WILLIAM MARBURY v. JAMES MADISON,
SECRETARY OF STATE OF THE UNITED STATES.
SUPREME COURT OF THE UNITED STATES
5 U.S. 137; 1803 U.S. LEXIS 352; 2 L. Ed. 60; 1 Cranch 137
FEBRUARY, 1803 Term
PRIOR HISTORY: [**1]
AT the last term, viz. December term, 1801, William Marbury, Dennis Ramsay,
Robert Townsend Hooe, and William Harper, by their counsel, Charles Lee, esq.
late attorney general of the United States, severally moved the court for a
rule to James Madison, secretary of state of the United States, to show cause
why a mandamus should not issue commanding him to cause to be delivered to them
respectively their several commissions as justices of the peace in the district
of Columbia. This motion was supported by affidavits of the following facts;
that notice of this motion had been given to Mr. Madison; that Mr. Adams, the
late president of the United States, nominated the applicants to the senate for
their advice and consent to be appointed justices of the peace of the district
of Columbia; that the senate advised and consented to the appointments; that
commissions in the due form were signed by the said president appointing them
justices, &c. and that the seal of the United States was in due form
affixed to the said commissions by the secretary of state; that the applicants
have requested Mr. Madison to deliver them their said commissions, who has not
complied with that request; and that [**2] their said commissions
are withheld from them; that the applicants have made application to Mr.
Madison as secretary of state of the United States at his office, for
information whether the commissions were signed and sealed as aforesaid; that
explicit and satisfactory information has not been given to that enquiry,
either by the secretary of state or by any officer of the department of state;
that application has been made to the secretary of the Senate for a certificate
of the nomination of the applicants, and of the advice and consent of the
senate, who has declined giving such a certificate; whereupon a rule was laid
to show cause on the 4th day of this term.
[arguments of counsel omitted]
OPINIONBY: MARSHALL
[*153] [***66] Afterwards, on the 24th of February the
following opinion of the court was delivered by the chief justice.
Opinion of the court.
At the last term on the affidavits then read and filed with the clerk, a rule
was granted in this case, requiring the secretary of state to show cause why a
mandamus [*154] should not issue, directing him to deliver to
William Marbury his commission as a justice of the peace of the county of
Washington, in the district of Columbia.
No cause has been shown, and the present motion is for a mandamus.
[**32] The peculiar delicacy of this case, the novelty of some of
its circumstances, and the real difficulty attending the points which occur in
it, require a complete exposition of the principles, on which the opinion to be
given by the court, is founded.
These principles have been, on the side of the applicant, very ably argued at
the bar. In rendering the opinion of the court, there will be some departure in
form, though not in substance, from the points stated in that argument.
In the order in which the court has viewed this subject, the following
questions have been considered and decided.
1st. Has the applicant a right to the commission he demands?
2dly. If he has a right, and that right has been violated, do the laws of his
country afford him a remedy?
3dly. If they do afford him a remedy, is it a mandamus issuing from this court?
The first object of enquiry is,
1st. Has the applicant a right to the commission he demands?
His right originates in an act of congress passed in February, 1801, concerning
the district of Columbia.
After dividing the district into two counties, the 11th section of this law,
enacts, "that there shall be appointed in and for [**33] each
of the said counties, such number of discreet persons to be justices of the
peace as the president of the United States shall, from time to time, think
expedient, to continue in office for five years.
[*155] It appears, from the affidavits, that in compliance with
this law, a commission for William Marbury as a justice of peace for the county
of Washington, was signed by John Adams, then president of the United States;
after which the seal of the United States was affixed to it; but the commission
has never reached the person for whom it was made out.
In order to determine whether he is entitled to this commission, it becomes
necessary to enquire whether he has been appointed to the office. For if he has
been appointed, the law continues him in office for five years, and he is
entitled to the possession of those evidences of office, which, being
completed, became his property.
The 2d section of the 2d article of the constitution, declares, that "the
president shall nominate, and, by and with the advice and consent of the
senate, shall appoint ambassadors, other public ministers and consuls, and all
other officers of the United States, whose appointments are not
[**34] otherwise provided for."
The third section declares, that "he shall commission all the officers of
the United States."
An act of congress directs the secretary of state to keep the seal of the
United States, "to make out and record, and affix the said seal to all
civil commissions to officers of the United States, to be appointed by the
President, by and with the consent of the senate, or by the President alone;
provided that the said seal shall not be affixed to any commission before the
same shall have been signed by the President of the United States."
These are the clauses of the constitution and laws of the United States, which
affect this part of the case. They seem to contemplate three distinct
operations:
1st, The nomination. This is the sole act of the President, and is completely
voluntary.
2d. The appointment. This is also the act of the President, and is also a voluntary
act, though it can only be performed by and with the advice and consent of the
senate.
[*156] 3d. The commission. To grant a commission to a person
appointed, might perhaps be deemed a duty enjoined by the constitution.
"He shall," says that instrument, "commission all the officers
[**35] of the United States."
