The enquirer. [volume] (Richmond, Va.) 1804-1815, 1808-07-29

=
In the first place, the law gave the collec-
tn cn!,,,,ets discretion: l.s
According to the opinion he might form. he
possessed competent authority tosrant orre-
fuse clearance. And apprehcnd where
the law has left this discretion in an officer,
the court agreeably to the British practice
| and precedeDts, ought not to interpose, by
way of nia,,dGn,us.
| 2dly. In this case there was a controlling
power in the Chief Magistrate of the United
States. There was in fact an express an
peal given to the President BY the very words
ct theact of congress, which authorises the
collectors to dctain vessels, " unll the deci-
sion of the President be had thereupon."
| by the n9andInius the reference to the Pre-
sidsnt is taken away, and the collector iscom-
| mandcd To clear the vessel without delay
| Agreeably to the English Authorities under
such circumstances, it is not the course be-
, heve to issue n.dndapus
Silly. The parties it seems had their legal
remedy against the collector, and it is not IL
sual, If not unprecedented, to grant a man
damus in such a case.
4thly. mandamus is not issued 70 mere
ministerial officer to compel him to do his
! duty. The court will leave the parties to
their remedy by action, or even By indict-
ment. In England, in very late case, they
decided that they would grant a riandamus
to ministerial officer, such as the treasu-
rer OF county, for the proper remedy was
| by Indictment
am aware of a precedent in which it
seems to be admitted that DfGaGanNS may
! issue to the commissioners of excise, to COM
pei them III proper case to grant fie,2nif.
This case is more analogous to the one now
before us than any other, I have been able
TO discover, after diligent research Bat
! IN A.. 7
| The question al gued BESIDES the commits
sioners of excise in England form boa:l
tor experimenting the collection of that
branch of the revenue; They constitute in
many respects court Of inferior jurisdicti-
on, which In particular cases takes cogn-
zance IN a summary way, OF offences against
the excise laws. A nGndQNdns might be
granted TO such tribunal, when it would
MT be issued 20 mere ministerial officer, ac-
| ting under them in the collection OF the re-
venue.
1t results from this view of the SUBJECT,
that the mandamus issued by the circuit
court for the district of South Carolina, was
! not warranted by any power vesed in the
circuit courts by statute: nor by any power
necessarily incident to courts, nor counte-
Iiauucti ~ any analogy between the circuit
courts, and the court of Kings bench, the
| only court in that country possessing the
! power OF issuing such writs. And it further
appears that even the court of Kings
bench, for the reasons assigned, would not
agreeably tc their practice ami principles
have interfered i'll the present case by ma7t-
damus.
1t might perhaps with propriety be added
that there does not appear in the constitute
on of the U. States any thing which f.vou,s
an indefinite extension Of the jurisdiction of
courtsover the ministerial officer within the
executive department On the ce!.t-:.:.v
c careful discrimination which is marked
between the several departments, should
dictate great circumspecticn to each in the
exercise Of powers, having any relation to
the other.
The courts are individually the source
OF legal redress for wrongs committed b.
ministerial officers, none Of whom are above
the law. This redress is to be administer
ed by due and legal process in the oIdiBa-
~ way. For there appears to be n mate
rial and an obvious distinction, between a
course of proceeding, which redresses a
wrong Committed by an executive officer,
and an interPosition by mandatory writ,
taking the executive authority out of the
hands of tie President. and prescribing the
course, which be and the agents Of anv de-
partment must pursue. In tlie one case the
Executive is left free to pct in his proper
sphere, but is held to strict responsibility;
in the other all responsibility IS taken away,
aud he acts agreeabiy to judicial mandate
Writs of this kind il made applicable 70 off
GERS unfortunately, and acts purely mi
nistefial, and executive in their nature,
would necessarily have the effect of trans
terring the powers vested in one department
to another department. II i'll a case Ike
the present, where the law vests q duty
and a discretion in an executive officer, a
court can not only administer redress a.
yalnst the misuse OF the authority, but can
previously direct the use to be made Of it,
It would seem that under the name of a ju-
dicial power an executive function is neces-
sarily assumed and that part of the consti-
tuition perhaps defeated, which makes it
the duty Of the President to take care that
the laws be faithfully executed. ! do not
sec any clear limitation to this doctrine
which wouhl prevent the Courts from com
Peiirg by mRRdn}rH3 all the executive
officers, ali subordinate to the President at
least, whether charged with legal duties ii
the Treasury or other departr,eBts, 20 ex-
ecHic the same according to the opifiion of
the judiciary and Contrary to that of the
executive. And il is evident that the con-
fuoion arising will be greatly Increased by
the exercise Of such a power By number
ut separate courts of local jurisdiction,
I whose proceedings would have complete
and FINAL effect, without an opportunity of
ccniroul by the supreme court. so many
branches of the judiciary acting within their