Page:Hawkins v. Governor.pdf/3

572 is "the authority given to the Supreme Court, by the act establishing the Judicial Courts of the United States, to issue writs of mandamus to public officers, appears to be warranted by the constitution," 283.

This one point comes undoubtedly within the doctrine of stare decrisis. and so far precedent. But here the idea of a precedent ends, and the remainder is but an obiter—an opinion entitled to respect only, as the emanation of it towering and philosophic mind; No one can be more ready to admit, that as a a man; Chief Justice-Marshall embllished society as a judge; illuminated the bench. But the most found sagacity may err; and as said by Blackstone—the law and the opinion of the Judge are not always convertible terms, or one and the same thing, since it sometimes may happen that, the Judge, may mistake the law, and the decision is then not bad law merely, but no law at all. The court disclaimed the right to issue a mandamus, because the grant Of power was unconstitutional. If there was no jurisdiction, how could it, be rightfully. determined whether a mandamus could be awarded in a supposed ease? Does it' not present a strange anomaly for a Judge. to-say that he has not jurisdiction, and still declare what the court might or would do it had, Can any such opinion be a precedent fit to be-referred to as binding, to say nothing of its indelicacy?

Questions of jurisdiction reach. the very foundation of the authority of courts, to take judicial cognizance of -a ease, and if they cannot, in the Appropriate language of the law, hear and determine it, the cause is coram non judice, and every thing done is a nullity. What principles can be settled except such as relate to the jurisdiction of the court? None: Every thing else 'is within the description of obiter dictum, and is not, therefore, to be regarded as evidence of the law.

The reasoning or facts of such an opinion may be looked to in the investigation of a similar subject, for the purpose of sharpening the intellect, but can never be cited in a court of law as a judicial precedent. Technically speaking; there are nothing like facts in issue, Upon which the judgment of law can be rendered.

A mandamus cannot issue at all to the Executive Of the State.

First: Because, by article third of the constitution of Arkansas, the powers of the state government are divided into three distinct depart- ments, each of them to be, confined to a separate body of magistracy —those which are legislative to one, those which are executive to another, and those which are judicial to another. Out of an abun,