The acts of appointing to office, and commissioning the person appointed, can
scarcely be considered as one and the same; since the power to perform them is
given in two separate and distinct sections of the constitution. The
distinction between the appointment and the commission will be rendered more
apparent, by [***67] adverting to that provision in the second
section of the second article of the constitution, which authorizes congress
"to vest, by law, the appointment of such inferior officers, as they think
proper, in the President alone, in the courts of law, or in the heads of
departments;" thus contemplating cases where the law may direct the
President to commission an officer appointed by the courts, or by the heads of
departments. In such a case, to issue a commission would be apparently a duty
distinct from the appointment, the performance of which, perhaps, could not
legally be refused.
Although that clause of the constitution which requires the President to
commission all the officers of the United States, may never have been applied
to officers appointed otherwise than by himself, yet it would be difficult to
deny the legislative power [**36] to apply it to such cases. Of
consequence the constitutional distinction between the appointment to an office
and the commission of an officer, who has been appointed, remains the same as
if in practice the President had commissioned officers appointed by an
authority other than his will.
It follows too, from the existence of this distinction, that, if an appointment
was to be evidenced by any public act, other than the commission, the
performance of such public act would create the officer; and if he was not
removable at the will of the President, would either give him a right to his
commission, or enable him to perform the duties without it.
These observations are premised solely for the purpose of rendering more
intelligible those which apply more directly to the particular case under
consideration.
[*157] This is an appointment by the President, by and with the
advice and consent of the senate, and is evidenced by no act but the commission
itself. In such a case therefore the commission and the appointment seem
inseparable; it being almost impossible to show an appointment otherwise than
by proving the existence of a commission; still the commission is not
necessarily [**37] the appointment; though conclusive evidence of
it.
But at what state does it amount to this conclusive evidence?
The answer to this question seems an obvious one. The appointment being the
sole act of the President, must be completely evidenced, when it is shown that
he has done every thing to be performed by him.
Should the commission, instead of being evidence of an appointment, even be
considered as constituting the appointment itself; still it would be made when
the last act to be done by the President was performed, or, at furthest, when
the commission was complete.
The last act to be done by the President, is the signature of the commission.
He has then acted on the advice and consent of the senate to his own
nomination. The time for deliberations has then passed. He has decided. His
judgment, on the advice and consent of the senate concurring with his
nomination, has been made, and the officer is appointed. This appointment is
evidenced by an open, unequivocal act; and being the last act required from the
person making it, necessarily excludes the idea of its being, so far as
respects the appointment, an inchoate and incomplete transaction.
Some point of [**38] time must be taken when the power of the
executive over an officer, not removable at his will, must cease. That point of
time must be when the constitutional power of appointment has been exercised.
And this power has been exercised when the last act, required from the person
possessing the power, has been performed. This last act is the signature of the
commission. This idea seems to have prevailed with the legislature, when the act
passed, converting the department [*158] of foreign affairs into
the department of state. By that act it is enacted, that the secretary of state
shall keep the seal of the United States, "and shall make out and record,
and shall affix the said seal to all civil commissions to officers of the
United States, to be appointed by the President:" "Provided that the
said seal shall not be affixed to any commission, before the same shall have
been signed by the President of the United States; nor to any other instrument
or act, without the special warrant of the President therefor."
The signature is a warrant for affixing the great seal to the commission; and
the great seal is only to be affixed to an instrument which is complete. It
asserts, by an [**39] act supposed to be of public notoriety, the
verity of the Presidential signature.
It is never to be affixed till the commission is signed, because the signature,
which gives force and effect to the commission, is conclusive evidence that the
appointment is made.
The commission being signed, the subsequent duty of the secretary of state is
prescribed by law, and not to be guided by the will of the President. He is to
affix the seal of the United States to the commission, and is to record it.
This is not a proceeding which may be varied, if the judgment of the executive
shall suggest one more eligible; but is a precise course accurately marked out
by law, and is to be strictly pursued. It is the duty of the secretary of state
to conform to the law, and in this he is an officer of the United States, bound
to obey the laws. He acts, in this regard, as has been very properly stated at
the bar, under the authority of law, and not by the instructions of the
President. It is a ministerial act which the law enjoins on a particular
officer for a particular purpose.
If it should be supposed, that the solemnity of affixing the seal, is necessary
not only to the validity of the [**40] commission, but even to the
completion of an appointment, still when the seal is affixed the appointment is
made, and [*159] the commission is valid. No other solemnity is
required by law; no other act is to be performed on the part of government. All
that the executive can do to invest the person with his office, is done; and
unless the appointment be then made, the executive cannot make one without the
co-operation of others.
After searching anxiously for the principles on which a contrary opinion may be
supported, none have been found which appear of sufficient force to maintain
the opposite doctrine.
Such as the imagination of the court could suggest, have been very deliberately
examined, and after allowing them all the weight which it appears possible to
give them, they do not shake the opinion which has been formed.
In considering this question, it has been conjectured [***68] that
the commission may have been assimilated to a deed, to the validity of which,
delivery is essential.
This idea is founded on the supposition that the commission is not merely
evidence of an appointment, but is itself the actual appointment; a supposition
by no means unquestionable. [**41] But for the purpose of examining
this objection fairly, let it be conceded, that the principle, claimed for its
support, is established.
