Legal Environment of Business Report

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3 of 330 DOCUMENTS
WILLIAM MARBURY v. JAMES MADISON, SECRETARY OF STATE OF THE
UNITED STATES.
SUPREME COURT OF THE UNITED STATES
5 U.S. 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352; 1 Cranch 137
February 24, 1803, Decided
PRIOR HISTORY: [***1] AT the last term, viz. December term, 1801, William Marbury, Dennis Ramsay, Robert
Townsend Hooe, and William Harper, by their counsel, Charles Lee, esq. late attorney general of the United States,
severally moved the court for a rule to James Madison, secretary of state of the United States, to show cause why a
mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as
justices of the peace in the district of Columbia. This motion was supported by affidavits of the following facts; that
notice of this motion had been given to Mr. Madison; that Mr. Adams, the late president of the United States,
nominated the applicants to the senate for their advice and consent to be appointed justices of the peace of the district of
Columbia; that the senate advised and consented to the appointments; that commissions in the due form were signed by
the said president appointing them justices, &c. and that the seal of the United States was in due form affixed to the said
commissions by the secretary of state; that the applicants have requested Mr. Madison to deliver them their said
commissions, who has not complied with that request; and that [***2] their said commissions are withheld from them;
that the applicants have made application to Mr. Madison as secretary of state of the United States at his office, for
information whether the commissions were signed and sealed as aforesaid; that explicit and satisfactory information has
not been given to that enquiry, either by the secretary of state or by any officer of the department of state; that
application has been made to the secretary of the Senate for a certificate of the nomination of the applicants, and of the
advice and consent of the senate, who has declined giving such a certificate; whereupon a rule was laid to show cause
on the 4th day of this term. This rule having been duly served,
DISPOSITION: The rule was discharged.
CASE SUMMARY:
PROCEDURAL POSTURE: At a prior term, the Court granted an applicant a rule directing the Secretary of State of
the United States to show cause why a mandamus should not issue commanding him to deliver to the applicant his
commission as a justice of the peace. No cause was shown, so the applicant moved for a mandamus.
OVERVIEW: The applicant and two others contended that the late President of the United States had nominated them
to the Senate and that the Senate had advised and consented to their appointments as justices of the peace. The
commissions were signed by the late President and the seal of the United States was affixed to the commissions by the
Secretary of State. The commissions were withheld from the applicants and they requested their delivery. The Court
granted a rule to show cause, requiring the Secretary to show cause why a mandamus should not issue to direct him to
deliver to the commissions. No cause was shown and the applicant filed a motion for a mandamus. The Court
determined that the applicant had a vested legal right in his appointment because his commission had been signed by the
President, sealed by the Secretary of State, and the appointment was not revocable. The Court found that because the
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applicant had a legal title to the office, the laws afforded him a remedy. However, the Court held that § 13 of the Act of
1789, giving the Court authority to issue writs of mandamus to an officer, was contrary to the Constitution as an act of
original jurisdiction, and therefore void.
OUTCOME: The rule was discharged.
CORE TERMS: appointment, mandamus, secretary of state, appointed, seal, legal rights, original jurisdiction,
removable, affixed, act of congress, vested, person appointed, written constitutions, secretary, authorize, signature,
recorded, patent, heads of departments, repugnant, solemnity, inferior, supposed, enquire, declare, judicial power,
transmission, transmitted, conclusive, examinable
LexisNexis(R) Headnotes
Constitutional Law > The Presidency > Appointment of Officials
Military & Veterans Law > Defense Powers > U.S. President
[HN1] U.S. Const. art. II, § 2 declares, that the president shall nominate, and, by and with the advice and consent of the
senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose
appointments are not otherwise provided for. U.S. Const. art. II, § 3 declares, that he shall commission all the officers of
the United States.
Administrative Law > Separation of Powers > Executive Controls
Constitutional Law > The Presidency > Appointment of Officials
[HN2] 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.
Administrative Law > Separation of Powers > Executive Controls
Constitutional Law > Congressional Duties & Powers > General Overview
Constitutional Law > The Presidency > Appointment of Officials
[HN3] U.S. Const. art. II, § 2 authorizes Congress to vest, by law, the appointment of such inferior officers, as they
think proper, in the President alone, in the courts of law, or in the heads of departments.
