Opinion · Supreme Court of the United States

United States v. Lawrence

United States v. Lawrence, 3 U.S. (3 Dall.) 42 (1795)

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1795-03-03
Topic
litigation

BY THE COURT: We are clearly and unanimously of opinion, that a mandamus ought not to issue. It is evident, that the District Judge was acting in a judicial capacity, when he determined, that the evidence was not sufficient to authorize his issuing a warrant for apprehending Captain Barre : and (whatever might be the difference of sentiment entertained by this Court) we have no power, to compel a Judge to decide to the dictates of any judgment, but his own. If is *54 unnecessary, however, to declare, or to form, at this time, any conclusive opinion, on the question which has been so much agitated, respecting the evidence required by the 9th article of the Consular Convention. The Rule discharged

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Headnotes

  1. Federal Courts & Jurisdiction — Mandamus A writ of mandamus will not issue to compel a judge of an inferior court to decide a matter according to the dictates of any judgment but his own, where the judge has acted in a judicial capacity; the Supreme Court has no power to control the exercise of judicial discretion vested in the judge before whom the case is pending. 3 U.S. 42 (1795)
  2. Federal Courts & Jurisdiction — Mandamus Mandamus lies only to compel the performance of a ministerial act or duty that the law peremptorily requires to be done, or to remedy a default where an inferior court refuses to proceed to judgment; it will not issue to a judge who has proceeded to give judgment according to the best of his abilities, nor to one who has exercised a discretionary power. 3 U.S. 42 (1795)
  3. Federal Courts & Jurisdiction — Mandamus Where Congress has designated the district judge as the competent judicial officer to act upon a foreign consul's demand for the arrest of an alleged deserter, and the judge refuses to issue a warrant on the ground that the evidence required by the governing treaty provision has not been produced, that refusal is the exercise of a judicial, and not a ministerial, authority, and the Supreme Court cannot interpose by mandamus to compel a contrary determination. 3 U.S. 42 (1795)
UNITED STATES v. LAWRENCE,3 U.S. 42(1795)
The UNITED STATESversusJudge LAWRENCE.
FEBRUARY TERM, 1795.
A MOTION was made by the Attorney General of the United States(Bradford)for a Rule to shew cause why aMandamusshould not be directed to JOHN LAWRENCE, Judge of the District ofNew-York, in order to compel him to issue a warrant, for apprehending CaptainBarre, commander of the frigateLePerdrix, belonging to the French Republic.

The case was this: — CaptainBarre, soon after the dispersion of aFrenchconvoy on theAmericancoast, voluntarily abandoned his ship, and became a resident inNew-York. The Vice-Consul of theFrench Republic, thereupon, made a demand, in writing, that JudgeLawrencewould issue a warrant to apprehend CaptainBarre, as a deserter fromLe Perdrix, by virtuePage 43of the 9th Article of the Consular Convention between theUnitedStatesandFrance, which is expressed in these words:

"ART. 9. The Consuls and Vice-Consuls may cause to be arrested the Captains, Officers, Mariners, Sailors, and all other persons, being part of the crews of the vessels of their respective nations, who shall have deserted from the said vessels, in order to send them back and transport them out of the country. For which purpose, the said Consuls and Vice-Consuls shall address themselves to the Courts, Judges, and Officers competent, and shall demand the said deserters in writing, proving by an exhibition of the register of the vessel, or ship's roll, that those men were part of the said crews; and on this demand, so proved, (saving, however, where the contrary is proved) the delivery shall not be refused; and there shall be given all aid and assistance to the said Consuls and Vice-Consuls for the search, seizure, and arrest, of the said deserters, who shall even be detained and kept in the prisons of the country, at their request and expence, until they shall have found an opportunity of sending them back; but if they be not sent back within three months, to be counted from the day of their arrest, they shall be set at liberty, and shall be no more arrested for the same cause." 2Vo. 392.