The appointment being, under the constitution, to be made by the President
personally, the delivery of the deed of appointment, if necessary to its
completion, must be made by the President also. It is not necessary that the
livery should be made personally to the grantee of the office: It never is so
made. The law would seem to contemplate that it should be made to the secretary
of state, since it directs the secretary to affix the seal to the commission
after it shall have been signed by the President. If then the act of livery be
necessary to give validity to the commission, it has been delivered when
executed and given to the secretary for the purpose of being sealed, recorded,
and transmitted to the party.
But in all cases of letters patent, certain solemnities are required by law,
which solemnities are the evidences [*160] of the validity of the
instrument. A formal delivery to the person is not among them. In cases of
commissions, the sign manual of the President, and the seal of the United
States, are those solemnities. This [**42] objection therefore does
not touch the case.
It has also occurred as possible, and barely possible, that the transmission of
the commission, and the acceptance thereof, might be deemed necessary to
complete the right of the plaintiff.
The transmission of the commission, is a practice directed by convenience, but
not by law. It cannot therefore be necessary to constitute the appointment
which must precede it, and which is the mere act of the President. If the
executive required that every person appointed to an office, should himself
take means to procure his commission, the appointment would not be the less
valid on that account. The appointment is the sole act of the President; the
transmission of the commission is the sole act of the officer to whom that duty
is assigned, and may be accelerated or retarded by circumstances which can have
no influence on the appointment. A commission is transmitted to a person
already appointed; not to a person to be appointed or not, as the letter
enclosing the commission should happen to get into the post-office and reach
him in safety, or to miscarry.
It may have some tendency to elucidate this point, to enquire, whether the
possession [**43] of the original commission be indispensably
necessary to authorize a person, appointed to any office, to perform the duties
of that office. If it was necessary, then a loss of the commission would lose
the office. Not only negligence, but accident or fraud, fire or theft, might
deprive an individual of his office. In such a case, I presume it could not be
doubted, but that a copy from the record of the office of the secretary of
state, would be, to every intent and purpose, equal to the original. The act of
congress has expressly made it so. To give that copy validity, it would not be
necessary to prove that the original had been transmitted and afterwards lost.
The copy would be complete evidence that the original had existed, and that the
appointment had been made, but, not that the original had been transmitted. If
indeed it should appear that [*161] the original had been mislaid
in the office of state, that circumstance would not affect the operation of the
copy. When all the requisites have been performed which authorize a recording
officer to record any instrument whatever, and the order for that purpose has
been given, the instrument is, in law, considered as recorded,
[**44] although the manual labor of inserting it in a book kept for
that purpose may not have been performed.
In the case of commissions, the law orders the secretary of state to record
them. When therefore they are signed and sealed, the order for their being
recorded is given; and whether inserted in the book or not, they are in law
recorded.
A copy of this record is declared equal to the original, and the fees, to be
paid by a person requiring a copy, are ascertained by law. Can a keeper of a
public record, erase therefrom a commission which has been recorded? Or can he
refuse a copy thereof to a person demanding it on the terms prescribed by law?
Such a copy would, equally with the original, authorize the justice of peace to
proceed in the performance of his duty, because it would, equally with the
original, attest his appointment.
If the transmission of a commission be not considered as necessary to give
validity to an appointment; still less is its acceptance. The appointment is
the sole act of the President; the acceptance is the sole act of the officer,
and is, in plain common sense, posterior to the appointment. As he may resign,
so may he refuse to accept: but neither [**45] the one, nor the
other, is capable of rendering the appointment a non-entity.
That this is the understanding of the government, is apparent from the whole
tenor of its conduct.
A commission bears date, and the salary of the officer commences from his
appointment; not from the transmission or acceptance of his commission. When a
person, appointed to any office, refuses to accept the office, the successor is
nominated in the place of the person who [*162] has declined to
accept, and not in the place of the person who had been previously in office,
and had created the original vacancy.
It is therefore decidedly the opinion of the court, that when a commission has
been signed by the President, the appointment is made; and that the commission
is complete, when the seal of the United States has been affixed to it by the
secretary of state.
Where an officer is removable at the will of the executive, the circumstance
which completes his appointment is of no concern; because the act is at any
time revocable; and the commission may be arrested, if still in the office. But
when the officer is not removable at the will of the executive, the appointment
is not revocable, and [**46] cannot be annulled. It has conferred
legal rights which cannot be resumed.
The discretion of the executive is to be exercised until the appointment has
been made. [***69] But having once made the appointment, his power
over the office is terminated in all cases, where, by law, the officer is not
removable by him. The right to the office is then in the person appointed, and
he has the absolute, unconditional, power of accepting or rejecting it.
Mr. Marbury, then, since his commission was signed by the President, and sealed
by the secretary of state, was appointed; and as the law creating the office,
gave the officer a right to hold for five years, independent of the executive,
the appointment was not revocable; but vested in the officer legal rights,
which are protected by the laws of his country.
To withhold his commission, therefore, is an act deemed by the court not
warranted by law, but violative of a vested legal right.
This brings us to the second enquiry; which is,
2dly. If he has a right, and that right has been violated, do the laws of his
country afford him a remedy?
[*163] The very essence of civil liberty certainly consists in the
right of every [**47] individual to claim the protection of the
laws, whenever he receives an injury. One of the first duties of government is
to afford that protection. In Great Britain the king himself is sued in the
respectful form of a petition, and he never fails to comply with the judgment
of his court.
