below, supposes himself entitled to a pre-emptive interest in a tract of land in the State of Ohio, and claims of the register of the land office of the United States, the legal acts and documents upon which such rights are initiated. That officer refuses, under the idea, that the right is already legally vested in another; and that he possesses, himself, no power over the subject in controversy. A mandamus is then moved for in the Circuit Court of the United States, and that Court decides, that Congress has vested it with no such controlling power over the acts of the ministerial officers in the given case. The same application is then preferred to the State Court for the county in which the subject in controversy is situated. The State Court sustains its own jurisdiction over the register of the land office, but on a view of the merits of the claim, dismisses the motion. From both these decisions appeals are made to this Court, in form of a writ of error. In the case of M'Intire v. Wood," decided in this Court, in 1813, the mandamus contended for was intended to perfect the same claim, and in point of fact the suit was between the same parties. The influence of that decision on these cases, is resisted, on the ground, that it did not appear in that case, that the controversy was between parties who, under the description of person, were entitled to maintain suits in the Courts of the United States; whereas, the averments in the present cases show, that the parties litigant are citizens of different States, and, a 7 Cranch, 504. 1821. M'Clung V. Silliman. 1821. McClung V. Silliman. therefore, competent parties in the Circuit Court. But we think it perfectly clear, from an examination of the decision alluded to, that it was wholly uninfluenced by any considerations drawn from the want of personal attributes of the parties. The case came up on a division of opinion, and the single question stated is, "whether that Court had power to issue a writ of mandamus to the register of a land office in Ohio, commanding him to issue a final certificate of purchase to the plaintiff for certain lands in the State ?" Both the argument of counsel, and the opinion of the Court, distinctly show, that the power to issue the mandamus in that case, was contended for as incident to the judicial powers of the United States. And the reply of the Court is, that though, argumenti gratia, it be admitted, that this controlling power over its ministerial officers, would follow from vesting in its Courts the whole judicial power of the United States, the argument fails here, since the legislature has only made a partial delegation of its judicial powers to the Circuit Courts; that if the inference be admitted as far as the judicial power of the Court actually extends, still, cases arising under the laws of the United States, are not, per se, among the cases comprised within the jurisdiction of the Circuit Court, under the provisions of the 11th section; jurisdiction being in such cases reserved to the Supreme Court, under the 25th section, by way of appeal from the decisions of the State Courts. There is, then, no just inference to be drawn from the decision in the case of M'Intire v. Wood, in fa vour of a case in which the Circuit Courts of the United States are vested with jurisdiction under the 11th section. The idea is in opposition to the express words of the Court, in response to the question stated, which are," that the Circuit Court did not possess the power to issue the mandamus moved for." It is now contended, that as the parties to this controversy are competent to sue under the 11th section, being citizens of different States, that this is a case within the provisions of the 14th section, and the Circuit Court was vested with power to issue this writ, under the description of a "writ not specially provided for by statute," but "necessary for the exercise of its jurisdiction." The case certainly does present one of those instances of equivocal language, in which the proposition, though true in the abstract, is in its application to the subject glaringly incorrect. It cannot be denied, that the exercise of this power is necessary to the exercise of jurisdiction in the Court below; but why is it neces? Not because that Court possesses jurisdicsary tion, but because it does not possess it. It must exercise this power, and compel the emanation of the legal document, or the execution of the legal act by the register of the land office, or the party cannot sue. The 14th section of the act under consideration, could only have been intended to vest the power now contended for, in cases where the jurisdiction already exists, and not where it is to be courted or 1821. McClung V. Silliman. 1821. M'Clung Silliman. acquired, by means of the writ proposed to be sued out. Such was the case brought up from Louisiana, in which the judge refused to proceed to judgment, by which act, the plaintiff must have lost his remedy below, and this Court have been deprived of its appellate control, over the question of right. The remaining questions bear a striking analogy to that already disposed of. The State Court having decided in favour of its own jurisdiction over the register, the appellant, so far, had nothing to complain of. It is only where a State Court decides against the claim set up under the laws of the United States, that appellate jurisdiction is given from the State decisions. But in the next step of his progress, he was not equally fortunate. The State Court rejected his application on the merits of his claim, and appear to have decided that an entire section might be divided into fractions, Of this by the river Muskingum, in a legal sense. he now complains, and contends that the decision is contrary to the laws of the United States. From this state of facts, the following embarrassment arises. The United States officer, the defendant, can have no inducement to contest a jurisdiction that has given judgment in his favour: and the plaintiff in error must sustain its jurisdiction, or relinquish all claim to the relief sought for through its agency. And thus this Court, with its eyes open to the defect in the jurisdiction of the Court below, is called upon to take cognizance of the merits of the question, both parties being thus equally interested, in sustaining the jurisdiction asserted by that Court. Let the course which this Court ought to pursue, be tested by consequences. The alternative is to give judgment for or against the plaintiff. If it be given for him, this Court must invoke that Court to issue the writ demanded, or pursuing the alternative given by the 25th section, it must itself proceed to execute the judgment which that Court ought to have given. Or, in other words, to issue the writ of mandamus, in a case to which it is obvious that neither the jurisdiction of that Court, nor this, extends. No argument can resist such an obvious deductio in absurdum. It is not the first time that this Court has encountered similar difficulties, in its advance to questions brought up from other tribunals. It has avoided them by deciding that it is not bound to encounter phantoms. The party who proposes to avail himself of a defective jurisdiction, has nothing to complain of, if he is left to take the consequences. His antagonist might have had cause to complain-he can have none. And, notwithstanding express evidence of the contrary, this Court feels itself sanctioned, in referring the decision of the State Court, in this case, to the ground on which it ought to have been made, instead of that on which it appears to have been made. The question before an appellate Court is, was the judgment correct, not the ground on which the judgment professes to proceed. Whether a State Court generally possesses a power to issue writs of mandamus, or what modifications of its powers may be imposed on it, by the laws which constitute it, it is correctly argued, that this Court 1821. M⭑Clung V. 1 Silliman. |