To the Vice-Consul's demand the Judge answered, "that it was, in his opinion, necessary, before a warrant could issue, that the applicant should prove by the register of the ship, orRoled'Equipage, that CaptainBarrewas, in fact, one of the crew ofLe Perdrix." The Vice-Consul replied, "that the ship's register was not in his possession; but, at the same time, stated various reasons why he should be admitted to produce collateral proof of the fact in question, instead of being obliged to exhibit the ship's register itself; and declared, that in such case, he would give the judge all the proof that could be desired." The Judge persevering in his original opinion on the subject, that "the mode of proof mentioned in the 9th article of the Convention was the only legitimate one, and that he could not dispense with it;" the Vice-Consul obtained a copy of theRoled'Equipage, certified by theFrenchVice-Consul atBoston, under the Consular seal; and transmitted it to the Judge, with another demand for a warrant to arrest Capt.Barre; contending that this copy was entitled to the same respect as the original instrument, by virtue of the 5th article of the Convention, which is in these words:

"ART. 5. The Consuls and Vice-Consuls respectively shall have the exclusive right of receiving in their chancery, or on board of vessels, the declarations and all the other acts, which the Captains, Masters, Crews, Passengers, and Merchants of their nation may chuse to make there, even their testaments and her disposals by last will: And the copies of the said acts, dulyPage 44authenticated by the said Consuls or Vice-Consuls, under the seal of their Consulate, shall receive faith in law, equally as their originals would, in all the tribunals of the dominions of the Most Christian King, and of theUnited States. They shall also have, and exclusively, in case of the absence of the testamentary executor, administrator, or legal heir, the right to inventory, liquidate and proceed to the sale of the personal estate left by subjects or citizens of their nation, who shall die within the extent of their Consulate; they shall proceed therein with the assistance of two merchants of their said nation, or for want of them, of any other at their choice, and shall cause to be deposited in their chancery, the effects and papers of the said estates; and no officer, military, judiciary, or of the police of the country, shall disturb them or interfere therein, in any manner whatsoever: but the said Consuls and Vice-Consuls shall not deliver up the said effects, nor the proceeds thereof, to the lawful heirs, or to their order, till they shall have caused to be paid all debts which the deceased shall have contracted in the country; for which purpose the creditors shall have a right to attach the said effects in their hands, as they might in those of any other individual whatever, and proceed to obtain sale of them till payment of what shall be lawfully due to them. When the debts shall not have been contracted by judgment, deed, or note, the signature whereof shall be known, payment shall not be ordered but on the creditor's giving sufficient surety, resident in the country, to refund the sums he shall have unduly received, principal, interest and costs; which surety nevertheless shall stand duly discharged, after the term of one year in time of peace, and of two in time of war, if the demand in discharge cannot be formed before the end of this term against the heirs who shall present themselves. And in order that the heirs may not be unjustly kept out of the effects of the deceased, the Consuls and Vice-Consuls shall notify his death in some one of the gazettes published within their Consulate, and they shall retain the said effects in their hands four months to answer all demands which shall be presented; and they shall be bound after this delay to deliver to the persons succeeding thereto, what shall be more than sufficient for the demands which shall have been formed." 2Vol. 384.

The Judge, however, declared that "he did not consider the copy of the register, to be the kind of proof designated by the 9th article of the Convention; and that till the proof specified by the express words of the article was exhibited, he could not deem himself authorised to issue a warrant for apprehending CaptainBarre."

Under these circumstances, the Minister of theFrenchRepublicapplied to the Executive of theUnited States, complainingPage 45of the Judge's refusal to issue a warrant against CaptainBarre, as a manifest departure from the positive provisions of the Consular Convention; and the present motion was made, in order to obtain the opinion of the Supreme Court, upon the subject, for the satisfaction of the Minister.

The rule was opposed byIngersoll and W. Tilghman, who contended, I. That the original register of the vessel, or ship'sRoll, was the only admissible evidence under the 9th article of the Convention; and II. That in the present case the Judge has, in fact, given a judgment; and although amandamuswill lie to compel the Judge of an inferior Court, to proceed to give judgment, it will not lie to prescribe what judgment he shall give.

