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tribunal nor the circuit courts of the United States held within the respective states, possess the power in question; but it is now held that this power, denied to both of these high tribunals, (to the former by the constitution, and to the latter by Congress,) has been, by its legislation, vested in the circuit court of this district. No such direct grant of power to the circuit court of this district is claimed; but it has been held to result, by necessary implication, from several sections of the law establishing the court. One of ihese sections declares, that the laws of Maryland, as they existed at the time of the cession, should be in force in that part of the district ceded by that state; and, by this provision, the common law, in civil and criininal cases, as it prevailed in Maryland in 1801, was established in that part of the district.
In England, the court of king's bench — because the sovereign, who, according to the theory of the constitution, is the fountain of justice, originally sat there in personi
, and is still deemed to be present, in construction of law - alone possesses the high power of issuing the writ of mandamus, not only to inferior jurisdictions and corporations, but also to magistrates and others, commanding them, in the king's name, to do what their duty requires, in cases where there is a vested right, and no other specific remedy. It has been held, in the case referred to, that, as the supreme court of the United States is, by the constitution, rendered incompetent to exercise this power, and as the circuit court of this district is a court of general jurisdiction in cases at common law, and the highest court of original jurisdiction in the district, the right to issue the writ of mandamus is incident to its common law powers. Another ground relied upon to maintain the power in question, is, that it was included, by fair construction, in the poiver it granted to the circuit courts of the United States, by the act “ to provide for The more convenient organization of the courts of the United States," passed 13th of February, 1801; that the act establishing the circuit court of this district. passed the 27th of February, 1801, conferred upon that court and the judges thereof the same powers as were by law vested in the circuit courts of the United States and in the judges of the said courts; that the repeal of the first-mentioned act, which took place in the next year, did not divest the circuit court of this district of the authority in dispute, but left it still clothed with the powers over the subject which, it is conceded, were taken away from the circuit courts of the United States by the repeal of the act of 13th February, 1801.
Admitting that the adoption of the laws of Maryland for a portion of this district confers on the circuit court thereof, in that portion, the transcendent extra-judicial prerogative powers of the court of king's bench, in England, or that either of the acts of Congress, by necessary implication, authorizes the former court to issue a writ of mandamus to an officer of the United States, to compel him to perform a ministerial duty, the consequences are in one respect the same. The result in either case is, that the officers of the United States, stationed in different parts of the United States, are, in tes pect to the performance of their official duties, subject to different laws and a different supervision; those in the states to one rule, and those in the District of Columbia to another, and a very different one. In the district their official conduct is subject to a judicial control from which in the state they are exempt
Whatever difference of opinion may exist as to the expediency of vesting such a power in the judiciary, in a system of government constituted like
like that of the United States, all must agree that these disparaging discrepancies in the law and in the administration of justice, ought not to be per. mitted to continue; and as Congress alone can provide the remedy, the subject is unavoidably presented to your consideration.
THIRD ANNUAL MESSAGE.
DECEMBER 2, 1839.
Fellow Citizens of the Senate and House of Representatives :
I REGRET that I cannot on this occasion congratulate you that the past year has been one of unalloyed prosperity. The ravages of fire and disease have painfully afflicted otherwise flourishing portions of our country; and serious embarrassments yet derange the trade of many of our cities. But, notwithstanding these adverse circumstances, that general prosperity which has been heretofore so bountifully bestowed upon us by the Author of all good, still continues to call for our warmest gratitude. Especially have we reason to rejoice in the exuberant harvests which have lavishly recompensed well-directed industry, and given to it that sure reward which is vaidly sought in visionary speculations. I cannot indeed view without peculiar satisfaction, the evidences afforded by the past season of the benefits that spring from the steady devotion of the husbandman to his honorable pursuit. No means of individual comfort is more certain, and no source of national prosperity is so sure. Nothing can compensate a people for a dependence upon others for the bread they eat; and that cheerful abundance on which the happiness of every one so much depends, is to be looked for nowhere with such sure reliance as in the industry of the agriculturist and the bounties of the earth.
With foreign countries, our relations exhibit the same favorable aspect which was presented in my last annual message, and afford continued proof of the wisdom of the pacific, just, and forbearing policy adopted by the first administration of the federal government, and pursued by its successors. The extraordinary powers vested in me by an act of Congress, for the defence of the country in an emergency, considered so far probable as to require that the executive should possess ample means to meet it, have not been exerted. They have, therefore, been attended with no other result than to increase, by the confidence thus reposed in me, my obligations to maintain, with religious exactness, the cardinal principles that govern our inter. course with other nations. Happily, in our pending questions with Great Britain, out of which this unusual grant of authority arose, nothing has occurred to require its exertion; and as it is about to return to the legislature, I trust that no future necessity may call for its exercise by them, or its delegation to another department of the government.
