OPINION BY: MARSHALL
OPINION: 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 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.
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 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.
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
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.
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 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 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 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.
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 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 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 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 commission, but even to the
completion of an appointment, still when the seal is affixed the
appointment is made, and 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 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. 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 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 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 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 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, 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
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 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 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. 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?
The very essence of civil liberty certainly consists in the right
of every 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."
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 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 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, 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. 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 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.
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 powers, in the 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 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.
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 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
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 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 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 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, or dispossessed of such right, and 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 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 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 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
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 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, 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 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 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
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 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 appointed, he has a right to the commission
which the secretary has received 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 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 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."
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 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.
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 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 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, 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 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, 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 and acts
allowed, are of equal obligation. 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 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.
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 these conflicting rules governs the
case. This is of the 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
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.
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
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 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 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 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.