Constitutional Law > The Presidency > Appointment of Officials
[HN4] 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.
Administrative Law > Separation of Powers > Executive Controls
Constitutional Law > The Presidency > Appointment of Officials
[HN5] 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.
Constitutional Law > The Presidency > Appointment of Officials
[HN6] 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.
Constitutional Law > The Presidency > Appointment of Officials
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[HN7] 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.
Constitutional Law > Substantive Due Process > Scope of Protection
Governments > Legislation > Statutory Remedies & Rights
[HN8] 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.
Governments > Legislation > Statutory Remedies & Rights
[HN9] Where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.
Constitutional Law > The Judiciary > Case or Controversy > Political Questions
[HN10] 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.
Constitutional Law > The Presidency > Foreign Affairs
Constitutional Law > The Judiciary > Case or Controversy > Political Questions
Constitutional Law > Separation of Powers
[HN11] By the Constitution of the United States, the President is invested with certain important political powers, in the
exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to
his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act
by his authority and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be
entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to
control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to
the executive, the decision of the executive is conclusive.
Constitutional Law > The Judiciary > Case or Controversy > Political Questions
Governments > Legislation > Statutory Remedies & Rights
[HN12] 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.
Constitutional Law > Separation of Powers
Governments > Legislation > Statutory Remedies & Rights
[HN13] The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial
authority.
Civil Procedure > Remedies > Writs > Common Law Writs > Mandamus
[HN14] Whenever there is a right to execute an office, perform a service, or exercise a franchise (more specifically if it
be in a matter of public concern, or attended with profit) and a person is kept out of the possession, or dispossessed of
such right, and has no other specific legal remedy, the 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. 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.
Civil Procedure > Remedies > Writs > Common Law Writs > Mandamus
[HN15] To render the mandamus a proper remedy, the officer to whom it is directed, must be one to whom, on legal
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principles, such writ may be directed; and the person applying for it must be without any other specific and legal
remedy.
Civil Procedure > Trials > Jury Trials > Province of Court & Jury
Constitutional Law > The Judiciary > Case or Controversy > Political Questions
Constitutional Law > Separation of Powers
[HN16] 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.
Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview
Civil Procedure > Appeals > Appellate Jurisdiction > State Court Review
Constitutional Law > The Judiciary > Jurisdiction > General Overview
[HN17] The Constitution vests the whole judicial power of the United States in one supreme court, and such inferior
courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising
under the laws of the United States; and consequently, in some form, may be exercised over the present case; because
the right claimed is given by a law of the United States. In the distribution of this power it is declared that the supreme
court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in
which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.
Civil Procedure > Jurisdiction > Jurisdictional Sources > Constitutional Sources
Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview
Constitutional Law > The Judiciary > Jurisdiction > General Overview
[HN18] If Congress remains at liberty to give the Supreme 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.
Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview
Civil Procedure > Appeals > Appellate Jurisdiction > State Court Review
Constitutional Law > Supremacy Clause > General Overview
[HN19] When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many
inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute
them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction,
and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases
its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would
render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their
obvious meaning.
Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview
Civil Procedure > Remedies > Writs > Common Law Writs > Mandamus
Civil Procedure > U.S. Supreme Court Review > General Overview
[HN20] It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause
already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to
issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that
paper, and therefore seems not to belong to appellate, but to original jurisdiction.
Constitutional Law > Supremacy Clause > General Overview
[HN21] The Constitution of the United States establishes certain limits not to be transcended by the different
departments of the government. 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
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distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the
persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition
too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may
alter the Constitution by an ordinary act.
Constitutional Law > Supremacy Clause > General Overview
[HN22] 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.
Constitutional Law > The Judiciary > Case or Controversy > Constitutionality of Legislation > General Overview
Constitutional Law > Separation of Powers
[HN23] It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the
rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts
must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the
Constitution apply to a particular case, so that the court must either decide that case conformably to the law,
disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which
of these conflicting rules governs the case. This is of the very essence of judicial duty.