For the settlement of our northeastern boundary, the proposition promised by Great Britain for a commission of exploration and survey, has been received, and a counter project, including also a provision for the certain and final adjustment of the limits in dispute, is now before the British government for its consideration. A just regard to the delicate state of this question, and a proper respect for the natural impatience of the state of Maine, not less than a conviction that the negotiation has been already protracted
longer than is prudent on the part of either government, have led me to believe that the present favorable moment should on no account be suffered to pass without putting the question for ever at rest. I feel confident that the government of her Britannic Majesty will take the same view of this subject, as I am persuaded it is governed by desires equally strong and sincere for the amicable termination of the controversy.
To the intrinsic difficulties of questions of boundary lines, especially those described in regions unoccupied, and but partially known, is to be added in our country the embarrassment necessarily arising out of our constitution, by which the general government is made the organ of negotiating and deciding upon the particular interests of the states on whose frontiers these lines are to be traced. To avoid another controversy in which a state government might rightfully claim to have her wishes consulted, previously to the conclusion of conventional arrangements concerning her rights of jurisdiction or territory, I have thought it necessary to call the attention of the government of Great Britain to another portion of our conterminous dominion, of which the division still remains to be adjusted. I refer to the line from the entrance of Lake Superior to the most northwestern point of the Lake of the Woods, stipulations for the settlement of which are io be found in the seventh article of ihe treaty of Ghent. The commissioners appointed under that article by the iwo governments having differed in their opinions, made separate reports, according to its stipulations, upon the points of disagreement, and these differences are now to be submitted to the arbitration of some friendly sovereign or state. The disputed points should be settled, and the line designated, before the territorial government of which it is one of the boundaries, takes its place in the Union as a state, and I rely upon the cordial co-operation of the British government to effect that object.
There is every reason to believe that disturbances like those which lately agitated the neighboring British Provinces will not again prove the sources of border contentions, or interpose obstacles to the continuance of that good understanding which it is the mutual interest of Great Britain and the United States to preserve and maintain.
Within the Provinces themselves tranquillity is restored, and on our frontier that misguided sympathy in favor of what was presumed to be a general effort in behalf of popular rights, and which in some instances misled a few of our more inexperienced citizens, has subsided into a rational conviction strongly opposed to all intermeddling with the internal affairs of our neighbors. The people of the United States feel, as it is hoped they always will
, a warm solicitude for the success of all who are sincerely endeavoring to improve the political condition of mankind. This generous feeling they cherish toward the most distant nations; and it was natural, therefore, that it should be awakened with more than common warinth in behalf of their immediate neighbors. But it does not belong to their character, as a community, to seek the gratification of those feelings in acts which violate their duty as citizens, endanger the peace of their country, and tend to bring upon it the stain of a violated faith ioward foreign nations. If, zealous to confer benefits on others, they appear for a moment to lose sight of the permavent obligations imposed upon them as citizens, they are seldom long misled. From all the information I receive, confirmed to some extent by personal observation, I am satisfied that no one can now hope lo engage in such enterprises without encountering public indignation, in addition to the severest penalties of the law.
