5 U.S.

137 for information whether the commissions were signed and sealed as
1803-02 aforesaid; that explicit and satisfactory information has not been
given in answer to that inquiry, either by the secretary of state, or any
U.S. Supreme Court officer in the department of state; that application has been made to
the secretary of the senate for a certificate of the nomination of the
MARBURY v. MADISON, 5 U.S. 137 (1803) applicants, and of the advice and consent of the senate, who has
5 U.S. 137 (Cranch) declined giving such a certificate; whereupon a rule was made to
show cause on the fourth day of this term. This rule having been duly
WILLIAM MARBURY v. JAMES MADISON, Secretary of State of served-- [5 U.S. 137, 139] Mr. Jacob Wagner and Mr. Daniel Brent,
the United States. who had been summoned to attend the court, and were required to
give evidence, objected to be sworn, alleging that they were clerks in
February Term, 1803 the department of state, and not bound to disclose any facts relating
to the business or transactions of the office.
AT the December term 1801, William Marbury, Dennis Ramsay,
Robert Townsend Hooe, and William Harper, by their counsel [5 U.S. The court ordered the witnesses to be sworn, and their answers
137, 138] severally moved the court for a rule to James Madison, taken in writing; but informed them that when the questions were
secretary of state of the United States, to show cause why a asked they might state their objections to answering each particular
mandamus should not issue commanding him to cause to be question, if they had any.
delivered to them respectively their several commissions as justices
of the peace in the district of Columbia. Mr. Lincoln, who had been the acting secretary of state, when the
circumstances stated in the affidavits occurred, was called upon to
This motion was supported by affidavits of the following facts: that give testimony. He objected to answering. The questions were put in
notice of this motion had been given to Mr. Madison; that Mr. Adams, writing.
the late president of the United States, nominated the applicants to
the senate for their advice and consent to be appointed justices of The court said there was nothing confidential required to be
the peace of the district of Columbia; that the senate advised and disclosed. If there had been, he was not obliged to answer it, and if
consented to the appointments; that commissions in due form were he thought any thing was communicated to him confidentially he was
signed by the said president appointing them justices, &c. and that not bound to disclose, nor was he obliged to state any thing which
the seal of the United States was in due form affixed to the said would criminate himself.
commissions by the secretary of state; that the applicants have
requested Mr. Madison to deliver them their said commissions, who The questions argued by the counsel for the relators were, 1.
has not complied with that request; and that their said commissions Whether the supreme court can award the writ of mandamus in any
are withheld from them; that the applicants have made application to case. 2. Whether it will lie to a secretary of state, in any case
Mr. Madison as secretary of state of the United States at his office,

155] It appears from the affidavits. in the district of Columbia. 137. [5 U. 154] should not issue.' court? . think expedient. on the affidavits then read and filed with the clerk. Mr. requiring the secretary of state to show this law enacts. and the present motion is for a commission for William Marbury as a justice of peace for the county mandamus. and that right has been violated. on the side of the applicant. being completed. a No cause has been shown. 153] His right originates in an act of congress passed in February 1801. shall appoint ambassadors.S. and all other officers of the United States. 1. a After dividing the district into two counties. there will be becomes necessary to inquire whether he has been appointed to the some departure in form. If they do afford him a remedy. 137. At the last term. The second section of the second article of the constitution declares. concerning the district of Columbia. the eleventh section of rule was granted in this case. 137. If he has a right. made out. Chief Justice MARSHALL delivered the opinion of the court.S. peace for the county of Washington. the novelty of some of of Washington was signed by John Adams. do the laws of whose appointments are not otherwise provided for. Whether in the present case the court may award a The first object of inquiry is. and. for five years. secretary of state. other public ministers and consuls. These principles have been. from the points office. which. is it a mandamus issuing from this of the United States. though not in substance. and he is entitled to the possession of those evidences of office. that 'he shall commission all the officers 3. The peculiar delicacy of this case.' his country afford him a remedy? The third section declares. directing said counties. that in compliance with this law. after which the seal of the United States was affixed to occur in it. it argued at the bar.S. and the real difficulty attending the points which United States. became his property. the law continues him in office stated in that argument. but the commission has never reached the person for whom it was the opinion to be given by the court is founded. Has the applicant a right to the commission he demands? consent of the senate. 'that there shall be appointed in and for each of the cause why a mandamus [5 U. In rendering the opinion of the court. 3. the following questions have been considered and decided. require a complete exposition of the principles on which it. then president of the its circumstances. In the order in which the court has viewed this subject. mandamus to James Madison. 2. Has the applicant a right to the commission he demands? [5 U. For if he has been appointed.whatever. very ably In order to determine whether he is entitled to this commission. by and with the advice and 1. from time to time. such number of discreet persons to be justices of the him to deliver to William Marbury his commission as a justice of the peace as the president of the United States shall. to continue in office for five years. 'the president shall nominate.