In the 3d vol. of his commentaries, p. 23, Blackstone states two cases in which
a remedy is afforded by mere operation of law.
"In all other cases," he says, "it is a general and indisputable
rule, that where there is a legal right, there is also a legal remedy by suit
or action at law, whenever that right is invaded."
And afterwards, p. 109, of the same vol. he says, "I am next to consider
such injuries as are cognizable by the courts of the common law. And herein I
shall for the present only remark, that all possible injuries whatsoever, that
did not fall within the exclusive cognizance of either the ecclesiastical,
military, or maritime tribunals, are for that very reason, within the
cognizance of the common law courts of justice; for it is a settled and
invariable principle in the laws of England, that every right, when withheld,
must have a remedy, and every injury its proper redress."
[**48]
The government of the United States has been emphatically termed a government
of laws, and not of men. It will certainly cease to deserve this high
appellation, if the laws furnish no remedy for the violation of a vested legal
right.
If this obloquy is to be cast on the jurisprudence of our country, it must
arise from the peculiar character of the case.
It behooves us then to enquire whether there be in its composition any
ingredient which shall exempt it from legal investigation, or exclude the
injured party from legal redress. In pursuing this enquiry the first question
which presents itself is, whether this can be arranged [*164] with
that class of cases which comes under the description of damnum absque injuria
-- a loss without an injury.
This description of cases never has been considered, and it is believed never
can be considered, as comprehending offices of trust, of honor or of profit.
The office of justice of peace in the district of Columbia is such an office;
it is therefore worthy of the attention and guardianship of the laws. It has
received that attention and guardianship. It has been created by special act of
congress, and has been secured, so far [**49] as the laws can give
security to the person appointed to fill it, for five years. It is not then on
account of the worthlessness of the thing pursued, that the injured party can
be alleged to be without remedy.
Is it in the nature of the transaction? Is the act of delivering or withholding
a commission to be considered as a mere political act, belonging to the
executive department alone, for the performance of which, entire confidence is
placed by our constitution in the supreme executive; and for any misconduct
respecting which, the injured individual has no remedy.
That there may be such cases is not to be questioned; but that every act of
duty, to be performed in any of the great departments of government,
constitutes such a case is not to be admitted.
By the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the
secretary of war is ordered to place on the pension list, all persons whose
names are contained in a report previously made by him to congress. If he
should refuse to do so, would the wounded veteran be without remedy? Is it to
be contended that where the law in precise terms, directs the performance of an
act, in which an individual is interested, [**50] the law is
incapable of securing obedience to its mandate? Is it on account of the
character of the person against whom the complaint is made? Is it to be
contended that the heads of departments are not amenable to the laws of their
country?
Whatever the practice on particular occasions may be, the theory of this
principle will certainly never be maintained. [*165] No act of the
legislature confers so extraordinary a privilege, nor can it derive countenance
from the doctrines of the common law. After stating that personal injury from
the king to a subject is presumed to be impossible, Blackstone, vol. 3. p. 255,
says, "but injuries to the rights of property can scarcely be committed by
the crown without the intervention of its officers; for whom, the law, in
matters of right, entertains no respect or delicacy; but furnishes various
methods of detecting the errors and misconduct of those agents, by whom the
king has been deceived and induced to do a temporary injustice."
By the act passed in 1796, authorizing the sale of the lands above the mouth of
Kentucky river (vol. 3d. p. 299) the purchaser, on paying his purchase money,
becomes completely entitled to the property [**51] purchased; and
on producing to the secretary of state, the receipt of the treasurer upon a
certificate required by the law, the president of the United States is
authorized to grant him a patent. It is further enacted that all patents shall
be countersigned by the secretary of state, and recorded in his office. If the
secretary of state should choose to withhold this patent; or the patent being
lost, should refuse a copy of it; can it be imagined that the law furnishes to
the injured person no remedy?
It is not believed that any person whatever would attempt to maintain such a
proposition.
[***70] It follows then that the question, whether the legality of
an act of the head of a department be examinable in a court of justice or not,
must always depend on the nature of that act.
If some acts be examinable, and others not, there must be some rule of law to
guide the court in the exercise of its jurisdiction.
In some instances there may be difficulty in applying the rule to particular
cases; but there cannot, it is believed, be much difficulty in laying down the
rule.
By the constitution of the United States, the President is invested with certain
important political [**52] powers, in the [*166]
exercise of which he is to use his own discretion, and is accountable only to
his country in his political character, and to his own conscience. To aid him
in the performance of these duties, he is authorized to appoint certain
officers, who act by his authority and in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be entertained
of the manner in which executive discretion may be used, still there exists,
and can exist, no power to control that discretion. The subjects are political.
They respect the nation, not individual rights, and being entrusted to the
executive, the decision of the executive is conclusive. The application of this
remark will be perceived by adverting to the act of congress for establishing
the department of foreign affairs. This office, as his duties were prescribed
by that act, is to conform precisely to the will of the President. He is the
mere organ by whom that will is communicated. The acts of such an officer, as
an officer, can never be examinable by the courts.