I. The treaty has placed the subject in controversy upon a footing different from the law of nations; for, independent of positive compact, no Government will surrender deserters, or fugitives, who make an asylum of its territory. This, then, is a new law introductory of a new remedy; and whenever a new remedy is so introduced, (more especially in a case so highly penal) it must be strictly pursued. 1Wil. 164. 4Bac. Abr. 647, 651. The 9th article of the Consular Convention, may therefore, be considered in a twofold point of view — 1st. As to the true construction of the words: — and 2d. As to the competency of a copy of the register, or ship'sRoll, to be received in evidence, by any analogy to the common law rules of evidence. — 1st. The words of the article are full and express, that the Consul shall prove the deserters, whose arrest he demands, to be part of the ship's crew, "by an exhibition of the register of the vessel, or ship'sRoll." If those, who drew the instrument, and appear throughout to have perfectly understood the import of the words they used, had not intended to fix a specific mode of proof, a specific mode would not have been mentioned in this case; but the kind of evidence would have been left at large, as in the 14th article, where, in another case, proof of citizenship is to be made,"bylegal evidence."But, in fact, the ship'sRollis the best evidence which the nature of the case admits; and, if any other, is allowed, it must depend upon the mere discretion of the Judge. Theindividualsof theFrenchnation, as well as theRepublic, are interested in the construction of the article; since it deprives them of that protection within our territory, to which they would otherwise be entitled; and their interest becomes peculiarly important, when we consider the existing circumstances of the nation. Besides, whatever inconveniency might flow from this strict construction, if it is the genuine, fixed, meaning of the treaty, the court cannot change it on that account. 4Bac. Abr. 652, 10Mod. 344. The inconveniences, however, are aggravatedPage 46beyond their real force. The cases contemplated, were, obviously, cases of desertion before the vessel left the port, in which it would always be easy to exhibit the register, before a warrant was issued. The act of Congress, vesting this jurisdiction in the District Judges, may, indeed, be too restricted, inasmuch as it does not give each District Judge a power to issue his warrant to all parts of theUnited States, by which the necessity of applying to the Judge of every District, into which a deserter might escape, and the consequent necessity of exhibiting the originalRollon every such application, would be avoided. The inconveniences suggested might therefore be obviated by Congress; and even the government ofFrancemight introduce a remedy, by directing the originalRollin cases of desertion, to be deposited with the Consul, and certified copies to be furnished to the Captains of the respective ships. But it is contended, that admitting the exhibition of the originalRollto be requisite, still it is sufficient to exhibit itbefore theperson is delivered; — it need not be exhibitedbefore thewarrant issues to arrest him. This, however, cannot be the true construction of the article, upon a fair analysis of its different parts. In the first partthe arrestof deserters only is mentioned, "in order to send them back and transport them out of the country;" — then, it is said, "for which purpose(that is, for the purpose of thearrest) the Consuls and Vice-Consuls shall address themselves to the Courts, Judges, and Officers competent, and shall demand the said deserter in writing,proving by an exhibition of the register, or ship's roll, that those men were part of the crew, c. and the clause of delivery follows, providing, that "on this demand, so proved, the delivery shall not be refused." On what, then, is the Judge to ground his warrant, if not on the exhibition of the roll? There is no other proof mentioned in the article; and, certainly, proof of some kind must be made, before the warrant issues. "No warrants shall issue (says the 6th article of the amendment to the Federal Constitution) but upon probable cause, supported by oath, or affirmation:" And in this case, if previous proof has been made, there is nothing to prevent the warrant's containing a clause of immediate delivery; since the deserter is only to be committed and imprisoned at the instance of the Consul. — 2d. If, then, an exhibition of the ship's roll is necessary, the second consideration, arising on the construction of the article, is, whether by analogy to the common law rules of evidence, a copy ought to be received, instead of the original. It is a general rule, that the copy of a deed, or other extraneous proof of its contents, cannot be given in evidence, unless it is first shewn that the original did once exist, and that it had been destroyed or lost, or is in the possession of the adverse party. 1Vez. 389.Esp. Dig. 780. 782. 10Co.Page 4792. In the present case, the only requisite of the rule that is satisfied, establishes the existence of the roll; but proves, at the same time, that it has not been lost or destroyed, and that it is (or at least that it was when the warrant was applied for) in the possessionof the Consul atBoston. So strictly has the rule been adhered to, that even the acknowledgment of the obligor will not be received as evidence that a bond was executed by him; the subscribing witness must be produced.Doug. 205. 4Burr. 2275. As to the inference drawn by the Consul, from the 5th article of the Convention, in support of a copy of the Roll as competent evidence, the article clearly relates to matters transacted by Consuls in virtue of their specified consular powers, but not to the authentication of foreign instruments, deeds, or commissions.