They seem to contemplate been appointed. which authorises congress 'to vest by law the appointment of such inferior officers as they think proper. the performance of such public act would create the 2. it being almost impossible to show an appointment sections of the constitution. Of consequence the constitutional distinction between the These are the clauses of the constitution and laws of the United appointment to an office and the commission of an officer who has States. 'commission all the officers of the United more intelligible those which apply more directly to the particular States. from the existence of this distinction. to issue a commission would be . 156] 3. in the But at what stage does it amount to this conclusive evidence? president alone. provided that the said seal shall not be affixed to to commission all the officers of the United States. In such appointed. by and with the advice and consent of the The acts of appointing to office. which affect this part of the case. and is also officer. This is the sole act of the president. the performance of the United States. and commissioning the person senate. would a voluntary act. commission. if an completely voluntary. departments. The nomination. The appointment. [5 U. that. remains the same as if in practice the president had three distinct operations: commissioned officers appointed by an authority other than his own. and affix the said seal to which perhaps. since a case therefore the commission and the appointment seem the power to perform them is given in two separate and distinct inseparable. can scarcely be considered as one and the same. This is also the act of the president.' thus contemplating cases where the law may direct the president to The answer to this question seems an obvious one. The appointment commission an officer appointed by the courts or by the heads of being the sole act of the president. could not legally be refused. constitution. The distinction between the appointment otherwise than by proving the existence of a commission: still the and the commission will be rendered more apparent by adverting to commission is not necessarily the appointment. though it can only be performed by and with the either give him a right to his commission. or in the heads of departments.' These observations are premised solely for the purpose of rendering says that instrument.An act of congress directs the secretary of state to keep the seal of apparently a duty distinct from the appointment. 'He shall. in the courts of law. though conclusive that provision in the second section of the second article of the evidence of it. 157] This is an appointment made by the president.S. or enable him to perform advice and consent of the senate. may never have any commission before the same shall have been signed by the been applied to officers appointed otherwise than by himself. 1. yet it president of the United States. might perhaps be deemed a duty enjoined by the constitution. To grant a commission to a person appointed.' would be difficult to deny the legislative power to apply it to such cases. 'to make out and record. all civil commissions to officers of the United States to be appointed by the president. The the duties without it.S. by and with the consent of the senate.' case under consideration. [5 U. and if he was not removable at the will of the president. 137. appointment was to be evidenced by any public act other than the commission. must be completely evidenced. and is evidenced by no act but the commission itself. and is It follows too. In such a case. 137. or by the Although that clause of the constitution which requires the president president alone.

instead of being evidence of an notoriety. the verity of the presidential signature. by an act supposed to be of public Should the commission.S. even be considered as constituting the appointment itself. and not by the instructions of the president. and being the last act required from the person executive shall suggest one more eligible. particular purpose. 137. This last act is the signature of the commission. and unless the appointment be then 'provided that the said seal shall not be affixed to any commission. This idea If it should be supposed. as has been very properly stated at the bar. His judgment. to be appointed by the president:' person with his office. is the signature of the The commission being signed. This is not a proceeding which may be varied. because the president was performed. on the advice and consent of commission. but is a precise course making it. must cease. He is to affix the seal of the United States to the passed. duty of the secretary of state to conform to the law. the executive cannot make one without the co. when the act passed necessary not only to the validity of the commission. state shall keep the seal of the United States.when it is shown that he has done every thing to be performed by The signature is a warrant for affixing the great seal to the him. That point of authority of law.operation of before the same shall have been signed by the president of the others. He acts. and not to be guided by the will of the senate to his own nomination. nor to any other instrument or act. bound to obey the laws. still it would be made when the last act to be done by the It is never to be affixed till the commission is signed. that the secretary of appointment is made. the subsequent duty of the secretary commission. has been performed. that the solemnity of affixing the seal. required from the person possessing the power. He has then acted on the advice and consent of the of state is prescribed by law. 158] of foreign affairs into the completion of an appointment. the senate concurring with his nomination.S. and in this he is an officer of the United States. is done. still when the seal is affixed the department of state. and the officer is appointed. The last act to be done by the president. and is to record it. All that the executive can do to invest the officers of the United States. This appointment is evidenced by an open. and the great seal is only to be affixed to an instrument which is complete. and shall affix the said seal to all civil commissions to on the part of government. United States. or. has been made. He has decided. and is to be strictly pursued. And this power has been exercised when the last act. It is a time must be when the constitutional power of appointment has been ministerial act which the law enjoins on a particular officer for a exercised. 137. It is the respects the appointment. By that act it is enacted. no other act is to be performed and record. at furthest. an inchoate and incomplete transaction. 159] the commission is valid. made. under the over an officer. and [5 U. commission. which gives force and effect to the commission. 'and shall make out No other solemnity is required by law. when the commission was signature. conclusive evidence that the appointment is made. The time for deliberation has then president. in Some point of time must be taken when the power of the executive this respect. is seems to have prevailed with the legislature. appointment. It attests. if the judgment of the unequivocal act.' . but even to the converting the department [5 U. without the special warrant of the president therefor. is complete. necessarily excludes the idea of its being. so far as it accurately marked out by law. not removable at his will.