Constitutional Law > The Judiciary > Case or Controversy > Constitutional Questions > General Overview
Constitutional Law > The Judiciary > Jurisdiction > General Overview
Constitutional Law > Supremacy Clause > General Overview
[HN24] The judicial power of the United States is extended to all cases arising under the Constitution.
Constitutional Law > Supremacy Clause > General Overview
[HN25] A law repugnant to the Constitution is void; the courts, as well as other departments, are bound by that
instrument.
LAWYERS’ EDITION HEADNOTES:
The Supreme Court of the United States has not power to issue a mandamus to a Secretary of State of the United States,
it being an exercise of original jurisdiction not warranted by the constitution.
Congress has not power to give original jurisdiction to the Supreme Court in other cases than those described in the
constitution.
An act of congress repugnant to the constitution cannot become a law.
The courts of the United States are bound to take notice of the constitution.
A commission is not necessary to the appointment of an officer by the executive; semb.
A commission is only evidence of an appointment.
Delivery is not necessary to the validity of letters patent.
The president cannot authorize a Secretary of State to omit the performance of those duties which are enjoined by law.
A justice of peace in the District of Columbia is not removable at the will of the president.
When a commission for an officer not holding his office at the will of the president, is by him signed and transmitted to
the Secretary of State, to be sealed and recorded, it is irrevocable; the appointment is complete.
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A mandamus is the proper remedy to compel a Secretary of State to deliver a commission to which the party is entitled.
SYLLABUS
REPORTER’S NOTES
The supreme court of the United States has not power to issue a mandamus to a secretary of state of the United States, it
being an exercise of original jurisdiction not warranted by the constitution. Congress have not power to give original
jurisdiction to the supreme court in other case than those described in the constitution. An act of congress repugnant to
the constitution can not become a law. The courts of U. States are bound to take notice of the constitution. [***3] A
commission is not necessary to the appointment of an officer by the executive — Semb. A commission is only evidence
of an appointment.
Delivery is not necessary to the validity of letters patent. The President cannot authorize a secretary of state to omit the
performance of those duties which are enjoined by law.
A justice of peace in the district of Columbia is not removable at the will of the President. When a commission for an
officer not holding his office at the will of the President, is by him signed and transmitted to the secretary of state to be
sealed and recorded, it is irrevocable; the appointment is complete. A mandamus is the proper remedy to compel a
secretary of state to deliver a commission to which the party is entitled.
COUNSEL: Mr. Lee, in support of the rule, observed that it was important to know on what ground a justice of peace
in the district of Columbia holds his office, and what proceedings are necessary to constitute an appointment to an office
no held at the will of the president. However notorious the facts are, upon the suggestion of which this rule has been
laid, yet the applicants have been much embarrassed in obtaining evidence of them. [***4] Reasonable information
has been denied at the office of the department of state. Although a respectful memorial has been made to the senate
praying them to suffer their secretary to give extracts from their executive journals respecting the nomination of the
applicants to the senate, and of their advice and consent to the appointments, yet their request has been denied, and their
petition rejected. They have therefore been compelled to summon witnesses to attend in court, whose voluntary
affidavits they could not obtain. Mr. Lee here read the affidavit of Dennis Ramsay, and the printed journals of the
senate of 31 January, 1803, respecting the refusal of the senate to suffer their secretary to give the information
requested. He then called Jacob Wagner and Daniel Brent, who had been summoned to attend the court, and who had,
as it is understood, declined giving a voluntary affidavit. They objected to being sworn, alleging that they were clerks
in the department of state and not bound to disclose any facts relating to the business or transactions in the office.
Mr. Lee observed, that to show the propriety of examining these witnesses, he would make a few remarks on the nature
[***5] of the office of secretary of state. His duties are of two kinds, and he exercises his functions in two distinct
capacities; as a public ministerial officer of the United States, and as agent of the President. In the first his duty is to the
United States or its citizens; in the other his duty is to the President; in the one he is an independent, and an accountable
officer; in the other he is dependent upon the President, is his agent, and accountable to him alone. In the former
capacity he is compellable by mandamus to do his duty; in the latter he is not. This distinction is clearly pointed out by
the two acts of congress upon this subject. The first was passed 27th July, 1789, vol. 1. p. 359, entitled “an act for
establishing an executive department, to be denominated the department of foreign affairs.” The first section ascertains
the duties of the secretary so far as he is considered as a mere executive agent. It is in these words, “Be it enacted, &c.
