Page:The Supreme Court in United States History vol 1.djvu/270

242 ful that in such a case as this the assertion, by an individual, of his legal claims in a Court of Justice, to which claims it is the duty of that Court to attend, should at first view be considered by some, as an attempt to intrude into the Cabinet, and to intermeddle with the prerogatives of the Executive. It is scarcely nec- essary for the Court to disclaim all pretensions to such jurisdiction. An extravagance, so absurd and exces- sive, could not have been entertained for a moment. The 'province of the Court is, solely, to decide on the rights of individuak, not to enquire how the Executive, or Executive officers, perform duties in which they have a discretion." After giving thorough consideration to the question whether the case might be a proper one for mandamus, and having arrived at the conclusion that the petitioner possessed rights which he was entitled to have protected by such form of legal pro- cess, the Chief Justice took up the crucial question in the case : was there any statute authorizing the Court in the exercise of original jurisdiction to issue writ of mandamus, and if so, was such a statute valid ? Clearly, if there was no such valid statute, the Court had no jurisdiction. It seems plain, at the present time, that it would have been possible for Marshall, if he had been so inclined, to have construed the lan- guage of the section of the Judiciary Act which author- ized writs of mandamus, in such a manner as to have enabled him to escape the necessity of declaring the section unconstitutional. The section was, at most, broadly drawn, and was not necessarily to be inter- preted as conferring original jurisdiction on the Court. ^ If, however, it was to be so construed, as the Court


 * The Supreme Court-Usurper or Oraniee, by Charles A. Beard, Pol, Sou Qu. (1912), XXVII. The section authorized the Supreme Court "to issue writs of mandamus in cases warranted by the principles and usages of law, to any Coorts ai^inted* or persons holding office, under the authority of the United States."