II. But whatever may be the opinion of this court on the construction of the article in question, they cannot interpose bymandamus, to compel the District Judge to adopt their judgment, instead of his own, as the rule of decision, in a case judicially before him. The Supreme Court may, it is true, issue writs ofmandamus, in cases warrantedby the principles and usages oflaw; (1Vol. p. 58.s. 14.) but there is no usage or principle of law to warrant the issuing of amandamusin a case like the present. By the Act of Congress (2Vol. p. 56. the District Judge is appointed the competent judge, for the purposes expressed in the 9th article of the Convention; the Consul applied to him as such; and the Judge refused to issue his warrant, because, in his opinion, the evidence required by the article was not produced. The act of issuing the warrant isjudicial, and notministerial; and the refusal to issue it for want of legal proof, was the exercise ofa judicialauthority. Where any other court hascompetent jurisdiction, the court will not interfere bymandamusto controul it.Esp.Dig. 668. 4Burr. 2295. In a variety of cases the stress is laid on the act beingministerial, and notjudicial. 1Wils. 125. 283.Esp. Dig. 662. 663. 666. 669. 512. 552. 530. 1Stra. 113. 392. 1Vent. 187.T. Raym. 214. 1Bl. Rep. 640. 3Bac. Abr. 531. 1Burr. 131. 4Com. Dig207. 208.Carth. 450. 2Stra. 835.Sayre's Rep. 160. It is justly said, however, that a writ ofmandamusought in all cases to be granted, where the law has provided no specific remedy, though on the principles of justice and good government, there ought to be one.Esp. Dig. 661. 4Com. Dig. 205. And, it has been generally said, that writs ofmandamusare either to restore a person deprived of some corporate, or other franchise, or right; or to admit a person legally entitled. 3Burr. 1267. 2Burr. 1043. or (upon a more extensive basis) to prevent a failure of justice, to enforce the execution of the common law, and to effectuate some statute:Page 48but it has never been allowed as a private remedy for a party, except in cases arising on the 9Ann. c. 20. Nor has it ever been granted to a person who has exercised a discretionary power. 3Bac. Abr. 535. 2Stra. 881. 892.Esp. Dig. 668. 2T.Rep. 338.Esp. Dig. 667. 3Bac. Abr. 536.Andr. 183. Thus, the writ was refused, where a visitor has exercised his jurisdiction, and deprived a person of his office in a college: 1Wils. 206. 4Com. Dig. 209.Andr. 176.Esp. Dig. 667: where commissioners have issued a certificate of bankrupts. 1Atk. 82. 2.Vez. 250. 1Cook. Bank. L. 499. And it should be shewn that the inferior court had made default, for the Superior Court will not presume it.Esp. Dig. 670.Bull. N.P. 199. — Upon the whole of these authorities it appears, that amandamusis founded on the idea of a default; as where an inferior court will not proceed to judgment, or a ministerial officer will not do an act which he ought to do; but there is no instance of amandamusbeing issued to a judge, who has proceeded to give judgment according to the best of his abilities. It ought, likewise, to be observed, that where a fact is doubtful, amandamusnever issues till it is determined by a jury, either on a feigned issue, or on a traverse to the return under the statute: For, how can this court determine what the material fact of the present case is? And if amandamusis issued, what will be the command? — to receive certain evidence, or, at all events, to issue a warrant for apprehending Capt.Barre?If, then, the Supreme Court take the matter up, in the way proposed, they must examine the proof of Capt.Barre'sbeing a deserter; and so make themselves theCourt competent forthis business, contrary to the express meaning and language of the law.
The Attorney General, in reply, premised, that the Executive of theUnited Stateshad no inclination to press upon the Court, any particular construction of the article on which his motion was founded: but as it is the wish of our government to preserve the purest faith with all nations, the President could not avoid paying the highest respect, and the promptest attention, to the representation of the minister ofFrance, who conceived that the decision of the District Judge involved an infraction of the Conventional rights of his Republic. In construing treaties, neither party can claim an exclusive jurisdiction. If either party supposes that there is in the conduct of the other, a departure from the meaning of a treaty, it is the established course in foreign countries, to apply to the government for immediate redress; and, where that application, for any cause, proves ineffectual, the controversy is referred to a negotiation between the powers at variance. In the present case, however, from the nature of the subject, as well as fromPage 49the spirit of our political Constitution, the Judiciary Department is called upon to decide; for it is essential to the independence of that department, that judicial mistakes should only be corrected by judicial authority. The President, therefore, introduces the question for the consideration of the court, in order to insure a punctual execution of the laws; and, at the same time, to manifest to the world, the solicitude of our government to preserve its faith, and to cultivate the friendship and respect of other nations.