that there shall be an executive department, to be denominated the department of foreign affairs, and that there shall be a
principal officer therein, to be called the secretary of the department of foreign affairs, who shall [***6] perform and
execute such duties as shall from time to time be enjoined on, or instructed to him by the President of the United States,
agreeable to the constitution, relative to correspondences, commissions or instructions to or with public ministers or
consuls from the United States; or to negotiations with public ministers from foreign states or princes, or to memorials
or other applications from foreign public ministers, or other foreigners, or to such other matters respecting foreign
affairs as the President of the United States shall assign to the said department; and furthermore, that the said principal
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officer shall conduct the business of the said department in such manner as the President of the United States shall from
time to time order or instruct.”
The second section provides for the appointment of a chief clerk; the third section prescribes the oath to be taken which
is simply, “well and faithfully to execute the trust committed to him;” and the fourth and last section gives him the
custody of the books and papers of the department of foreign affairs under the old congress. Respecting the powers
given and the duties imposed by this act, no mandamus will lie. The secretary [***7] is responsible only to the
President. The other acts of congress respecting this department was passed at the same session of the 15th September
1789, vol. 1, p. 41, c. 14, and is entitled “An act to provide for the safe keeping of the acts and records, and seal of the
United States, and for other purposes.” The first section changes the name of the department and the secretary, calling
the one the department and the other the secretary of state. The second section assigns new duties to the secretary, in
the performance of which it is evident, from their nature, he cannot be lawfully controlled by the president, and for the
non-performance of which he is not more responsible to the president than to any other citizen of the United States. It
provides that he shall receive from the president all bills, orders, resolutions and votes of the senate and house of
representatives, which shall have been approved and signed by him; and shall cause them to be published, and printed
copies to be delivered to the senators and representatives and to the executives of the several states; and makes it his
duty carefully to preserve the originals; and to cause them to be recorded in books to be [***8] provided for that
purpose. The third section provides a seal of the United States. The fourth makes it his duty to keep the said seal, and
to make out and record, and to affix the seal of the United States to all civil commissions, after they shall have been
signed by the President. The fifth section provides for a seal of office, and that all copies of records and papers in his
office, authenticated under that seal, shall be as good evidence as the originals. The sixth section establishes fees for
copies, &c. The seventh and last section gives him the custody of the papers of the office of the secretary of the old
congress. Most of the duties assigned by this act are of a public nature, and the secretary is bound to perform them,
without the control of any person. The President has no right to prevent him from receiving the bills, orders, resolutions
and votes of the legislature, or from publishing and distributing them, or from preserving or recording them. While the
secretary remains in office the President cannot take from his custody the seal of the United States, nor prevent him
from recording, and affixing the seal to civil commissions of such officers as hold not their [***9] offices at the will of
the President, after he has signed them and delivered them to the secretary for that purpose. By other laws he is to make
out and record in his office patents for useful discoveries, and patents of lands granted under the authority of the United
States. In the performance of all these duties he is a public ministerial officer of the United States. And the duties
being enjoined upon him by law, he is, in executing them, uncontrollable by the President; and if he neglects or refuses
to perform them, he may be compelled by mandamus, in the same manner as other persons holding offices under the
authority of the United States. The President is no party to this case. The secretary is called upon to perform a duty
over which the President has no control, and in regard to which he has no dispensing power, and for the neglect of
which he is in no manner responsible. The secretary alone is the person to whom they are entrusted, and he alone is
answerable for their due performance. The secretary of state, therefore, being in the same situation, as to these duties,
as every other ministerial officer of the United States, and equally liable to be compelled to perform [***10] them, is
also bound by the same rules of evidence. These duties are not of a confidential nature, but are of a public kind, and his
clerks can have no exclusive privileges. There are undoubtedly facts, which may come to their knowledge by means of
their connection with the secretary of state, respecting which they cannot be bound to answer. Such are the facts
concerning foreign correspondences, and confidential communications between the head of the department and the
President. This, however, can be no objection to their being sworn, but may be a ground of objection to any particular
question. Suppose I claim title to land under a patent from the United States. I demand a copy of it from the secretary
of state. He refuses. Surely he may be compelled by mandamus to give it. But in order to obtain a mandamus, I must
show that the patent is recorded in his office. My case would be hard indeed if I could not call upon the clerks in the
office to give evidence of that fact. Again, suppose a private act of congress had passed for my benefit. It becomes
necessary for me to have the use of that act in a court of law. I apply for a copy. I am refused. Shall I not be permitted,
[***11] on a motion for a mandamus, to call upon the clerks in the office to prove that such an act is among the rolls of
the office, or that it is duly recorded? Surely it cannot be contended that although the laws are to be recorded, yet no
access is to be had to the records, and no benefit to result therefrom.
