New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-11-16

the Judge. .etsos forth si. objections under eles'o
distinct heads
In point Of law. the objections taken would seem
TO be rather difficult to- answer. The Govern"
contends, first, that no mandamu' WI he IA 40!
ssse where there il any other remedy, ana 'oA"
in THE case, if the Mesrs. Jones and 70. arc
not satisfied with his judgment en- the OXFORD
returns, the appeal is not to Judge Cato
nor 70 any court Of law, but to the Coua-
ell and Assembly of which they claim to have
been elected members. Secondly, he insists that
usudamus can only be resorted TO where the thing
to be done is purely ministerial act, not involving
.py exercise Of Judgment or discreton-a descnP.
ton which does not apply to thedusy imposed upon
and exercised by the Governor and Secretary IN
this case; involving, as it did, the determination a.
to the validity and legality Of the returns.
Tbi, di,tinctiou is fully borne out BY the c.ss Of
Msrbury Is. Madison, in the Supreme Court OF
the United States, which, in all probability, the
learned Judge Cato had in view a. his precedent Tor
the issue of this man Janus The facts Of that case,
which made great noise at the time were these
John Adams, Just previous 10 the close Of bis term
Of Office as President, had appointed certain genie
men to be Justices Of the Peace for the Dhtrct OF
Columbia. They had been confirmed BY the Sensse'
and their commissions made out, signed and sealed,
but, By some accident, remained in the Department
of State whea Adsms's term expired. Jefferson
ard lis supporters had been greatly annoyed BY the
pertinacity of Adams in filing up, BY the appoint
mert bis own party friends, every Official vacancy,
DOWN 10 the very close of his administration, and
this accident about the delivery Of these COM
missions was availed Of to withhold them alto
gether, and to appoint other persons 70
the same Offices. The disappointed Justices
hereupon applied TO the Supreme Court
for A mandamus to Mr.. Madison, who
had succeeded TO the Office Of Secretary Of
State, to compel him 10 deliver the commissions.
They took the ground that their title to the office
was complete, srd that the delivery Of the comus'
sions was mere ministerial act, which Mr.. Madi-
son was bound to perform. An order to Dir. Madi'
son 10 show cause why the mandamus should not
issue was accordingly granted. But this inter
ference on the part of the Court was taken in high
dudeeon BY jefferson Mr.. Madison took no notice
of the order and made no appearance to it. The
Court, however, went on with the case, and the
facts were finally established, though not without
some difficulty in e1tOrtng testimony from the
clerks in the State Department, who at first de-
clined to answer. Though the view Of their rights
Get up by the plaintiffs was sustained BY the Court
the case finally went off on the ground that the
Supreme Court, being An appellate Court only, had
no right TO issue mandAmus, which is an original
writ. But, in unfolding the claim Of tho plaintiffs
in IL at case the Court wholly dscaimed any power
to interfere, as Cato has attempted to do in this
case, with any exercise Of discretion or Judgment
on the part of executive officers.
But though Governor Walker, in appearing before
Judge Cato and endeavoring to enGghten him as to
the limits of his jurisdiction, has seemed to show
more complacency toward that official than Jeffer
son and Madison did toward ChiefJustice Msrshau
and bis colleagues, he yet winds up by distinctly
telling the Judge that he viii pay no attention to
iudement in this case directing him to issue eert
Gates of election but will treat it as usurpatlon
ard nullty, which bis cath of Office requires him
to disregard. This 10 one of tho novelties and
curiosities of the answer tit being the common
cOureS
limitations to themselves and the next is, that, an
ticipsting % unfavOrable decision and with view
TO prevent dangerous conflict between the judi
cial and executive power, the Governor pro-
ceeds at once to claim an appeal-before any deci-
sion has yet been rendered-frat to the Supreme
Court of tho Territory, and if need be, to the
Supreme Court of the United States. But
how, if Cato refuses to grant this appeal, and
proceeds at once 10 q commttal for contempt
The Governor and Secretary are resolved in that
case to give specimen Of executive meekness and
of respect for Judicial authority however absurd,
such az the world has never seen before. Not only
will they submit to be imprisoned, but if any tu
multi is apprehended for their release, the Governor
tenders the use Of the United States troops under
his command to act - posse comitatus in keep
il them in jail Such is the very odd conclusion
of this very odd legal document