duties, even where those duties require an interpretation of the law. The writ of mandamus, in other words, is not to be used as a writ of error in place of an appeal. If there has been a misinterpretation of the law by the executive officer, the court, if it has been given jurisdiction, will correct it on appeal, or the person who believes himself injured may institute appropriate civil or crim inal proceedings.

36

In Bates & Guild Co. v. Payne37 the authorities are reviewed, and a doctrine stated that is not quite as broad as that declared in Oil Co. v. Hitchcock, the court pointing out that "even upon mixed question of law and fact, or of law alone," the action of the official "will carry with it a strong presumption of its correctness, and the courts will not ordinarily review it, although they have the power, and will occasionally exercise the right of so doing."

38

In Marquez v. Frisbie the court declare that "it is a sound principle that where there is a mixed question of law and fact, and the court cannot so separate it as to see clearly where the mistake of law is, the decision of the tribunal to which the law had confided the matter is conclusive."

40

When a subordinate administrative officer is overruled by his superior who has an appellate administrative jurisdiction over him, his duty to obey is a ministerial one and may be compelled by mandamus.39 The federal court must, however, have been granted, by statute, the authority to issue the mandamus and, in fact, no such general authority has been granted by Congress to the federal courts. It has, however, been held, that the courts of the District of Columbia, having been granted general common-law powers, possess the authority.11

36 Riverside Oil Co. v. Hitchcock, 190 U. S. 316; 23 Sup. Ct. Rep. 698; 47 L. ed. 1074.

37 194 U. S. 106; 24 Sup. Ct. Rep. 595; 48 L. ed. 894.

38 101 U. S. 473; 25 L. ed. 800.

39 United States v. Miller, 128 U. S. 40; 9 Sup. Ct. Rep. 12; 32 L. ed. 354. 40 United States v. Black, 128 U. S. 40; 9 Sup. Ct. Rep. 12; 32 L. ed. 354; United States v. Windom, 137 U. S. 636; 11 Sup. Ct. Rep. 197; 34 L. ed. 811. 41 Kendall v. United States, 12 Pet. 524; 9 L. ed. 1181; United States v. Schurz, 102 U. S. 378; 26 L. ed. 167.

§ 763. The Amenability of the President to Compulsory Judicial Process.

From the foregoing it has appeared that, for the performance of a purely ministerial act, a mandamus will lie to the heads of the great departments of the Federal Government, and, a fortiori, to their subordinates. We have now to inquire whether the President, the chief executive of the nation, is, with reference to the performance of a purely ministerial act, similarly subject to compulsory judicial process. This question has several times been before the courts, and though not often passed upon in limine, has been uniformly answered in the negative.

In Marbury v. Madison2 the question was as to the issuance of a mandamus not to the President but to the Secretary of State. It was argued, however, that the Secretary acted as the agent of the President, and that the President, as Chief Executive, was not amenable to the writ. The court, in its opinion, held that the Secretary was, as to the action prayed for, subject to the writ, but conceded that in cases in which the Secretary was but carrying out the political or discretionary will of the President, the writ would not issue. In this case it will be remembered that the court finally refused to issue the injunction to the Secretary on the ground that the provision of the act of Congress giving the original jurisdiction under which the suit had been brought was unconstitutional. President Jefferson, however, declared that had the mandamus been awarded, he would have considered it an infringement upon his executive rights and as such would have resisted its enforcement with all the power of government.

In Marbury v. Madison the court did not intimate what its position would be in case the performance directly by the President of merely ministerial duties was prayed.

In the trial of Aaron Burr for treason the amenability of the President to a judicial process was brought directly into issue. Marshall, who was conducting the examination, issued, at the request of the defense, a subpæna duces tecum directing President Jefferson to appear and bring with him a certain letter to himself 42 1 Cr. 137; 2 L. ed. 60.

from General Wilkinson. Jefferson refused to appear or to bring the letter. That a compulsory process should be thereupon issued to the President does not appear to have been even considered, but upon a discussion as to whether the Attorney-General should permit the defense to have the examination of a copy of the letter which had been put into his, the Attorney-General's, possession, Marshall said: "I suppose it will not be alleged in this case that the President ought to be considered as having offered a contempt to the court in consequence of his not having attended; notwithstanding the subpoena was awarded agreeably to the demand of the defendant, the court would, indeed, not be asked to proceed as in the case of an ordinary individual." 43

In another account of the same trial the Chief Justice is reported to have said: "In no case of this kind would the court be required to proceed against the President as against an ordinary individual. The objections to such a course are so strong and obvious that all must acknowledge them. In this case,

however, the President has assigned no reason whatever for withholding the paper called for. The propriety of withholding it must be decided by himself, not by another for him. Of the weight of reasons for and against producing it he himself is the judge." 44

§ 764. Mississippi v. Johnson.