I. The question is certainly an interesting and important one: but it ought not to be affected by any circumstances respecting the hardship of CaptainBarre'sfate, or the crisis ofFrenchaffairs. If CaptainBarresuffers any injury, he might, on aHabeas Corpus, be relieved; and no change or fluctuation in the interior policy ofFrance, can release the obligation of our government to perform its public engagements. The case must, therefore, be considered as an abstract case, depending on the fair interpretation of an article in a public treaty. This article contemplates, 1st. the arrest of deserters fromFrenchvessels in our ports — and, 2d. the delivering of those deserters to the Consul, that they may be sent out of the country. Thearrestmay be made on any kind of proof, the oath of witnessesfn*, the confession of the party, or authenticated papers, shewingprima facie, that the person against whom the warrant is demanded, belonged to the crew of aFrenchship. Butthe deliveryis obviously a subsequent act, to be performed after the party has been brought before the Judge; when, not only the allegations against him, but his answers and defence, are heard, and the Judge has decided that he is an object of the article. Natural justice, and the safety of our citizens, require that such a hearing should take place; and it is, indeed, necessarily implied in those words of the article "saving where the contrary is proved;" which point to a time distinct from that of issuing the warrant, when the party was not present, had not been heard, and could not therefore haveproved the contrary, even if such proof were in his power; as by shewing that he never signed the ship's roll, or that he had been lawfully discharged. Neither principle nor analogy to other cases, will justify a call for the original roll, merely toPage 50bring the party to a hearing, whatever strictness of proof may be exacted to warrant his being delivered. InEnglandthe distinction is uniformly recognized: the grounds for issuing a warrant are not strong; for finding an indictment they must be stronger; and for conviction and judgment they are always violent. The construction contended for, in support of the motion, involves no inconveniency; because the Judge must receive a reasonable satisfaction before he issues his warrant; and before he delivers the deserter, he may insist on the exhibition of the roll; but the adverse doctrine is attended with the most embarrassing consequences. Suppose a man deserts just as the vessel fails on a distant voyage, must she return to port? According to the maritime regulations, her Register must remain on board; and, in such a case, a deserter could never be surrendered. Again: — Suppose aFrenchvessel of war takes a prize, puts a part of her crew on board, and sends the prize toAmerica, while she remains herself at sea: the mariners may desert from the prize with impunity, under the very eye of the minister or consul; as the original roll would continue on board the vessel of war. If there are several prizes sent in, the difficulty is proportionally encreased. But all those embarrassments are avoided by a different interpretation of the article: — by allowing the deserters to be arrested, even on a reasonable suspicion, and to be detained 'till proof of their desertion can be procured. The detention, however, could not, under such circumstances, exceed three months, agreeably to the terms of the treaty; and that part of the article seems strongly to presume the vessel to be absent at the time of the arrest, as it provides for his imprisonment until he can be sent out of the country. On the adverse construction, likewise, the article must be deemed to regard as one act, the inspection of the roll, the issuing of the warrant, and the surrender of the deserter; which would operate as a general press warrant, and might become dangerous in the extreme to the liberty of the citizens; for, every man bearing a name enrolled upon the ship's register, would be liable to be arrested and put on board aFrenchvessel, if no hearing took place subsequent to the arrest. Still, however, it is clear, that when the article speaks of a consul's addressing himself to our courts, it is in order to procure assistance "to send the deserters back, and transport them out of the country;" and not merely to obtain an arrest: But the question then arises, whether, even for the purpose of obtaining a delivery of the deserter, there must be an actual production of the register, or ship's roll? Is that the only proof which can be allowed, or is it merely the specification of one mode of proof, without excluding other modes? The article provides for a case in which there shall, peremptorily, be a delivery; butPage 51neither in its terms, nor in its