assert a power, which in the forty-two years of its existence it has never exercised, that power growing out of a statute under which it has never been exercised, during the more than five centuries which have elapsed since its enactment even in the country in which it was first adopted ”

“ The judges to whom it is directed are supposed by the writ to have done wrong. They may obey the writ by sealing the exceptions; or they may make a special return, which must be made to the king in chancery, and can be made no where else: and in issuing the writ the court of chancery acts as much judicially as the court of king's bench does in granting a mandamus. ”

“ A mandamus being a writ to compel the performance of a ministerial act by a judicial officer, is not, and cannot be a subject matter for the cognizance of an appellate court, which acts only on the judicial acts, the judgments, and the decrees of inferior courts. ”

“ Questions of jurisdiction and power ought neither to be sought nor avoided; a great one has arisen in a very small case, but such cases generally lead to the development of the mighty principles which subvert and found governments. We are asked to issue a mandamus to the circuit court of New York, under circumstances which would not justify one to a county court. ”

“ The English common law was a system which was intended to be applied to the exercise of the judicial power of the courts of the union, who were vested with an appellate jurisdiction over the highest courts of every state, and the necessity is obvious of proceeding according to uniform principles and usages well known and defined on the subject of its powers and jurisdiction. ”

“ The importance of the principles involved in this case, not only as they bear on the jurisdiction of this court in issuing prerogative writs to the inferior courts of the United States, but also on the appellate power conferred on them by the constitution and the twenty-fifth section of the judiciary act over the state courts, has made it a high duty to give this application a most deliberate examination. Compelled to dissent, I was bound to give my reasons, and cite the authority on which my judgment was formed. Another reason is equally imperious. ”

“ As the matter contained in the bill of exceptions forms a part of the record, the supreme court must take it as true. It admits of no contradiction by any proof. The signing of it by the circuit court is not a ministerial act; but is in its nature judicial, relating to the admission or rejection of what is offered in evidence, or matter of law given in charge to the jury or withheld by the court. ”

“ The principles and usages of law, which warrant the issuing of this writ, are clearly laid down in 1 Cranch, 168, 169: 'whenever there is a right to execute an office, perform a service, or exercise a franchise, more especially if it be a matter of public concern or attended with profit, and a person is kept out of possession of such right, and has no other specific legal remedy, the court ought to assist by mandamus upon reasons of public policy to preserve peace, order and good government ”

“ The common law definition of a mandamus, which is adopted in this court, is, 'a command issuing in the king's name, from the court of king's bench, and directed to any person, corporation, or inferior court of judicature within the king's dominion, requiring them to do some particular thing therein specified, which appertains to their office or duty, and which the court of king's bench has previously determined, or at least supposes to be consonant to right and justice.' Marbury vs. ”

“ It enumerates two writs, but does not mention a mandamus. The reason is obvious; that had been provided for in the preceding section: congress could not have foreseen, in 1789, that any part of their legislation on the subject of mandamus would have been declared unconstitutional and void in 1803, and the decision in Marbury and Madison can have no bearing on the fourteenth section. ”

“ And they these respondents are so far from apprehending they have done any wrong to the petitioners in this matter, that they humbly offer, with your lordships' leave, to wave any privilege they have as assistants to this honourable house, and appear gratis to any suit which shall be brought against them in Westminster hall, touching the matter complained of. ”