| Mr.
Chief Justice MARSHALL delivered the 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 [p*154] should not issue directing him to deliver
to William Marbury his commission as a justice of the peace for 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.
1. Has the applicant a right to the commission he demands?
2. If he has a right, and that right has been violated, do the laws of
his country afford him a remedy?
3. If they do afford him a remedy, is it a mandamus issuing from this
court? The first object of inquiry is:
1. 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 eleventh 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. [p*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 inquire 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 second section of the second article of the Constitution declares,
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:
1. The nomination. This is the sole act of the President, and is
completely voluntary.
2. 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. [p*156]
3. 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
authorises 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 own.
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. [p*157]
This is an appointment made 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 stage 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 everything 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 deliberation 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 it 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 [p*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 attests, 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 respect, 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 [p*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 cooperation of others.
After searching anxiously for the principles on which a contrary opinion
may be supported, none has 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 [p*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 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 inquire 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 [p*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,
although the manual labour 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
nonentity.
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 that
office, the successor is nominated in the place of the person who
[p*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 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 the 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 inquiry, which is:
2. If he has a right, and that right has been violated, do the laws of
his country afford him a remedy? [p*163]
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 third volume of his Commentaries, page 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, page 109 of the same volume, he says,
I am next to consider such injuries as are cognizable by the Courts of
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 inquire whether there be in its composition any
ingredient which shall exempt from legal investigation or exclude the
injured party from legal redress. In pursuing this inquiry, the first
question which presents itself is whether this can be arranged [p*164]
with that class of cases which come 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
honour 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, the Secretary at
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. [p*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. III. 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, 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 [p*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 officer, 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 inquire how it applies to the case under the
consideration of the Court. [p*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
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 resumable 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:
1. That, by signing the commission of Mr. Marbury, the President of the
United States appointed him a justice [p*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.
2. 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 inquired whether,
3. He is entitled to the remedy for which he applies. This depends on:
1. The nature of the writ applied for, and
2. The power of this court.
1. The nature of the writ.
Blackstone, in the third volume of his Commentaries, page 110, defines a
mandamus to be
a command issuing 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
supposes, to be consonant to right and justice.
Lord Mansfield, in 3 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 especially if it be in a matter of public concern or
attended with profit), and a person is kept out of possession, or
dispossessed of such right, and [p*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 the mandamus a proper remedy, the officer to whom it is
to be 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.
1. 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
[p*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 for a moment. The province of the Court is solely
to decide on the rights of individuals, not to inquire 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 colour
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 [p*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, 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 to 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 up 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 the 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 performed 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
[p*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 of 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 subjects 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 [p*173] 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 another
person.
It was at first doubted whether the action of detinue was not a specific
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 of a mandamus, either to deliver the
commission or a copy of it from the record, and it only remains to be
inquired:
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 [p*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.
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 in 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 power 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 construction is inadmissible
unless the words require it. [p*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 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 the 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 case. 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 [p*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 inquire 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 recognise 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 [p*177] 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. [p*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 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 favour of its rejection.
The judicial power of the United States is extended to all cases arising
under the Constitution. [p*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 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 endeavours to preserve?
"No person," says the Constitution, "shall be convicted
of treason unless on the testimony of two witnesses to the same 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 [p*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 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 this 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. | |