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The court ordered the witnesses to be sworn and their answers taken in writing, but informed them that when the
questions were asked they might state their objections to answering each particular question, if they had any.
Mr. Wagner being examined under interrogatories, testified, that at this distance of time he could not recollect whether
he had seen any commission in the office, constituting the applicants, or either of them justices of the peace. That Mr
Marbury and Mr. Ramsey called on the secretary of state respecting their commissions. That the secretary referred
them to him; he took them into another room and mentioned to them, that two of the commissions had been signed, but
the other had not. That he did not know that fact of his own knowledge, but by the information of others. Mr. Wagner
declined answering the question “who gave him that information;” and the [***12] court decided that he was not bound
to answer it, because it was not pertinent to this cause. He further testified that some of the commissions of the justices,
but he believed not all, were recorded. He did not know whether the commissions of the applicants were recorded, as
he had not had recourse to the book for more than twelve months past.
Mr. Daniel Brent testified, that he did not remember certainly the names of any of the persons in the commissions of
justices of the peace signed by Mr. Adams; but believed, and was almost certain, that Mr. Marbury’s and Col. Hooe’s
commissions were made out,, and that Mr. Ramsay’s was not; that he made out the list of names by which the clerk who
filled up the commissions was guided; he believed that the name of Mr. Ramsey was pretermitted by mistake, but to the
best of his knowledge it contained the names of the other two; he believed none of the commissions for justices of the
peace signed by Mr. Adams, were recorded. After the commissions of justices of peace were made out, he carried them
to Mr. Adams for his signature. After being signed he carried them back to the secretary’s office, where the seal of the
United States was affixed [***13] to them. That commissions are not usually delivered out of the office before they
are recorded; but sometimes they are, and a note of them only is taken, and they are recorded afterwards. He believed
none of those commissions of justices were ever sent out, or delivered to the persons for whom they were intended; he
did not know what became of them, nor did he know that they are now in the office of the secretary of state.
Mr. Lincoln, attorney general, having been summoned, and now called, objected to answering. He requested that the
questions might be put in writing, and that he might afterwards have time to determine whether he would answer. On
the one hand he respected the jurisdiction of this court, and on the other he felt himself bound to maintain the rights of
the executive. He was acting as secretary of state at the time when this transaction happened. He was of opinion, and
his opinion was supported by that of others whom he highly respected, that he was not bound, and ought not to answer,
as to any facts which came officially to his knowledge while acting as secretary of state.
The questions being written were then read and handed to him. He repeated the ideas [***14] he had before suggested,
and said his objections were of two kinds.
1st. He did not think himself bound to disclose his official transactions while acting as secretary of state; and
2d. He ought not to be compelled to answer any thing which might tend to criminate himself.
Mr. Lee, in reply, repeated the substance of the observations he had before made in answer to the objections of Mr.
Wagner and Mr. Brent. He stated that the duties of a secretary of state were two-fold. In discharging one part of those
duties he acted as a public ministerial officer of the United States, totally independent of the President, and that as to
any facts which came officially to his knowledge, while acting in that capacity, he was as much bound to answer as a
marshal, a collector, or any other ministerial officer. But that in the discharge of the other part of his duties, he did not
act as public ministerial officer, but in the capacity of an agent of the President, bound to obey his orders, and
accountable to him for his conduct. And that as to any facts which came officially to his knowledge in the discharge of
this part of his duties, he was not bound to answer. He agreed that Mr. Lincoln [***15] was not bound to disclose any
thing which might tend to criminate himself.