the delivery of the deed of appointment. to perform directs the secretary to affix the seal to the commission after it shall the duties of that office. necessary to its completion. if to miscarry. and among them. A formal delivery to the person is not copy would be complete evidence that the original had existed. the merely evidence of an appointment. and which is the commission may have been assimilated to a deed. certain solemnities are required by made it so. The transmission of the commission is a practice directed by convenience. If it was necessary. which solemnities are the evidences [5 U. but not that the original had . It has also occurred as possible. let it be conceded. might deliberately examined.After searching anxiously for the principles on which a contrary president. should himself take means to procure his commission. appointed to any office. It is not necessary that the livery should be made personally to the It may have some tendency to elucidate this point. The act of congress has expressly But in all cases of letters patent. claimed for its support. to the validity of mere act of the president. to every intent and purpose. delivery is essential. and barely possible. have been very transmission of the commission. but is itself the actual transmission of the commission is the sole act of the officer to whom appointment. that the Such as the imagination of the court could suggest. none have been found which appear of This objection therefore does not touch the case. It cannot therefore be necessary to In considering this question. since it necessary to authorize a person. must be made by the president also. the appointment would not be the less valid on that This idea is founded on the supposition that the commission is not account. 137. it would not be necessary to law. under the constitution. it has been delivered or fraud. it has been conjectured that the constitute the appointment which must precede it. fire or theft.S. In such when executed and given to the secretary for the purpose of being a case. commission is transmitted to a person already appointed. The law would seem to whether the possession of the original commission be indispensably contemplate that it should be made to the secretary of state. sufficient force to maintain the opposite doctrine. but not by law. record of the office of the secretary of state. is established. recorded. and after allowing them all the weight which it be deemed necessary to complete the right of the plaintiff. that the circumstances which can have no influence on the appointment. But for the that duty is assigned. but accident necessary to give validity to the commission. If the executive required that every person which. The validity of the instrument. to inquire. Not only negligence. and transmitted to the party. and the acceptance thereof. they do not shake the opinion which has been formed. The appointment is the sole act of the president. If then the act of livery be commission would lose the office. I presume it could not be doubted. a supposition by no means unquestionable. opinion may be supported. grantee of the office: it never is so made. 160] of the prove that the original had been transmitted and afterwards lost. would be. equal to the original. not to a person to be appointed or not. A principle. and may be accelerated or retarded by purpose of examining this objection fairly. To give that copy validity. might deprive an individual of his office. and the seal of the United States. then a loss of the have been signed by the president. appointed to an office. the sign manual of the that the appointment had been made. to be made by the should happen to get into the post-office and reach him in safety. but that a copy from the sealed. are those solemnities. as the letter enclosing the commission The appointment being. In cases of commissions. or president personally. appears possible to give them.

not from the transmission or acceptance of his would not affect the operation of the copy. the appointment is not revocable and demanding it on the terms prescribed by law? cannot be annulled. be paid by a person requiring a copy are ascertained by law. that circumstance from his appointment. But having once made the appointment. The discretion of the executive is to be exercised until the equally with the original. and he has the absolute. not. the successor is nominated in the place of the any instrument whatever. It is therefore decidedly the opinion of the court. that when a In the case of commissions. 161] A commission bears date. It has conferred legal rights which cannot be resumed. Can a because the act is at any time revocable. The right to the to give validity to an appointment. have been performed. they are in law recorded.S. attest his appointment. the instrument is in law considered as recorded. appointment is the sole act of the president. and the commission may keeper of a public record erase therefrom a commission which has be arrested. posterior to the appointment. and whether inserted in the book or United States has been affixed to it by the secretary of state. . If the transmission of a commission be not considered as necessary where by law the officer is not removable by him. then. Marbury. authorize the justice of peace to proceed in the performance of his duty. the appointment is record them. still less is its acceptance. sole act of the officer. creating the office gave the officer a right to hold for five years independent of the executive. and the order for that purpose has been person who [5 U. When therefore they are signed and sealed. is apparent from but vested in the officer legal rights which are protected by the laws the whole tenor of its conduct. since his commission was signed by the president neither the one nor the other is capable of rendering the appointment and sealed by the secretary of state. 162] has declined to accept. so may he refuse to accept: but Mr. and not in the given. his power over the office is terminated in all cases. 137. When a person. and the salary of the officer commences the original had been mislaid in the office of state. equally with the original. When all the requisites commission. appointed to any office. If indeed it should appear that [5 U. the appointment was not revocable.S. of his country. and as the law a nonentity. and that the commission is complete when the seal of the for their being recorded is given. That this is the understanding of the government. the A copy of this record is declared equal to the original. Where an officer is removable at the will of the executive. and the fees to circumstance which completes his appointment is of no concern. and is. Such a copy would. the acceptance is the unconditional power of accepting or rejecting it. the law orders the secretary of state to commission has been signed by the president. if still in the office. But when the officer is not removable been recorded? Or can he refuse a copy thereof to a person at the will of the executive.been transmitted. was appointed. because it would. in plain common sense. refuses to have been performed which authorize a recording officer to record accept that office. 137. although the place of the person who had been previously in office and had manual labour of inserting it in a book kept for that purpose may not created the original vacancy. the order made. The office is then in the person appointed. appointment has been made. As he may resign.