nature, does it preclude a delivery in other cases, where the facts are satisfactorily ascertained by other evidence. The inconveniences of that doctrine would be insurmountable. There must be an original roll to produce in every District, into which a deserter should escape. If the roll were burnt, and all the crew desert, nay, if the deserters themselves were to seize upon and destroy the roll, the Judge is not only under no obligation to arrest and deliver them, but he is precluded from doing so. Such a construction, so destructive of the fair advantages of a public compact, ought not to be tolerated. "All civil laws and all contracts in general, (saysRutherford, 2Inst. B. 2.c. 7.s. 8.p. 327.) are to be so construed as to make them produce no other effect, but what is consistent with reason, or with the law of nature." It is inconsistent with reason, that a provision intended to guard the contracting parties from the inconveniency of the desertion of their mariners, should, in the very mode of expression, defeat itself; and that interpretation, which renders a treaty null and without effect, cannot be admitted.Vatt. B. 2.c. 17.s. 283. 287. 290. Nor is the common law without an analogy, competent to obviate the difficulty; for, wherever an original is eithera record, or ofa public nature, and would be evidence, if produced, an immediate sworn copy will avail. 5Wood. p. 320.Espinasse. As, in the instance of theCottonian Collection, whose papers are not allowed to be sent abroad, a copy is always received in evidence; and since a ship's register must, from the nature of the instrument and the rules of the marine, be on board, the reason is, surely, equally cogent, for receiving a copy of it in proof on any judicial enquiry, when the ship is necessarily at a distance. The opposite argument goes, indeed, to exclude stronger testimony than the roll; for a deserter's confession of the fact, before the Judge, would not be sufficient to dispense with the production of the instrument itself. The Constitutions of theUnited Statesand of the State ofPennsylvania, seem to have made no provision (except the former in the case of treason) for a conviction by the confession of the party; yet, the absurdity of proceeding to try a man for a crime, after he has pleaded guilty to the charge, has been too obvious to receive any sanction from the practice of our courts. But that absurdity is urged as law in the present case. CaptainBarrehad confessed the existence of the roll subscribed by him, and his desertion from the ship, still, it is contended, that the Judge must wait for the exhibition of the roll to prove the fact acknowledged; — "to take a bond of fate; and make assurance doubly sure." This, however, would be a mocking of justice — a palpable evasion of the treaty. It is said, that the surrender of deserters is an act odious on principlesPage 52of humanity, as well as policy; but the remark is not uniformly just. In the case of one army giving encouragement to deserters from another, the surrender would be faithless and iniquitous; but that bears no analogy to the present case; and, in another case, which is analogous to the present, theUnited Stateshave thought it so reasonable and right, that they have directed any deserter, under contract for a voyage, to be apprehended, and delivered to the Captain of the ship —Act Congress, ch. 29.s. 7. passed 20th July, 1790. But the article of the treaty is affirmative, or directory, and not negative; and the distinction in construing laws so distinguished could never be more properly enforced. Thus, though the statute ofHenryfor holding the Quarter Sessions, prescribes a particular day, the court being held on another day, it was deemed valid. So, where a day was fixed by the act for appointing overseers of the poor, the appointment was good, tho' made on another day. Upon the whole, the proof given and tendered in this case, was, 1st, the warrant of the District Judge ofPennsylvania, which, on common law principles, would be sufficient to procure the indorsement or warrant of any other Judge; — 2d, the official letters and statement of CaptainBarre, proving the fact, as conclusively to every purpose of truth and justice, as the exhibition of his signature to the ship's roll; and being, in effect, a written confession, a species of proof which is admitted even in the case of treason: — and 3d, a copy of the ship's roll certified by the Vice-Consul. This ought not, perhaps, to be regarded as complete evidence under the 5th article of the Convention, which seems only to relate to acts made before, or taken in the presence of, the Consul. It is, however, entitled to, at least, as much respect as aNotarial Certificate, which commands full faith in all commercial countries.

