The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-01-06
TIE FTLIBUSTERINC FEELING IN MOBILE.
The Case OF the Schooner susan-Importsnt
Proceedings In Court-Judge Gayie's Dc


NEUTRALITY-SUSPICIOUS.
The Case OF the Schooner Susan-Important
Proceedings In Court-Judgo Gayic's Do
OUR MOBILE CORRESPONDENCE.
NOZZLE ALA, Dec. 80, 1857
Intense excitement still prevails here, owing TO the ex
6aordinary of Com. Pauldng IN invading foreign
State, making war upon Gen Walker, and taking him
prisoner from the soil OF Nicaragua.
An indignation meeting is called both here and OF New
Orleans
The report to-day that Secretary Cass repudiates Com
Paading's course has little effect in allayng the excite
nent.
The decision Of Judge Gayle the Of the schooner
Susan, tends TO increase the excitement
The steamer Fashion is at Havana, awaiting means
70 return, not being provided with money to pay
her coal and the schooner Susan rs detained on the
presumption tina. cargo destined for the relief Of the
Fashion, although ii is consigned to a house at Grey
town
tant but the determined 70 recover dana
ges for unlawful detention.
send you the proceedings in the of the Fashion,
UNITED STATES DISTRICT COURT.
from the Mobile Tribune, Dec. so, 1851
The United States District Court convened yesterday
morning pursuant TO adjournment for further hearing
Of the case OF H. g. HUMPHREYS, w A. Smith and B, F.
Marshall owners of the schooner Susan, detained in
this port by the Collector of Customs.
Inc application MADE On 5ne prScoang day oy sae
why the Collector had refused clearance TO the said
schooner Susan resisted by A. j. Requier ESQ., the
District Attorney, on the following grounds
The motion for rule nisi not side bar otion, and
graptabe Of Notice Of such motion necessary
and there would be reason for the service Of notice
the party notified had right to contest But apart from
this consideration the principle is familiar and well set
tied that the motion for rule will not be granted unless
the applicant show prima fdcte case Such k the prac
tce in this State. lex par.e Jones, K 49, Such Is
also the practice of the supreme Court of the United States
lex parte Taylor IA, Howard 81
O. The affidavit OF the petitioners entirely fails to dis ose
pima dcie The broad assumption of the affidavit
petition s that Is within the jurisdictiona powers Of
Circuit Court OF the United States TO the writ of
man Janus 10 public officer of the United States 10 COM
pei the performance of supposed minister a act The
law has been settled to the contrary by uniform series
OF DECISIONS made by the Supreme Court of the United
States These decisions assert and definitely fix the fol-
lowing principles
/. That the power to issue a mandamus n the United
States Circuit Courts is purely statutory power the crea
tnct from hA scope and incidents OF the same writ at
eommon law.
Circuit Court has specifically resisted its exercise to cases
where the writ is"required to aid or further its jursdc
tion; and,
g. That as necessary consequence be sued To
public ofHceT 10 control N III the performance Of any
official duty whatsoever This wouli be asserting orig
nal jurisdiction by the writ AID not using in aid fur
therance jurisdiction already acquired To sustain this
position he quoted the following cases-hclntyre vs.
Silliap Wheat, sos, 5'Cop iensed Reports, 1896
Condensed r. ports, l6i. Smith v. Jackson, Paine G. c.
r. 453. The rule here laid down applies 10 all the Circuit
the Crcut Court for the United States in the District
Of Columbia. This was decided in Kendall VS.. United
States IL Peters 600, where that particular tribunal
he'd for especial reasons heIea assigned to be an ex
ception, but where the rule affirmed and sanction
ed with increased expness and rgor as 10 all other
Circuit Courts Of the United states As the law therefore,
stands the Circuit Court Of the United States for
the District Of Columbia alone aud exceptively pos
Yesses the power to issue the writ OF madaInus n q
proper case, Qbat Is where the act refused purely
nInsierai) to TN er oil the United States II follows
o those principles and dec sons that the case presented
&c q (aur IN n
o,eCD and hence cannot assert by issuing the rue Ri
u relation To the Charleston case, quoted the other
sde eserday when acielrance had been enforced by
4 ancamusJudge johnson, Circuit Judge, granting the
wftthe Assistant Attorney SAID that Lad been express
" Iepudated by the Supreme Court OF the United States
the very Judge who granted the writ below pronouncug
The opinion OF the Court, and explicitly retractns bis
siun He cited In support OF this Condensed Reports
4; Cranch 5o4 therefore desuaute Of all force
NJ authority and served no apprecabe purpose, except
10 illustrate the sienderness Of the references upon which
This rested and sought to be sustained
The District Attorney having closed his argument Hon.