but violative of a vested legal right. every injury its proper redress. guardianship of the laws. are. he says. In pursuing this inquiry the first his country afford him a remedy? [5 U. and that right has been violated. 137. is not to be admitted. but that every The government of the United States has been emphatically termed act of duty to be performed in any of the great departments of a government of laws. that every right. By the act concerning invalids. If he has a right.' worthlessness of the thing pursued. is. consider such injuries as are cognizable by the courts of common law. and not of men. The office of justice of peace in the district of In the third volume of his Commentaries. that has been secured. for that belonging to the executive department alone. if the laws furnish no remedy for the violation of a vested legal right. 164] with that class of cases which come under the the protection of the laws. that did not fall within the exclusive cognizance withholding a commission to be considered as a mere political act of either the ecclesiastical. for it is a settled and invariable principle in the laws of executive. therefore. it is therefore worthy of the attention and two cases in which a remedy is afforded by mere operation of law. One of the description of damnum absque injuria-a loss without an injury. And herein I shall for the present only remark.' That there may be such cases is not to be questioned. that all possible Is it in the nature of the transaction? Is the act of delivering or injuries whatsoever.S. It will certainly cease to government constitutes such a case. Blackstone states Columbia is such an office.' he says. It has been created by special act of congress. must arise from the peculiar character of the case. page 23. 'it is a general and indisputable rule. the injured England. This brings us to the second inquiry. 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. which is. and 'In all other cases. that the injured party can be And afterwards. there is also a legal remedy by suit or appointed to fill it. deserve this high appellation. page 109 of the same volume. whenever he receives an injury. of honour or of profit. 137. when withheld. so far as the laws can give security to the person where there is a legal right. 'I am next to alleged to be without remedy. It behoves us then to inquire whether there be in its composition any ingredient which shall exempt from legal investigation. It has received that attention and guardianship. military. If he . whether this can be arranged [5 of civil liberty certainly consists in the right of every individual to claim U. and individual has no remedy. for five years. and for any misconduct respecting which. It is not then on account of the action at law whenever that right is invaded. and it is never fails to comply with the judgment of his court.To withhold the commission. believed never can be considered as comprehending offices of trust. 163] The very essence question which presents itself. must have a remedy. do the laws of injured party from legal redress. is an act deemed by the court If this obloquy is to be cast on the jurisprudence of our country.S. or exclude the 2. for the performance of very reason. In Great Britain the king himself is sued in the respectful form of a petition. or maritime tribunals. within the cognizance of the common law courts of which entire confidence is placed by our constitution in the supreme justice. first duties of government is to afford that protection. and he This description of cases never has been considered. passed in June 1794. it not warranted by law.

and discretion.' In such cases. and whatever opinion may be By the act passed in 1796. would the wounded veteran be without It follows then that the question. in matters of right. their acts are his acts. duties. 165] tained.S. the law. and being entrusted to the executive. can it be imagined that the law furnishes to the injured person no The acts of such an officer. on paying his purchase used. nor can it derive countenance from the doctrines of the common law. still there exists. always depend on the nature of that act. It is further enacted that all perceived by adverting to the act of congress for establishing the patents shall be countersigned by the secretary of state. but furnishes various methods of authorized to appoint certain officers. should refuse a copy of president. as an officer. conscience. If the secretary of state should choose to prescribed by that act. be much difficulty in this principle will certainly never be main. amenable to the laws of their country? In some instances there may be difficulty in applying the rule to Whatever the practice on particular occasions may be. the president of the United the executive is conclusive. not on producing to the secretary of state the receipt of the treasurer individual rights. it. 137. and department of foreign affairs. when the rights of individuals are dependent on the performance of . and can exist. It is not believed that any person whatever would attempt to maintain But when the legislature proceeds to impose on that officer other such a proposition. and is accountable rights of property can scarcely be committed by the crown without only to his country in his political character. can never be examinable remedy? by the courts. 137. the president is invested stating that personal injury from the king to a subject is presumed to with certain important political powers. when he is directed peremptorily to perform certain acts. This officer. 166] be impossible. The subjects are political. III. The application of this remark will be States is authorized to grant him a patent. must directs the performance of an act in which an individual is interested. authorizing the sale of the lands above entertained of the manner in which executive discretion may be the mouth of Kentucky river. is to conform precisely to the will of the withhold this patent. Blackstone. laying down the rule. To aid him in the performance of these duties. the theory of particular cases. no power to control that money. king has been deceived and induced to do a temporary injustice. He is the mere organ by whom that will is communicated. and others not. No act of the legislature confers so extraordinary a privilege. After By the constitution of the United States.[5 U. 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 If some acts be examinable. becomes completely entitled to the property purchased. or the patent being lost. says.should refuse to do so. They respect the nation.S. it is believed. as his duties were recorded in his office. the purchaser. 'but injuries to the exercise of which he is to use his own discretion. 255. who act by his authority and in detecting the errors and misconduct of those agents by whom the conformity with his orders. and to his own the intervention of its officers: for whom. whether the legality of an act of the remedy? Is it to be contended that where the law in precise terms head of a department be examinable in a court of justice or not. he is entertains no respect or delicacy. there must be some rule made? Is it to be contended that the heads of departments are not of law to guide the court in the exercise of its jurisdiction. p. the decision of upon a certificate required by the law. but there cannot. in the [5 U. Vol.