In Mississippi v. Johnson,45 decided in 1866, a perpetual injunction was sought to restrain the President from executing the Reconstruction Acts, which were alleged to be unconstitutional. The petition set out that legal secession of a State was impossible, and hence "it was impossible for her people, or for the State in its corporate capacity, to dissolve that connection with other States, and that any attempt to do so by secession or otherwise was a nullity," and that Mississippi "now solemnly asserted that her connection with the Federal Government was not in anywise

43 Burr's Trial, III, 37. Published by Westcott & Co., Washington City,

1807.

44 Burr's Trial, II, 536. Hopkins & Earle, Philadelphia, 1808. 45 4 Wall. 475; 18 L. ed. 437.

thereby destroyed or impaired," and averred" that the Congress of the States cannot constitutionally expel her from the Union, and that any attempt which practically does so is a nullity." The petition then went on to declare: "The acts in question annihilate the State and its government, by assuming for Congress the power to control, modify, and even abolish its government - -in short, to assert sovereign power over it- and the utter destruction of the State must be the consequence of their execution. They also violate a well-known salutory principle in governments, the observance of which alone can preserve them, by making the civil power subordinate to the military power, and thus establish a military rule over the States enumerated in the act, and make a precedent by which the government of the United States may be converted into a military despotism, in which every man may be deprived of goods, lands, liberty, and life by the breath of a military commander, or the sentence of the military commission or tribunal, without the benefit of trial by jury, and without the observance of any of those requirements and guarantees by which the Constitution and laws so plainly protect and guard the rights of the citizen."

President Johnson had vetoed these acts on the ground of their unconstitutionality. It was charged by the bill that nevertheless he was about to execute these acts. In so doing he would necessarily be performing a purely ministerial act, since, it being known that he personally denied their constitutionality, it followed that in executing them he was simply obeying, without opportunity for discretion, the commands of Congress.

In support of the bill it was argued that the judicial power is extended by the Constitution to all cases in law and equity arising under the Constitution, that the President was a creation of the Constitution, and an agent for its enforcement.

In opposition to the bill it was argued that this was a suit against the President officially. "There is," it was asserted, "no allegation that the President is about to do anything of his own motion which as President he is not authorized to do. The alle

gation is that he is about to execute certain laws passed by Congress."

"that

"It is not upon any peculiar immunity," said counsel, the individual has, who happens to be President, upon any idea that he cannot do wrong; upon any idea that there is any particular sanctity belonging to him as an individual, as in the case with one who has royal blood in his veins; but it is on account of the office that he holds that I say the President of the United States is above the process of any court, or the jurisdiction of any court, to bring him to account as President. There is only one court, or quasi-court that he can be called upon to answer to for any dereliction of duty, for doing anything that is contrary to law or failing to do anything which is according to law, and that is not this tribunal, but one that sits in another chamber of this Capitol. There he can be called and tried and punished, but not here while he is President, and after he has been dealt with in that chamber and stripped of the robes of office, and he no longer stands as the representative of the government, then, for any wrong he has done to any individual, for murder or any crime of any sort which he has committed as President, then and not till then can he be subjected to the jurisdiction of the courts. Then it is the individual they deal with, not the representative of the people."

The court, in a very brief opinion, refused to issue the writ, saying:

"The single point which requires consideration is this: can the President be restrained by injunction from carrying into effect an Act of Congress alleged to be unconstitutional?

"It is assumed by the counsel for the State of Mississippi, that the President, in the execution of the Reconstruction Acts, is required to perform a mere ministerial duty. In this assumption there is, we think, a confounding of the terms 'ministerial' and executive,' which are by no means equivalent in import."

After pointing out that the duties sought to be enjoined were executive and political, the court declare that "an attempt on the part of the Judicial Department of the Government to enforce the performance of such duties by the President might be justly