But when the legislature proceeds to impose on that officer other duties; when
he is directed peremptorily to [**53] perform certain acts; when
the rights of individuals are dependent on the performance of those acts; he is
so far the officer of the law; is amenable to the laws for his conduct; and
cannot at his discretion sport away the vested rights of others.
The conclusion from this reasoning is, that where the heads of departments are
the political or confidential agents of the executive, merely to execute the
will of the President, or rather to act in cases in which the executive
possesses a constitutional or legal discretion, nothing can be more perfectly
clear than that their acts are only politically examinable. But where a
specific duty is assigned by law, and individual rights depend upon the
performance of that duty, it seems equally clear that the individual who
considers himself injured, has a right to resort to the laws of his country for
a remedy.
If this be the rule, let us enquire how it applies to the case under the
consideration of the court.
[*167] The power of nominating to the senate, and the power of
appointing the person nominated, are political powers, to be exercised by the
President according to his own discretion. When he has made an appointment, he
has [**54] exercised his whole power, and his discretion has been
completely applied to the case. If, by law, the officer be removable at the
will of the President, then a new appointment may be immediately made, and the
rights of the officer are terminated. But as a fact which has existed cannot be
made never to have existed, the appointment cannot be annihilated; and
consequently if the officer is by law not removable at the will of the
President; the rights he has acquired are protected by the law, and are not
resumeable by the President. They cannot be extinguished by executive
authority, and he has the privilege of asserting them in like manner as if they
had been derived from any other source.
The question whether a right has vested or not, is, in its nature, judicial,
and must be tried by the judicial authority. If, for example, Mr. Marbury had
taken the oaths of a magistrate, and proceeded to act as one; in consequence of
which a suit had been instituted against him, in which his defence had depended
on his being a magistrate; the validity of his appointment must have been
determined by judicial authority.
So, if he conceives that, by virtue of his appointment, he has a legal
[**55] right, either to the commission which has been made out for
him, or to a copy of that commission, it is equally a question examinable in a
court, and the decision of the court upon it must depend on the opinion
entertained of his appointment.
That question has been discussed, and the opinion is, that the latest point of
time which can be taken as that at which the appointment was complete, and
evidenced, was when, after the signature of the president, the seal of the
United States was affixed to the commission.
It is then the opinion of the court,
1st. That by signing the commission of Mr. Marbury, the president of the United
States appointed him a justice [*168] of peace, for the county of
Washington in the district of Columbia; and that the seal of the United States,
affixed thereto by the secretary of state, is conclusive testimony of the
verity of the signature, and of the completion of the appointment; and that the
appointment conferred on him a legal right to the office for the space of five
years.
2dly. That, having this legal title to the office, he has a consequent right to
the commission; a refusal to deliver which, is a plain violation of that right,
for [**56] which the laws of his country afford him a remedy.
It remains to be enquired whether,
3dly. He is entitled to the remedy for which he applies. This depends on,
1st. The nature of the writ applied for, and,
2dly. The power of this court.
1st. The nature of the writ.
Blackstone, in the 3d volume of his commentaries, page 110, defines a mandamus
to be, "a command issued in the King's name from the court of King's
Bench, and directed to any person, corporation, or inferior court of judicature
within the King's dominions, requiring them to do some particular thing therein
specified, which appertains to their office and duty, and which the court of
King's Bench has previously determined, or at least supposed, to be consonant
to right and justice."
Lord Mansfield, in 3d Burrows 1266, in the case of the King v. Baker, et al.
states with much precision and explicitness the cases in which this writ may be
used.
"Whenever," says that very able judge, "there
[***71] is a right to execute an office, perform a service, or exercise
a franchise (more specifically if it be in a matter of public concern, or
attended with profit) and a person is kept out of the possession,
[**57] or dispossessed of such right, and [*169] has no
other specific legal remedy, this court ought to assist by mandamus, upon
reasons of justice, as the writ expresses, and upon reasons of public policy,
to preserve peace, order and good government." In the same case he says,
"this writ ought to be used upon all occasions where the law has established
no specific remedy, and where in justice and good government there ought to be
one."
In addition to the authorities now particularly cited, many others were relied
on at the bar, which show how far the practice has conformed to the general
doctrines that have been just quoted.
This writ, if awarded, would be directed to an officer of government, and its
mandate to him would be, to use the words of Blackstone, "to do a
particular thing therein specified, which appertains to his office and duty and
which the court has previously determined, or at least supposes, to be
consonant to right and justice." Or, in the words of Lord Mansfield, the
applicant, in this case, has a right to execute an office of public concern,
and is kept out of possession of that right.
These circumstances certainly concur in this case.
Still, to render [**58] the mandamus a proper remedy, the officer
to whom it is directed, must be one to whom, on legal principles, such writ may
be directed; and the person applying for it must be without any other specific
and legal remedy.
1st. With respect to the officer to whom it would be directed. The intimate
political relation, subsisting between the president of the United States and
the heads of departments, necessarily renders any legal investigation of the
acts of one of those high officers peculiarly irksome, as well as delicate; and
excites some hesitation with respect to the propriety of entering into such
investigation. Impressions are often received without much reflection or examination,
and it is not wonderful 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
[*170] by some, as an attempt to intrude into the cabinet, and to
intermeddle with the prerogatives of the executive.