removable at the will of the president.S. for example. he has a consequent right cannot be extinguished by executive authority. right either to the commission which has been made out for him or to merely to execute the will of the president. That. by law. and the decision of the court upon it must depend on the nothing can be more perfectly clear than that their acts are only opinion entertained of his appointment. They 2. and of the existed cannot be made never to have existed. and individual rights depend upon the performance of that duty. But as a fact which has conclusive testimony of the verity of the signature. When he has made an appointment. it That question has been discussed. and are not resumable by the president. he has 1. that the latest seems equally clear that the individual who considers himself injured point of time which can be taken as that at which the appointment has a right to resort to the laws of his country for a remedy. and must be tried by the judicial authority. 137. is. he is so far the officer of the law. The question whether a right has vested or not. judicial. for which the laws of his country afford him a remedy. it is equally a question examinable in a which the executive possesses a constitutional or legal discretion. let us inquire how it applies to the case under the commission. are political powers. He is entitled to the remedy for which he applies. seal of the United States. in consequence of which a suit had been instituted against 1. the officer be removable at the will of for the county of Washington in the district of Columbia. and that the the president. If. [5 U. or rather to act in cases in a copy of that commission. that where the heads of So. The nature of the writ applied for. 167] The power of nominating to the senate. court. and proceeded to act as one. and his discretion has been completely the United States appointed him a justice [5 U. . It remains to be inquired whether. 168] of peace applied to the case. was complete. politically examinable. If. was when. after the signature of the president. 3. It is then the opinion of the court. And. and evidenced. and that the appointment conferred cannot be annihilated. the rights he has acquired are protected by the law. consideration of the court. then a new appointment may be immediately made. authority.those acts. from any other source. the seal of the United States was affixed to the If this be the rule.S. Marbury had taken the oaths of a magistrate. and the opinion is. a refusal to deliver which is a plain violation of privilege of asserting them in like manner as if they had been derived that right. if he conceives that by virtue of his appointment he has a legal departments are the political or confidential agents of the executive. is and the rights of the officer are terminated. is amenable to the laws him. to be exercised by the president according to his own discretion. for his conduct. Marbury. 137. in which his defence had depended on his being a magistrate. The conclusion from this reasoning is. Mr. the president of exercised his whole power. and he has the to the commission. and the power of appointing the person nominated. This depends on. affixed thereto by the secretary of state. and consequently if the officer is by law not on him a legal right to the office for the space of five years. the appointment completion of the appointment. and cannot at his discretion sport away the vested the validity of his appointment must have been determined by judicial rights of others. having this legal title to the office. That by signing the commission of Mr. But where a specific duty is assigned by law. in its nature.

states with much precision and explicitness the cases in which United States and the heads of departments. assertion. and which the court of king's may be directed. 'a command issuing in the king's name These circumstances certainly concur in this case. and duty. would be directed to an officer of government. from the court of king's bench. must be one to whom. 170] by some. submitted to the executive. this court ought to which claims it is the duty of that court to attend. by an individual. 137. as the writ expresses. can never be made and its mandate to him would be.' 1. in 3 Burrows. such writ appertains to their office and duty. to use the words of Blackstone. or at least supposes. With respect to the officer to whom it would be directed. not to inquire how the to the general doctrines that have been just quoted. which show how far the practice has conformed is. on legal principles. has a right to execute an office of public concern. 'to in this court. to decide on the rights of individuals. Blackstone. necessarily renders this writ may be used. defines a mandamus to be. or inferior court of judicature within the king's dominions. as an attempt to intrude and upon reasons of public policy. to be other specific and legal remedy. so absurd and excessive. subsisting between the president of the et al. to render the mandamus a proper remedy. and excites some hesitation 'Whenever. or which are. in the case of The King v. in the words of 1. be considered [5 U. the applicant. Questions. 'this writ ought to be executive. Still. or executive officers. and where in justice and good government there ought to be It is scarcely necessary for the court to disclaim all pretensions to one. should at first view assist by mandamus. upon reasons of justice. The power of this court. 169] has no other specific legal remedy. do a particular thing therein specified. if awarded. the officer to whom it requiring them to do some particular thing therein specified which is to be directed. Baker intimate political relation. of his legal claims in a court of justice. the is kept out of possession. many others were not have been entertained for a moment.' In the same case he says. to 137.S. executive. or dispossessed of such right. and directed to any person. solely. The province of the court relied on at the bar. by the This writ. 1266. perform duties in which they have a discretion. Lord Mansfield. or exercise a franchise (more especially if it Impressions are often received without much reflection or be in a matter of public concern or attended with profit).S. constitution and laws. and the person applying for it must be without any bench has previously determined. in the third volume of his Commentaries.' Or. page 110. could In addition to the authorities now particularly cited.' says that very able judge. in this case. consonant to right and justice. to preserve peace. which appertains to his office . An extravagance.2. and which the court has previously determined or at least supposes to be consonant to right and justice.' such a jurisdiction. in their nature political. and it is not wonderful that in such a case as this. and to intermeddle with the prerogatives of the good government. used upon all occasions where the law has established no specific remedy. The nature of the writ. office. order and into the cabinet. and a person examination. any legal investigation of the acts of one of those high officers peculiarly irksome. The Lord Mansfield. and is kept out of possession of that right. and [5 U. 'there is a right to execute an with respect to the propriety of entering into such investigation. perform a service. as well as delicate. corporation.