Walker, counsel for compliments, followed lie advert
to the argument advanced by him 10 the Court the pre-
ceding ch he would attempt recapuateo the
present occasion, and then sad shall not attempt 70
blow the gentleman In his argument, do feel dis
posed the time exhaust the patience OF this
Court in re examining in detail, the cases cied ov that
gentleman 30 sustain his view OF this case readily
agree witt IA. Attorney for the United States In his
tcl thai before lay any claim 10 the assistance OF
ra hororabe Court, must show primo facse case.
oa r sSeh the sns
Hbch stands, lar uneontradicted and unimpcachei In
these that they sole
O~ners OF American registered schooner named Sua
Ma; said vessel about TO be employed by them IN
Commercial traffic between the port Of Mobile and Grey
twn, or San Juan del Nortc In Nicaragua that having
loaded said vessel with the articles VI merchanJse which
enumerated in their affidavit they applied for clear
p,ce 20 Thaddeus Sanford Collector OF the Ger the
port Of Mobile, and that he (Sanfordl refused to
grant said clearance, assigning for such cob.
taot no reason, exoep, that De had been instruct
Well, II these be the facts in this matter Go they not
make out fra ace case' Do they not make bat aease
wbh calls loudly for the ntorposion OF the strong arm
Of this prevent the rights OF private citizens from
being utterly dsregardedf so much teen for that ohec
court over the re ef sought for by these petitioners The
constitution cf this county has vested The ludclsl
power in one supreme Court and In such inferior courts rs
the Congress may from time 90 time orden aud esabsh.
h Il the duty Of Congress then ~ vest the judicial power
OF the Uued statos AZ laid down In the constitution aud
IA their duty 10 ve the whole power The language, "
imperative Part, IN mper tive rs 10 all. Again
tbe judicial power deegaed by t1e Constitution Ia the
most general terms, may therefore be exercised by
Congress under every variety OF form o. appellate or
original Jurisdiction. This view has been held
by Judge story, rho has said that the inie-
rior courts mentioned Ia the consultation are vest
81 with all the judicial power necessary for
thcm 70 exercise by that very Constitution II being then
psrsve the next Inquiry a. to tho cases 70 which
shall apply. The judicial power shall extend 10 all the
nmisd Il may extend TO all such cases In any form 10
which judicial power may be excrcisedt may therefore
extend 10 them In the shape Of original or appellate turs
dicon both. (see Martin Hunters lessee, where
Judge Story discusses at length this question: Again.
The writ OF msndsmus will lie wbere the inquiry has been
caused by The omission commission Of purely minste
rial act, and the before us N purely ninstc
rial sct y act which, by the Law OF the land the
Collector was bound perform there had been In
fripgemeDt Of the law by the appcanti say, manda-
wi justly lie 70 compel the Collector 10 show cause
for such proceeding On his part There Is also lag Of
Congress force which that the Circuit Courts
shall axe their practice writ and order OF proceedings
agree with that pursued in the state courts.
Well, air, have almost daily knowledge
OF The fact that The SAto courts do issue
both The wrts o habeas corpus and smus certain
and1 think II Ia but far argument, whh the act Of
olly should but ought " grant the writ OF mandamus
when applied for 10 proper The OF Martin
Hunters. LIST Wheaton, here cited. II had never
been overued and should DO regarded and followed by
Circuit Judge. The declaration Of Judge Marshall IN
the ~ Msbury also cited 10 support this opinion
.oncusion Mr. Walker sad thnt he Thought the