II. If, then, the Judge ought not to have refused a warrant for apprehending CaptainBarre, this Court ought to compel him to grant one, by issuing amandamus. The general principle of issuing that writ, is founded on the necessity of affording a competent remedy for every right; and it constrains all inferior Courts to perform their duty, unless they are vestedwith adiscretion. Esp. 3Burr. 1267. The Treaty is the supreme law of the land; and if an absolute discretion is given to the District Judge, it is conceded, that this Court cannot interpose to controul and decide it. But much will depend on the nature of the discretion given to the Judge; since a legal discretion is sometimes as much implied in the exercise of a ministerial, as in the exercise of a judicial function. In the present case the Treaty contemplates an arrest, and a delivery of the deserter: it may, therefore, be considered as one thingPage 53to issue the warrant, and as another, very different in nature and jurisdiction, to decide upon a hearing of the parties. InStra. 881, amandamuswas refused, because the granting of a licence wasdiscretionaryin the Justices: but wherever an Act of Parliament peremptorily directs a thing to be done, though it should be of a Judicial nature, if no discretion is vested in the inferior officer or Court, amandamuswill lie. Thus, the acts of the Judge of Probates, c. are judicial acts; yet, as the Act of Parliament declares that administration shall be granted to the next of kin, amandamuswill issue directing the administration to be granted to the next of kin, and if it appears on the return that A.B. is next of kin, amandamuswill issue to grant it to him. 1Stra. 42, 93, 211. If the District Judge had returned, that he was of opinion, that CaptainBarrewas not a deserter, it might have been sufficient; but he has returned that he would not examine the evidence, because it was not evidence. Suppose the ship's Roll had been exhibited, and the Judge had refused to issue the warrant, because it appeared that Capt.Barrehad taken the oath of citizenship, would not amandamusissue under such circumstances? 4Burr. 1991. 2Stra. 992. But issuing the warrant is merely aministerialact, and where words are so strongly directory as in the article of the Treaty, without any express investment of discretion, amandamushas always been awarded. 1Wils. 283. 1Black.Rep. 640. 1Stra. 553. 113.Doug. 182. Though the Commissioners returned, that theyhad reason to doubt(pursuing the words of the law ofPennsylvania, 2Vol. Dall. Edit. p. 494) the truth of the Bankrupt's conformity, the Supreme Court at first hesitated, whether amandamusought not to issue, though it was eventually refused, on the ground of the discretion, which the law gave to the Commissioners. But one great ingredient in the exercise of this controuling jurisdiction, bymandamus, is, that there exists no other specific remedy for the party, and that upon the principles of justice and good government, he ought to have one. 2Burr. 1045. 3Burr. 1266, 1659. 4Burr. 2188. In the present case, the District Judge is the only competent Judge to issue the warrant; and a writ of Error cannot be brought merely upon his refusal to institute the process.
BY THE COURT:
We are clearly and unanimously of opinion, that amandamusought not to issue. It is evident, that the District Judge was acting in a judicial capacity, when he determined, that the evidence was not sufficient to authorize his issuing a warrant for apprehending CaptainBarre: and (whatever might be the difference of sentiment entertained by this Court) we have no power to compel a Judge to decide according to the dictates of any judgment, but his own. It isPage 54unnecessary, however, to declare, or to form, at this time, any conclusive opinion, on the question which has been so much agitated, respecting the evidence required by the 9th article of the Consular Convention.

The Rule discharged.
  1. Page 49 WILSON,Justice. Does it appear that any oath was taken in this case?Bradford: — No: A warrant, which had been issued by the District Judge ofPennsylvania— various official letters, — and CaptainBarre'sown statement, were offered to be produced; but the point was put by the Judge on the necessity of producing the original roll, in exclusion of every other species of testimony. This, therefore, is the only question before the Court. ↩