and After the passage of this act. be such a case as would. and being compelled to obey the to act and to report in that character. but the question whether complained of. which. would be rejected without hesitation. it respects a paper. in consequence of that report. it is [5 U. although the act of placing such persons issuing a mandamus is to be determined. and to a copy of which the law gives a right. thinking that the law might be pretended that his office alone exempts him from being sued in be executed by them in the character of commissioners. in in February 1793. according not perceived on what ground the courts of the country are further to law. under act. so far as the duty was imposed on the courts. but on particular acts of congress and the general It must be well recollected that in 1792 an act passed. in a court of justice. what is there in the exalted station of the officer. but placed on the pension list. which has received all the pension list a person stating himself to be on the report of the judges. How then can his office exempt him from this particular mode of deciding on the legality of his conduct. authorize the process? those persons.S. to directed to the secretary at war. if the case This law being deemed unconstitutional at the circuits. that any application to a court to control. conjunction with the attorney general. placed under the particular direction of the president. commanding him to place on the record a commission. that right to be done to an on the payment of ten cents. were any other individual the party and a different system was established. or This opinion seems not now for the first time to be taken up in this shall forbid a court to listen to the claim. properly the nature of the thing to be done. or a patent for land. or to issue a mandamus. in which he is the mere organ of executive will. is upon record. his conduct. or to give a copy of such record. injured individual. in any respect. in such cases. congress passed an act 137. department acts in a case in which executive discretion is to be exercised. absolute rights of individuals. was deemed colour of his office. that the propriety or impropriety of determinable in the courts. was a legal question. a mandamus was moved for. directing the principles of law? secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him by the circuit courts. to be It is not by the office of the person to whom the writ is directed. if it be no intermeddling with a subject. which shall bar a citizen from asserting. control.But. as for example. 171] again repeated. to be therefore is never presumed to have forbidden. as commissioners. 172] States on the validity of any such rights. and the performance of which the president cannot lawfully forbid. in the performance of which he is not claimed under the act aforesaid. if this be not such a question. who had been reported by the judges. but some of the judges. . was repealed. than if the same services were to be performed by over which the executive can be considered as having exercised any a person not the head of a department. That this question might be properly settled. country. making it the duty of the secretary of war. judgment of the law.S. by which an individual sustains an injury. Where the head of a on the list was to be performed by the head of a department. it cannot unconstitutional. which If one of the heads of departments commits any illegal act. his legal rights. directing the performance of a duty. proceeded the ordinary mode of proceeding. 137. it is into the secrets of the cabinet. were entitled. excused from the duty of giving judgment. not depending on executive discretion. if so far from being an intrusion legal solemnities. to take such measures as might be necessary to obtain an adjudication of the supreme court of But where he is directed by law to do a certain act affecting the the United [5 U.

found it necessary to pursue the mode prescribed by The act to establish the judicial courts of the United States the law subsequent to that which had been deemed unconstitutional. of all claims of that description. but it is placed in his hands extended to all cases arising under the laws of the United States. now advanced is by no means a novel one. much reason to believe.There is. but that a mandamus ought not to issue in that case-the decision necessarily to be made if This. for the person entitled to it. now moved for. in some form. been appointed to an office. and by the highest law officer of the United States. in cases in order to place themselves on the pension list. of which an individual had a vested interest. Marbury. and assigning the duties which its words purport to confer vested legal right. than by another person. This power is expressly the secretary of state to send it to him. then. that a mandamus would not lie to the head of a department. in which case a mandamus would be improper. to that commission. he The constitution vests the whole judicial power of the United States has a right to the commission which the secretary has received from in one supreme court. The judgment in that case is understood to have decided the merits Whether it can issue from this court. therefore. on the report of the commissioners. He has and assign. But this doubt has yielded to the consideration that the judgment in detinue is for the thing itself. or to nothing. enjoined by law. authorizes the supreme court 'to issue writs of mandamus. The value of a public office When the subject was brought before the court the decision was. in the performance by obtaining the commission. authority of the United States. This difference is not considered as affecting the case. The act of congress does not indeed order from time to time. 173] appointed. 137. of which the executive cannot deprive him. and the applicant not. . the president for his use. the from Mr. not to be sold. holding an office under the performance of an act expressly enjoined by statute.S. under the authority of the The doctrine. and being so [5 U. or a copy of it from the record. may be exercised over the present him. United States. and therefore absolutely incapable of conferring the has already been stated that the applicant has. and if this court is not authorized to issue a writ of It is to deliver a commission. and the persons. and it only remains to be legal right. It unconstitutional. ordain and establish. and cannot be more lawfully withheld by and consequently. was deemed by the head of a specific legal remedy for the commission which has been withheld department. is incapable of being ascertained. warranted by the principles and usages of law. or its value. that this mode of trying It was at first doubted whether the action of detinue was not a the legal right of the complainant. it must be because the law is are silent. has a right to the office itself.' It is true that the mandamus. is precisely within the letter of the description. is a plain case of a mandamus. being a person. most proper which could be selected for the purpose. is not for the The secretary of state. or persons holding office. He will obtain the office directing him to perform an act. on which subjects the acts of congress mandamus to such an officer. inquired. therefore. either to deliver the the report of the commissioners did not confer on the applicant a commission. or a copy of it from the record. from which he is not removable at the will of the executive. to any courts appointed. and such inferior courts as congress shall. a authority.