Recent information also leads me to hope that the emigrants from her Majesty's Provinces, who have sought refuge within our boundaries, are disposed to become peaceable residents, and to abstain from all attempts to endanger the peace of that country which has afforded them an asylum. On a review of the occurrences on both sides of the line, it is satisfactory to reflect, that in almost every complaint against our country, the offence may be traced to emigrants from the Provinces who have sought refuge here. In the few instances in which they were aided by citizens of the United States, the acts of these misguided men were not only in direct contravention of the laws and well-known wishes of their own government, but met with the decided disapprobation of the people of the United States. I regret to state the appearance of a different spirit among her Majesty's subjects in the Canadas. The sentiments of hostility to our people and institutions, which have been so frequently expressed there, and the disregard of our rights which has been manifested on some occasions, have, I am sorry to say, been applauded and encouraged by the people, and even by some of the subordinate local authorities, of the Provinces. The chief officers in Canada fortunately have not entertained the same feeling, and have probably prevented excesses that must have been fatal to the peace of the two countries. I look forward anxiously to a period when all the transactions which have grown out of this condition of our affairs, and which have been made, the subjects of complaint and remonstrance by the two governments respectively, shall be fully examined, and the proper satisfaction given where it is due from either side. Nothing has occurred to disturb the harmony of our intercourse with Austria, Belgium, Denmark, France, Naples, Portugal, Prussia, Russia, or Sweden. The internal state of Spain has sensibly improved, and a wellgrounded hope exists that the return of peace will restore to the people of that country their former prosperity, and enable the government to fulfil all its obligations at home and abroad. The government of Portugal, I have the satisfaction to state, has paid in full the eleventh and last instalment due to our citizens for the claims embraced in the settlement made with it on the 3d of March, 1837. - I lay before you treaties of commerce negotiated with the Kings of Sardinia and of the Netherlands, the ratifications of which have been exchanged since the adjournment of Congress. The liberal principles of these treaties will recommend them to your approbation. That with Sardinia is the first treaty of commerce formed by that kingdom, and it will, I trust, answer the expectations of the present sovereign, by aiding the development of the resources of his country, and stimulating the enterprise of his people. That with the Netherlands happily terminates a long existing subject of dispute, and removes from our future commercial intercourse all apprehension of embarrassment. The King of the Netherlands has also, in farther illustration of his character for justice, and of his desire to remove every cause of dissatisfaction, made compensation for an American vessel captured in 1800 by a French privateer, and carried into Curaçoa, where the proceeds were appropriated to the use of the colony, then, and for a short time after, under the dominion of Holland. The death of the late Sultan has produced no alteration in our relations with Turkey. Our newly appointed minister resident has reached Constantinople, and I have received assurances from the present ruler that the
obligations of our treaty and those of friendship will be fulfilled by himself in the same spirit that actuated his illustrious father.
I regret to be obliged to inform you that no convention for the settlement of the claims of our citizens upon Mexico has yet been ratified by the goveryment of that country. The first convention formed for that purpose was not presented by the President of Mexico for the approbation of its Congress, from a belief that the King of Prussia, the arbitrator in case of disagreement in the joint commission to be appointed by the United States and Mexico, would not consent to take upon himself that friendly office. Although not entirely satisfied with the course pursued by Mexico, I felt no hesitation in receiving in the most conciliatory spirit the explanation offered, and also cheerfully consented to a new convention, in order to arrange the paymenis proposed to be made to our citizens in a manner which, while equally just to them, was deemed less onerous and inconvenient to the Mexican government. Relying confidently upon the intentions of that government, Mr. Ellis was directed to repair to Mexico, and diplomatic intercourse has been resumed between the two countries. The new convention has, he informs us, been recently submitted by the President of that republic to its Congress, under circumstances which promise a speedy ralification; a result which I cannot allow myself to doubt.
Instructions have been given to the Commissioner of the United States under our convention with Texas, for the demarcation of the line which separates us from that Republic. The commissioners of both governments met in New Orleans in August last. The joint commission was organized and adjourned to convene at the same place on the twelfth of October. It is presumed to be now in the performance of its duties.
The new government of Texas has shown its desire to cultivate friendly relations with us, by a prompt reparation for injuries complained of in the cases of two vessels of the United States.
With Central America a convention has been concluded for the renewal of its former treaty with the United States. This was not ratified before the departure of our late chargé d'affaires from that country, and the copy of it brought by him was not received before the adjournment of the Senate at the last session. In the meanwhile, the period limited for the exchange of ratifications having expired, I deemed it expedient, in consequence of the death of the chargé d'affaires, to send a special agent to Central America, to close the affairs of our mission there, and to arrange with the government an extension of the time for the exchange of ratifications.
The commission created by the states which formerly composed the Republic of Colombia, for adjusting the claims against that government
, has, by a very unexpected construction of the treaty under which it acts, decided that no provision was made for those claims of citizens of the United States which arose from captures by Colombian privateers, and were adjudged against the claimants in the judicial tribunals. This decision will compel the United States to apply to the several governments formerly united for redress. With all these New Grenada, Venezuela, and Ecusdor, a perfectly good understanding exists. Our treaty with Venezuela is faithfully carried into execution, and that country, in the enjoyment of tranquillity, is gradually advancing to prosperity under the guidance of ils present distinguished President, General Paez. With Ecuador, a liberal commercial convention has lately been concluded, which will be transmitted to the Senate at an early day.