It is scarcely necessary for the court to disclaim all pretensions to such a
jurisdiction. An extravagance, so absurd and excessive, could not have been
entertained [**59] for a moment. The province of the court is,
solely, to decide on the rights of individuals, not to enquire how the
executive, or executive officers, perform duties in which they have a
discretion. Questions, in their nature political, or which are, by the
constitution and laws, submitted to the executive, can never be made in this
court.
But, if this be not such a question; if so far from being an intrusion into the
secrets of the cabinet, it respects a paper, which, according to law, is upon record,
and to a copy of which the law gives a right, on the payment of ten cents; if
it be no intermeddling with a subject, over which the executive can be
considered as having exercised any control; what is there in the exalted
station of the officer, which shall bar a citizen from asserting, in a court of
justice, his legal rights, or shall forbid a court to listen to the claim; or
to issue a mandamus, directing the performance of a duty, not depending on
executive discretion, but on particular acts of congress and the general
principles of law?
If one of the heads of departments commits any illegal act, under the color of
his office, by which an individual sustains an injury, it cannot
[**60] be pretended that his office alone exempts him from being sued
in the ordinary mode of proceeding, and being compelled to obey the judgment of
the law. How then can his office exempt him from this particular mode of
deciding on the legality of his conduct, if the case be such a case as would,
were any other individual the party complained of, authorize the process?
It is not by the office of the person to whom the writ is directed, but the
nature of the thing to be done that the propriety or impropriety of issuing a
mandamus, is to be determined. Where the head of a department acts in a case,
in which executive discretion is to be exercised; in which he is the mere organ
of executive will; it is [*171] again repeated, that any
application to a court to control, in any respect, his conduct, would be rejected
without hesitation.
But where he is directed by law to do a certain act affecting the absolute
rights of individuals, in the performance of which he is not placed under the
particular direction of the President, and the performance of which, the
President cannot lawfully forbid, and therefore is never presumed to have
forbidden; as for example, to record a commission, [**61] or a
patent for land, which has received all the legal solemnities; or to give a
copy of such record; in such cases, it is not perceived on what ground the
courts of the country are further excused from the duty of giving judgment,
that right be done to an injured individual, than if the same services were to
be performed by a person not the head of a department.
This opinion seems not now, for the first time, to be taken upon in this
country.
It must be well recollected that in 1792, an act passed, directing the
secretary at war to place on the pension list such disabled officers and
soldiers as should be reported to him, by the circuit courts, which act, so far
as the duty was imposed on the courts, was deemed unconstitutional; but some of
the judges, thinking that the law might be executed by them in the character of
commissioners, proceeded to act and to report in that character.
This law being deemed unconstitutional at the circuits, was repealed, and a
different system was established; but this question whether those persons, who
had been reported by the judges, as commissioners, were entitled, in
consequence of that report, to be placed on the pension list, was a legal
[**62] question, properly determinable in the courts, although the
act of placing such persons on the list was to be preformed by the head of a
department.
That this question might be properly settled, congress passed an act in
February, 1793, making [***72] it the duty of the secretary of war,
in conjunction with the attorney general, to take such measures, as might be
necessary to obtain an adjudication of the supreme court of the United [*172]
States on the validity of any such rights, claimed under the act aforesaid.
After the passage of this act, a mandamus was moved for, to be directed to the
secretary at war, commanding him to place on the pension list, a person stating
himself to be on the report of the judges.
There is, therefore, much reason to believe, that this mode of trying the legal
right of the complainant, was deemed by the head of a department, and by the
highest law officer of the United States, the most proper which could be
selected for the purpose.
When the subject was brought before the court the decision was, not that a
mandamus would not lie to the head of a department, directing him to perform an
act, enjoined by law, in the performance of which [**63] an
individual had a vested interest; but that a mandamus ought not to issue in
that case -- the decision necessarily to be made if the report of the
commissioners did not confer on the applicant a legal right.
The judgment in that case, is understood to have decided the merits of all
claims of that description; and the persons on the report of the commissioners
found it necessary to pursue the mode prescribed by the law subsequent to that
which had been deemed unconstitutional, in order to place themselves on the
pension list.
The doctrine, therefore, now advanced, is by no means a novel one.
It is true that the mandamus, now moved for, is not for the performance of an
act expressly enjoined by statute.
It is to deliver a commission; on which subject the acts of Congress are
silent. This difference is not considered as affecting the case. It has already
been stated that the applicant has, to that commission, a vested legal right,
of which the executive cannot deprive him. He has been appointed to an office,
from which he is not removable at the will of the executive; and being so
[*173] appointed, he has a right to the commission which the
secretary has received [**64] from the president for his use. The
act of congress does not indeed order the secretary of state to send it to him,
but it is placed in his hands for the person entitled to it; and cannot be more
lawfully withheld by him, than by any other person.
It was at first doubted whether the action of detinue was not a specified legal
remedy for the commission which has been withheld from Mr. Marbury; in which
case a mandamus would be improper. But this doubt has yielded to the
consideration that the judgment in detinue is for the thing itself, or its
value. The value of a public office not to be sold, is incapable of being
ascertained; and the applicant has a right to the office itself, or to nothing.
He will obtain the office by obtaining the commission, or a copy of it from the
record.