then enumerates its powers. is no restriction.[5 U. is form without them to exercise appellate jurisdiction. because the right claimed is given by a law of It cannot be presumed that any clause in the constitution is intended the United States. and in this case. .' further restriction on the powers of congress had been intended. That they should have appellate jurisdiction in all other cases. to be without effect. and original To enable this court then to issue a mandamus. and the clause. if such is to be the construction. negative of other exercised in a variety of forms. substance. the plain import of the words seems to be. words be deemed exclusive of original jurisdiction. assigning original jurisdiction to the supreme court. or to be necessary to enable the distribution of jurisdiction made in the constitution. as to define the jurisdiction of the supreme court by declaring the cases in which it shall take If it had been intended to leave it in the discretion of the legislature to original jurisdiction. if no jurisdiction. that is an additional reason for subsequent part of the section is mere surplusage. where the constitution has declared their jurisdiction shall be original. and proceeds so far to distribute them. in their operation. [5 U. and those in which a state shall cases which might be supposed to affect them. and so many inferior courts as the specified in the article which has been recited. It has been stated at the bar that the appellate jurisdiction may be Affirmative words are often. and not original. and therefore such construction is inadmissible. it must be shown to jurisdiction where the constitution has declared it shall be appellate.S. that as the original grant of jurisdiction exceptions as congress might make. contains no negative or restrictive words. 137. If any other construction would power. This is true. assign original jurisdiction to that court in other cases than those divides it into one supreme. is entirely without rejecting such other construction. a negative or exclusive legislature that a mandamus should be used for that purpose. 175] If the solicitude of the In the distribution of this power it is declared that 'the supreme court convention. it would certainly have been class of cases its jurisdiction is original. and for adhering to the obvious meaning. the power remains to the legislature to When an instrument organizing fundamentally a judicial system. unless the words require it. liberty to give this court appellate jurisdiction. belong to the judicial power of the United States. If congress remains at meaning. induced a shall have original jurisdiction in all cases affecting ambassadors. and not appellate. that sense must be given to them or they have no operation at all. provided those cases legislature may ordain and establish. and that in others it shall take appellate apportion the judicial power between the supreme and inferior courts jurisdiction. in the useless to have proceeded further than to have defined the judicial other it is appellate.S. and the tribunals in which it should be vested. yet the clause would be a party. and that if it be the will of the objects than those affirmed. yet the jurisdiction must be appellate. the supreme court shall have appellate have proceeded no further than to provide for such cases. that in one according to the will of that body. provision that the supreme court should take original jurisdiction in other public ministers and consuls. unless the to the supreme and inferior courts is general. will must be obeyed. The render the clause inoperative. 174] case. In all other cases. be an exercise of appellate jurisdiction. 137. with such It has been insisted at the bar. respecting our peace with foreign powers. not original.

shall most conduce to limit a power in its own nature illimitable. and This theory is essentially attached to a written constitution. supposed to have been long and well established. 176] passed by those intended to be restrained? The distinction between appellate. or. Although. not of an intricacy proportioned to its it. To to courts. and can must be. that an act of the legislature repugnant to the constitution is seldom act. therefore. Between these alternatives there is no middle ground.It is the essential criterion of appellate jurisdiction. and to what purpose is that paper. so established are deemed fundamental. paramount law. is alterable when the legislature shall please to alter United States. to their own happiness. but to original jurisdiction. if those case as this. yet to issue such a writ to an officer for the delivery of a what purpose are powers limited. and therefore seems not to belong to [5 U. This original and supreme will organizes the government. And the nation. and is assigns to different departments their respective powers. Neither is it necessary in such a a government with limited and unlimited powers is abolished. that the mandamus to public officers. and become the law of the land. then a legislative act contrary to the constitution is not law: if the latter part be true. they are designed to be permanent. and that those create that case. from which they proceed. 137. such principles as. in their opinion. that the establishing the judicial courts of the United States. It is not therefore to be lost those departments. by the act obligation. therefore. or it is on a level with ordinary legislative acts. nor can it nor ought it to be frequently repeated. It seems only necessary to recognise certain principles. to enable the court to exercise its appellate jurisdiction. and consequently the theory of every such government as the authority. void. It is a proposition too plain to be contested. for their future written constitutions are absurd attempts. the constitution is written. unchangeable by The question. if these limits may. can be exercised. then That the people have an original right to establish.S. It may consequently to be considered by this court as one of the either stop here. to issue writs of constitution controls any legislative act repugnant to it. The corrects the proceedings in a cause already instituted. to decide it.S. is in effect the same as to sustain an original action for that limitation committed to writing. or establish certain limits not to be transcended by fundamental principles of our society. repugnant to the constitution. be paper. and it becomes necessary to inquire whether a jurisdiction. is supreme.[5 U. at any time. The contemplate them as forming the fundamental and paramount law of principles. The constitution is either a superior. The exercise of this original right is a very Certainly all those who have framed written constitutions great exertion. 177] hibited and acts allowed are of equal The authority. that it revises and The government of the United States is of the latter description. government. but. a mandamus may be directed limits may not be mistaken or forgotten. appears not to be warranted by the legislature may alter the constitution by an ordinary act. whether an act. so conferred. 137. on the part of the people. therefore. and does not powers of the legislature are defined and limited. given to the supreme court. sight of in the further consideration of this subject. . constitution. and if acts pro. can ordinary means. is the basis on which the whole American fabric has been erected. limits do not confine the persons on whom they are imposed. is a question deeply interesting to the like other acts. If the former part of the alternative be true. interest. happily.