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Mr. Lincoln thought it was going a great way to say that every secretary of state should at all times be liable to be called
upon to appear as a witness in a court of justice, and testify to facts which came to his knowledge officially. He felt
himself delicately situated between his duty to this court, and the duty he conceived he owed to an executive
department; and hoped the court would give him time to consider of the subject.
The court said, that if Mr. Lincoln wished time to consider what answers he should make, they would give him time; but
they had no doubt he ought to answer. There was nothing confidential required to be disclosed. If there had been he
was not obliged to answer it; and if he thought that any thing was communicated to him in confidence he was not bound
to disclose it; nor was he obliged to state any thing which would criminate himself; but that the fact whether such
commissions had been in the office or not, could not be a confidential fact; it is a fact which all the world have a right to
know. If he thought any of the questions improper, he might state his objections.
[***16] Mr. Lincoln then prayed time till the next day to consider of his answers under this opinion of the court.
The court granted it and postponed further consideration of the cause till the next day.
At the opening of the court on the next morning, Mr. Lincoln said he had no objection to answering the questions
proposed, excepting the last which he did not think himself obliged to answer fully. The question was, what had been
done with the commissions. He had no hesitation in saying that he did not know that they ever came to the possession
of Mr. Madison, nor did he know that they were in the office when Mr. Madison took possession of it. He prayed the
opinion of the court whether he was obliged to disclose what had been done with the commissions.
The court were of opinion that he was not bound to say what had become of them; if they never came to the possession
of Mr. Madison, it was immaterial to the present cause, what had been done with them by others.
To the other questions he answered that he had seen commissions of justices of the peace of the district of Columbia,
signed by Mr. Adams, and sealed with the seal of the United States. He did not recollect whether [***17] any of them
constituted Mr. Marbury, Col. Hooe, or Col. Ramsay, justices of the peace; there were when he went into the office
several commissions for justices of peace of the district made out; but he was furnished with a list of names to be put
into a general commission, which was done, and was considered as superseding the particular commissions; and the
individuals whose names were contained in this general commission were informed of their being thus appointed. He
did not know that any one of the commissions was ever sent to the person for whom it was made out, and did not
believe that any one had been sent.
Mr. Lee then read the affidavit of James Marshall, who had been also summoned as a witness. It stated that on the 4th
of March 1801, having been informed by some person from Alexandria that there was reason to apprehend riotous
proceedings in that town on that night, he was induced to return immediately home, and to call at the office of the
secretary of state, for the commissions of the justices of the peace; that as many as 2, as he believed, commissions of
justices for that county were delivered to him for which he gave a receipt, which he left in the office. That [***18]
finding he could not conveniently carry the whole, he returned several of them, and struck a pen through the names of
those, in the receipt, which he returned. Among the commissions so returned, according to the best of his knowledge
and belief, was one for colonel Hooe, and one for William Harper.
Mr. Lee then observed, that having proved the existence of the commissions, he should confine such further remarks as
he had to make in support of the rule to three questions:
1st.Whether the supreme court can award the writ of mandamus in any case.
2d. Whether it will lie to a secretary of state in any case whatever.
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3d. Whether in the present case the court may award a mandamus to James Madison, secretary of state.
The argument upon the 1st question is derived not only from the principles and practice of that country, from whence
we derive many of the principles of our political institutions, but from the constitution and laws of the United States.
This is the supreme court, and by reason of its supremacy must have the superintendence of the inferior tribunals and
officers, whether judicial or ministerial. In this respect there is no difference between a judicial and [***19] ministerial
officer. From this principle alone the court of King’s Bench in England derives the power of issuing the writs of
mandamus and prohibition. 3 Inst. 70, 71. Shall it be said that the court of King’s Bench has this power in consequence
to its being the supreme court of judicature, and shall we deny it to this court which the constitution makes the supreme
court? It is beneficial, and a necessary power; and it can never be applied where there is another adequate, specific,
legal remedy.
The second section of the third article of the constitution gives this court appellate jurisdiction in all cases in law and
equity arising under the constitution and laws of the United States (except the cases in which it has original jurisdiction)
with such exceptions, and under such regulations as congress shall make. The term “appellate jurisdiction” is to be
taken in its largest sense, and implies in its nature the right of superintending the inferior tribunals.