This, then, is a plain case for a mandamus, either to deliver the commission,
or a copy of it from the record; and it only remains to be enquired,
Whether it can issue from this court.
The act to establish the judicial courts of the United States authorizes the
supreme court "to issue writs of mandamus, in cases warranted by the
principles and usages of law, to any courts appointed, or persons
[**65] holding office, under the authority of the United
States."
The secretary of state, being a person holding an office under the authority of
the United States, is precisely within the letter of the description; and if
this court is not authorized to issue a writ of mandamus to such an officer, it
must be because the law is unconstitutional, and therefore absolutely incapable
of conferring the authority, and assigning the duties which its words purport
to confer and assign.
The constitution vests the whole judicial power of the United States in one
supreme court, and such inferior courts as congress shall, from time to time,
ordain and establish. This power is expressly extended to all cases arising
under the laws of the United States; and consequently, in some form, may be
exercised over the present [*174] case; because the right claimed
is given by a law of the United States.
In the distribution of this power it is declared that "the supreme court
shall have original jurisdiction in all cases affecting ambassadors, other
public ministers and consuls, and those in which a state shall be a party. In
all other cases, the supreme court shall have appellate jurisdiction."
[**66]
It has been insisted, at the bar, that as the original grant of jurisdiction,
to the supreme and inferior courts, is general, and the clause, assigning
original jurisdiction to the supreme court, contains no negative or restrictive
words; the power remains to the legislature, to assign original jurisdiction to
that court in other cases than those specified in the article which has been
recited; provided those cases belong to the judicial power of the United
States.
If it had been intended to leave it to the discretion of the legislature to
apportion the judicial power between the supreme and inferior courts according
to the will of that body, it would certainly have been useless to have
proceeded further than to have defined the judicial powers, and the tribunals
in which it should be vested. The subsequent part of the section is mere
surplusage, is entirely without meaning, if such is to be the construction. If
congress remains at liberty to give this court appellate jurisdiction, where
the constitution has declared their jurisdiction shall be original; and
original jurisdiction where the constitution has declared it shall be
appellate; the distribution of jurisdiction, made [**67] in the
constitution, is form without substance.
Affirmative words are often, in their operation, negative of other objects than
those affirmed; and in this case, a negative or exclusive sense must be given
to them or they have no operation at all.
It cannot be presumed that any clause in the constitution is intended to be without
effect; and therefore such a construction is inadmissible, unless the words
require it.
[*175] If the solicitude of the convention, respecting our peace
with foreign powers, induced a provision that the supreme court should take
original jurisdiction in cases which [***73] might be supposed to
affect them; yet the clause would have proceeded no further than to provide for
such cases, if no further restriction on the powers of congress had been
intended. That they should have appellate jurisdiction in all other cases, with
such exceptions as congress might make, is no restriction; unless the words be
deemed exclusive of original jurisdiction.
When an instrument organizing fundamentally a judicial system, divides it into
one supreme, and so many inferior courts as the legislature may ordain and
establish; then enumerates its powers, and [**68] proceeds so far
to distribute them, as to define the jurisdiction of the supreme court by
declaring the cases in which it shall take original jurisdiction, and that in
others it shall take appellate jurisdiction; the plain import of the words
seems to be, that in one class of cases its jurisdiction is original, and not
appellate; in the other it is appellate, and not original. If any other
construction would render the clause inoperative, that is an additional reason
for rejecting such other construction, and for adhering to their obvious
meaning.
To enable this court then to issue a mandamus, it must be shown to be an
exercise of appellate jurisdiction, or to be necessary to enable them to
exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised
in a variety of forms, and that if it be the will of the legislature that a
mandamus should be used for that purpose, that will must be obeyed. This is
true, yet the jurisdiction must be appellate, not original.
It is the essential criterion of appellate jurisdiction, that it revises and
corrects the proceedings in a cause already instituted, and does not create
that cause. Although, [**69] therefore, a mandamus may be directed
to courts, yet to issue such a writ to an officer for the delivery of a paper,
is in effect the same as to sustain an original action for that paper, and
therefore seems not to belong to [*176] appellate, but to original
jurisdiction. Neither is it necessary in such a case as this, to enable the
court to exercise its appellate jurisdiction.
The authority, therefore, 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 not to be warranted by the constitution; and it becomes
necessary to enquire whether a jurisdiction, so conferred, can be exercised.
The question, whether an act, repugnant to the constitution, can become the law
of the land, is a question deeply interesting to the United States; but,
happily, not of an intricacy proportioned to its interest. It seems only
necessary to recognize certain principles, supposed to have been long and well
established, to decide it.