and he constitution is superior to any ordinary act of the legislature. in America where written constitutions have been It is emphatically the province and duty of the judicial department to viewed with so much reverence. is in reality effectual. and only see the law. the peculiar expressions of the constitution of the United States must of necessity expound and interpret that rule. is void. that if the legislature constitution. Those who apply the rule to particular cases. judges. repugnant to the constitution. intention of those who gave this power. the constitution. bind the courts and oblige them to which professes to restrict their powers within narrow limits. 178] So if a law be in opposition to the constitution: if both The judicial power of the United States is extended to all cases the law and the constitution apply to a particular case. in rendered in such a case? ought the judges to close their eyes on the practice. constitution. an absurdity too gross to be insisted on. That it thus reduces to nothing what we have deemed the greatest receive a more attentive consideration. the courts must decide on the operation of each. however. It would be giving to the . which. notwithstanding the express prohibition. with each other. does it prescribing limits. does legislature a practical and real omnipotence with the same breath it. and declaring that those limits may be passed at constitute a rule as operative as if it was a law? This would be to pleasure. as a paramount law. must govern the case to which they both apply. for rejecting the construction. constitution should not be looked into? That a case arising under the disregarding the law: the court must determine which of these constitution should be decided without examining the instrument conflicting rules governs the case. are reduced to the There are many other parts of the constitution which serve to necessity of maintaining that courts must close their eyes on the illustrate this subject. constitutions. though it be not law. so that the arising under the constitution. [5 U. But say what the law is. and a suit instituted to recover it. It would declare. This is too extravagant to be maintained. improvement on political institutions-a written constitution. It would declare that an act. [5 U. and would seem. according to the or of flour.S. in other words. what part of it are they forbidden to read.S. 179] Could it be the court must either decide that case conformably to the law. And if they can open it at all. the constitution must be looked into by the not such ordinary act. Ought judgment to be principles and theory of our government. notwithstanding its invalidity. If then the courts are to regard the constitution. It is declared that 'no tax or duty shall be laid on articles exported This doctrine would subvert the very foundation of all written from any state.' Suppose a duty on the export of cotton. shall do what is expressly forbidden. in using it. to say that. It shall. It is give it effect? Or. in court. completely obligatory. is yet. 137. 137. overthrow in fact what was established in theory. would of itself be sufficient. If two laws conflict furnish additional arguments in favour of its rejection. such act. and In some cases then. the disregarding the constitution. This is of the very essence of under which it arises? judicial duty. at first view. or conformably to the constitution. and see only the law.If an act of the legislature. is entirely void. of tobacco. or to obey? Those then who controvert the principle that the constitution is to be considered.

and that courts. and do equal right to the poor and to the rich. this is worse than solemn mockery. that in declaring what confession in open court. It prescribes. that the framers of the consti. too.' shall be the supreme law of the land. imposed by the legislature. in an especial manner. if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by If. and not the laws of the United States generally. To prescribe. for constitution is void. as well as other department contemplated that instrument as a rule for the government of courts.' constitution of the United States. sufficient for conviction. 180] tution constitution is void. a rule of evidence not to be only which shall be made in pursuance of the constitution. the constitution itself is first Here the language of the constitution is addressed especially to the mentioned. and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding. directly for them. is completely The rule must be discharged. violating what they swear to support! are bound by that instrument. the particular phraseology of the constitution of the United This oath certainly applies. or on It is also not entirely unworthy of observation. have that departed from.' . becomes equally a crime. that a law repugnant to the apparent. that a law repugnant to the were to be used as the instruments. demonstrative of the legislative opinion on this subject. 137. It is in these words: 'I do solemnly swear that I will administer justice without respect to persons.S. however. but those courts. it is essential to all written constitutions. must the constitutional principle yield to the legislative act? Thus. The oath of office. must the court condemn to death those victims whom the constitution endeavours to preserve? If such be the real state of things. supposed to be From these and many other selections which might be made.[5 U. If the legislature should change that rule. or to take this oath. Why otherwise does it direct the judges to take an oath to support it? Thus.The constitution declares that 'no bill of attainder or ex post facto law Why does a judge swear to discharge his duties agreeably to the shall be passed. How immoral to impose it on them. one witness. 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act. as well as of the legislature. if they essential to all written constitutions. prosecuted under it.' says the constitution. or a confession out of court. agreeably to the constitution and laws of the United States. such a bill should be passed and a person should be him. and the knowing instruments. and declare rank. the particular phraseology of the constitution of the United States confirms and strengthens the principle. 'No person. as well as other departments. to their conduct in States confirms and strengthens the principle. and that courts. supposed to be their official character.