At present the court will only decide on a previous question made by the attorney-general on behalf of the commonwealth, viz: Has the court jurisdiction of the motion ?

*218By our constitution, the court of appeals is invested with appellate jurisdiction only, and it is not, and can not be invested by the legislature with power to issue a mandamus, unless it be an appellate process. In England, a question of this kind could never be of any importance, because the power is there confined to the court of king’s bench, which is invested both with original and appellate jurisdiction; and, therefore, no immediate light on the question need be expected from the law books of that country, but it must depend on general principles. This court conceives that just cause for a mandamus is confined to cases where, on application, a public person, or public body, has refused to do that which, in his or their executive or judicial capacity, they were by law required to do. If this be a correct view of the case, an application to a superior tribunal to compel performance must be an appeal, or in the nature of an appeal. But if this be'doubtful, the reverse seems to be equally doubtful; which makes it proper, in the decision, to have regard to political considerations. All must agree that the power in question would be more safely and advantageously confided to the supreme court, than to any other. Not to mention that the time was when, if the court of apj>eals had not exercised this power, all the courts in the state would have been left without this salutary cheek, and it would still continue to be the case as to all our superior courts. There is, however, another consideration of still greater weight. This question, on solemn argument and much consideration, in the year 1794, was decided in favor of the jurisdiction of the court of appeals, in the case of Kennedy against The Justices of Madison County, and it has since repeatedly exercised the power; so that the court now considers itself bound by its former decisions: more especially, as at any time the legislature can divest the court of the power, or restrict it as they may judge expedient.