That the people have an original right to establish, for their future
government, such principles as, in their opinion, shall most conduce to their
own happiness, [**70] is the basis, on which the whole American fabric
has been erected. The exercise of this original right is a very great exertion;
nor can it, nor ought it to be frequently repeated. The principles, therefore,
so established, are deemed fundamental. And as the authority, from which they
proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns, to
different departments, their respective powers. It may either stop here; or
establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of
the legislature are defined, and limited; and that those limits may not be
mistaken, or forgotten, the constitution is written. To what purpose are powers
limited, and to what purpose is that limitation committed to writing, if these
limits may, at any time, be passed by those intended to be restrained? The
distinction, between a government with limited and unlimited powers, is
abolished, if those limits do not confine the persons on whom they are imposed,
and if acts prohibited [*177] and acts allowed, are of equal
obligation. [**71] It is a proposition too plain to be contested,
that the constitution controls any legislative act repugnant to it; or, that
the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is
either a superior, paramount law, unchangeable by ordinary means, or it is on a
level with ordinary legislative acts, and like other acts, is alterable when
the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary
to the constitution is not law: if the latter part be true, then written
constitutions are absurd attempts, on the part of the people, to limit a power,
in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as
forming the fundamental and paramount law of the nation, and consequently the
theory of every such government must be, that an act of the legislature,
repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and is
consequently to be considered, by this court, as one of the fundamental
principles of our society. It is not therefore to be [**72] lost
sight of in the further consideration of this subject.
If an act of the legislature, repugnant to the constitution, is void, does it,
notwithstanding its invalidity, bind the courts, and oblige them to give it
effect? Or, in other words, though it be not law, does it constitute a rule as
operative as if it was a law? This would be to overthrow in fact what was
established in theory; and would seem, at first view, an absurdity too gross to
be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what
the law is. Those who apply the rule to particular cases, must of necessity
expound and interpret that rule. If two laws conflict with each other, the
courts must decide on the operation of each.
[*178] So if a law be in opposition to the constitution; if both
the law and the constitution apply to a particular case, so that the court must
either decide that case conformably to the law, disregarding the constitution;
or conformably to the constitution, disregarding the law; the court must
determine which of [***74] these conflicting rules governs the
case. This is of the [**73] very essence of judicial duty.
If then the courts are to regard the constitution; and the constitution is
superior to any ordinary act of the legislature; the constitution, and not such
ordinary act, must govern the case to which they both apply.
Those then who controvert the principle that the constitution is to be
considered, in court, as a paramount law, are reduced to the necessity of
maintaining that courts must close their eyes on the constitution, and see only
the law.
This doctrine would subvert the very foundation of all written constitutions.
It would declare that an act, which, according to the principles and theory of
our government, is entirely void; is yet, in practice, completely obligatory.
It would declare, that if the legislature shall do what is expressly forbidden,
such act, notwithstanding the express prohibition, is in reality effectual. It
would be giving to the legislature a practical and real omnipotence, with the
same breath which professes to restrict their powers within narrow limits. It is
prescribing limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement
[**74] on political institutions -- a written constitution -- would
of itself be sufficient, in America, where written constitutions have been
viewed with so much reverence, for rejecting the construction. But the peculiar
expressions of the constitution of the United States furnish additional
arguments in favor of its rejection.
The judicial power of the United States is extended to all cases arising under
the constitution.
[*179] Could it be the intention of those who gave this power, to
say that, in using it, the constitution should not be looked into? That a case
arising under the constitution should be decided without examining the
instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the constitution must be looked into by the judges. And if
they can open it at all, what part of it are they forbidden to read, or to
obey?
There are many other parts of the constitution which serve to illustrate this
subject.
It is declared that "no tax or duty shall be laid on articles exported
from any state." Suppose a duty on the export of cotton, of tobacco, or of
flour; and a suit instituted to recover it. Ought judgment to be rendered
[**75] in such a case? ought the judges to close their eyes on the
constitution, and only see the law.
The constitution declares that "no bill of attainder or ex post facto law
shall be passed."
If, however, such a bill should be passed and a person should be prosecuted
under it; must the court condemn to death those victims whom the constitution
endeavors to preserve?
"No person," says the constitution, "shall be convicted of
treason unless on the testimony of two witnesses to the fame overt act, or on
confession in open court."
Here the language of the constitution is addressed especially to the courts. It
prescribes, directly for them, a rule of evidence not to be departed from. If
the legislature should change that rule, and declare one witness, or a
confession out of court, sufficient for conviction, must the constitutional
principle yield to the legislative act?
From these, and many other selections which might be made, it is apparent, that
the framers of the constitution [*180] contemplated that
instrument, as a rule for the government of courts, as well as of the
legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath
certainly [**76] applies, in an especial manner, to their conduct
in their official character. How immoral to impose it on them, if they were to
be used as the instruments, and the knowing instruments, for violating what
they swear to support!
The oath of office, too, imposed by the legislature, is completely
demonstrative of the legislative opinion on the subject. It is in these words,
"I do solemnly swear that I will administer justice without respect to
persons, and do equal right to the poor and to the rich; and that I will
faithfully and impartially discharge all the duties incumbent on me as
according to the best of my abilities and understanding,
agreeably to the constitution, and laws of the United States."
Why does a judge swear to discharge his duties agreeably to the constitution of
the United States, if that constitution forms no rule for his government? if it
is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To
prescribe, or to take this oath, becomes equally a crime.
It is also not entirely unworthy of observation, that in declaring what shall
be the supreme law of the land, the constitution [**77] itself is
first mentioned; and not the laws of the United States generally, but those
only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States
confirms and strengthens the principle, supposed to be essential to all written
constitutions, that a law repugnant to the constitution is void; and that
courts, as well as other departments, are bound by that instrument.
The rule must be discharged.