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PART 1. But with respect to certain cases arising under the

Exceptions revenue laws of the United States, and to all cases

to the rule

on amount.

To be strictly limited

revenue

laws.

making arising under the copyright and patent acts, the appeljurisdiction dependent late jurisdiction of the supreme court, as we have already seen, does not depend on the amount in controversy, the limitation in this respect imposed by the judiciary act, having been abolished by subsequent acts of congress. Attempts have been made by liberal construction to extend these later acts to cases supposed to be within their spirit, though not described in terms; and the supreme court has been called upon to determine their scope. But, as might have been expected, they have been held to embrace none but the cases they literally describe. Thus the act giving a writ of error from the judgment of a circuit court in a "civil action brought by the United States for the enforcement of the revenue laws, or for the collection of duties," without regard to the amount in controversy, has been decided not to extend to an action against a collector to recover back duties paid under protest; for although the question of the plaintiff's right of recovery depended on the just interpretation of a revenue law, and the case was therefore within the general policy of the act, it was not such an action as the statute describes; and, consequently, the judgment of the circuit court was not subject to review in such a case, unless the amount in Patent and dispute exceeded two thousand dollars. The lanof the act giving a writ of error or appeal, guage whatever may be the amount in controversy, in “cases arising under" the patent and copyright acts, it will be observed, is more general and comprehen

copyright

acts.

1 Mason v. Gamble, 21 Howard, 390. The phrase "revenue laws" in the act has, however, been held to embrace an act prescribing the rates of postage. The United States v. Bromley, 12 Howard, 88.

sive. But the act has been held to be strictly limited CHAP. 4. to such cases, and therefore, upon an appeal from the decree of a circuit court in a suit in equity, to annul a conditional assignment of a privilege under a patent, on the ground that the assignee had failed to comply with the terms of the assignment, the case was held not to be within the statute, and the amount in controversy appearing to be less than two thousand dollars, the appeal was dismissed for want of jurisdiction. And in another case, if a bill in equity, filed in the circuit court, to enforce the specific execution of a similar contract, an appeal met with a like fate for the same reason. In these cases the rights of the parties depended not upon the patent acts, but upon the general principles of law and equity touching private contracts. Upon the question, what constitutes a case "arising under" the copyright acts, I have met with no report of any judicial decision. It is very clear, however, that the principle governing cases relating to patents is strictly applicable also to those relating to copyrights.

2

tion on

a state

The appellate jurisdiction of the supreme court Jurisdicover the final judgments and decrees of the highest error from court of state in the cases specified in the 25th court not section of the judiciary act, is independent of the on amount amount in controversy.

1 Wilson v. Sandford et al., 10 Howard, 99. 'Brown v. Shannon, 20 id., 9.

dependent

in controversy.

PART 1.

WRITS OF
PROHIBI-
TION.

How limited.

WRITS OF
MANDAMUS

may be issued to

courts of

the United States.

CHAPTER V.

OF THE SUPERVISORY POWER OF THE SUPREME
COURT BY MEANS OF WRITS OF PROHIBITION,
AND HABEAS CORPUS AD SUBJICIEN-

MANDAMUS

DUM.

The power to issue the two former of the above named writs is given by the thirteenth section of the judicial act, as we have seen. It empowers the

supreme court to issue writs of prohibition to the district courts, "when proceeding as courts of admiralty and maritime jurisdiction ;" and these words, while they confer, are held also to limit the power. Ex parte Christy, 3 Howard, 292. In one reported case this power was exercised to restrain a district court from proceeding further in a case held not to be within its jurisdiction, and in which no sentence had yet been pronounced. The United States v. Peters, 3 Dallas, 121. The writ of mandamus. It has already been incidentally stated, in treating of the original jurisdiction of the supreme court, that the clause of the judicial act giving to that tribunal the power of issuing this writ to "persons holding office under the authority of the United States," other than judicial officers, has been held in the case of Marbury v. Madison (1 Cranch, 137), not to be warranted by the constitution.

But the authority conferred by the act to issue this writ to "any courts appointed under the authority of the United States" is liable to no such objection. To control in this manner the proceedings of these tribunals, is but the exercise of appellate power; a branch of the jurisdiction of the supreme court which congress are expressly authorized by the constitution (as we have already seen), to regulate and define according to their discretion. This power has been repeatedly exercised.

Upon the question whether the attorney-general of CHAP.5. the United States has a right, ex officio, and of his own mere motion to apply for a mandamus to compel the execution of an act of congress, which the judges of the circuit court for the district of Pennsylvania attorney. general to declined to execute, the supreme court was equally divided. 2 Dallas, 409.

Right of

move for.

discretion

In the case of The United States v. Judge Lawrence Will not be granted to (3 Dallas, 42), in which a district judge upon the control application of the vice-consul of the French Repub- ary power. lic, founded upon the provisions of a convention between the two countries, had refused to issue a warrant for the apprehension of Capt. Barre, alleged to be a deserter from the French fleet, the supreme court refused to grant a mandamus to compel him to do so, upon the ground that he had acted judicially in the case, and that the court had "no power to compel a judge to decide according to the dictates of any judgment, but his own."*

And, therefore, a mandamus directing a district court to grant an application to set aside a default and inquisition, will not be granted; the application being to the discretion of the court. Ex parte Roberts; Ex parte Adshead, 6 Peters, 216. Nor to control the decision of a district judge as to the sufficiency of an affidavit to hold to bail, or as to the amount of bail. Ex parte Taylor, 14 Howard, 3. Nor to order a district court to enter a judgment; it appearing that a motion for a new trial was pending. Bradstreet v. Huntington, 8 Peters, 588. Nor where a district judge, sitting in the circuit court, was proceeding in an equity suit, as it was alleged, irregularly; the only remedy in such case being by appeal after a final decree. Ex parte Whitney, 13 Peters, 404. Nor to order a judge to sign a bill of exceptions, which he returns is not conformable to the truth. Ex parte Bradstreet (4 Peters,

PART 1. 102); although the court does not doubt its power for this purpose in a proper case. Ex parte Crane, 5 Peters, 190. See, to the like effect, Bradstreet v. Huntington, 8 Peters, 588; Bank of Columbia v. Sweeny, 1 Peters, 567; Life & Fire Insurance Company v. Adams, 3 Peters, 571, 573. In Ex parte Many (14 Howard, 24), a mandamus was denied directing a circuit court to fill a blank in its judgment, with the amount of costs, after the mandate of the supreme court affirming its judgment had been received. In Ex parte Davenport (6 Peters, 661), and in Ex parte Hoyt (13 Peters, 297), the court expressed an opinion on the questions of law that gave rise to the applications, although they were denied. Where it was sworn that the judge had neglected or refused to enter a judgment, a rule to show cause why a mandamus should not issue was granted. Ex parte Bradstreet, 6 Peters, 774. And at the suit of the same party, a mandamus was granted requiring a district judge, having circuit court powers, to reinstate a writ of right which had been dismissed because the declaration did not show the land in controversy to be of sufficient value to give the court jurisdiction. 7 Peters, 634. And a district court having circuit court powers having refused to carry into effect its decree from which an appeal had been taken to the supreme court and dismissed, a writ of mandamus, after an order to show cause, was granted. Stafford et al. v. New Orleans Canal & Banking Company, 17 Howard, 283.1

The foregoing were cases of original application made to the supreme court by motion or on petition supported by affidavit. But applications have in several instances been made to the circuit court of the District of Columbia, for a writ of mandamus to one of the heads of department of the national government, and in one instance to the superintendent of public printing, in which the decisions of that court were brought under the review of the supreme court on writ of error, to which form

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