Proceedings in nature of appeals are of various kinds, according to the subject matter. 3 Bl. Com. 402. It is a settled
and invariable principle, that every right, when withheld, must have a remedy, and every injury [***20] its proper
redress. 3 Bl. Com. 109. There are some injuries which can only be redressed by a writ of mandamus, and others by a
writ of prohibition. There must then be a jurisdiction some where competent to issue that kind of process. Where are
we to look for it but in that court which the constitution and laws have made supreme, and to which they have given
appellate jurisdiction? Blakstone, vol. 3, p. 110. says that a writ of mandamus is “a command issuing in the King’s
name from the court of King’s Bench, and directed to any person, corporation or inferior court, requiring them to do
some particular thing therein specified, which appertains to their office and duty, and which the court has previously
determined, or at least supposes, to be consonant to right and justice. It is a writ of most extensively remedial nature,
and issues in all cases where the party has a right to have any thing done, and has no other specific means of compelling
its performance.”
In the Federalist, vol. 2, p. 239, it is said, that the word “appellate” is not to be taken in its technical sense, as used in
reference to appeals in the course of the civil law, but in its broadest sense, in which it [***21] denotes nothing more
than the power of one tribunal to review the proceedings of another, either as to law or facts, or both. The writ of
mandamus is in the nature of an appeal as to facts as well as law. It is competent for congress to prescribe the forms of
process by which the supreme court shall exercise its appellate jurisdiction, and they may well declare a mandamus to
be one. But the power does not depend upon implication alone. It has been recognized by legislative provision as well
as in judicial decisions in this court.
Congress, by a law passed at the very first session after the adoption of the constitution, vol. 1. p. 58, § 13, have
expressly given the supreme court the power of issuing writs of mandamus. The words are, “The supreme court shall
also have appellate jurisdiction from the circuit courts, and the courts of the several states, in the cases herein after
specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as
courts of admiralty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages
of law, to any courts appointed, or persons holding office, under [***22] the authority of the United States.”
Congress is not restrained from conferring original jurisdiction in other cases than those mentioned in the constitution.
2 Dal. Rep. 298.
This court has entertained jurisdiction on a mandamus in one case, and on a prohibition in another. In the case of the
United States v. judge Lawrence, 3 Dal. Rep. 42, a mandamus was moved for by the attorney general at the instance of
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the French minister, to compel judge Lawrence to issue a warrant against captain Barre, commander of the French ship
of war Le Perdrix, grounded on an article of the consular convention with France. In this case the power of the court to
issue writs of mandamus, was taken for granted in the arguments of counsel on both sides, and seems to have been so
considered by the court. The mandamus was refused, because the case in which it was required, was not a proper one to
support the motion. In the case of the United States v. judge Peters a writ of prohibition was granted, 3 Dal. Rep. 121,
129.This was the celebrated case of the French corvette the Cassius, which afterwards became a subject of diplomatic
controversy between the two nations. On the 5th Feb. 1794, a motion [***23] was made to the supreme court in behalf
of one John Chandler, a citizen of Connecticut, for a mandamus to the secretary of war, commanding him to place
Chandler on the invalid pension list. After argument, the court refused the mandamus, because the two acts of congress
respecting invalids, did not support the case on which the applicant grounded his motion. The case of the United States
v. Hopkins, at February term, 1794, was a motion for a mandamus to Hopkins, loan officer for the district of Virginia,
to command him to admit a person to subscribe to the United States loan. Upon argument the mandamus was refused
because the applicant had not sufficiently established his title. In none of these cases, nor in any other, was the power
of this court to issue a mandamus ever denied. Hence it appears there has been a legislative construction of the
constitution upon this point, and a judicial practice under it, for the whole time since the formation of that government.
2d. The second point is, can a mandamus go to a secretary of state in any case? It certainly cannot in all cases; nor to
the President in any case. It may not be proper to mention this position; but I am compelled [***24] to do it. An idea
has gone forth, that a mandamus to a secretary of state is equivalent to a mandamus to the President of the United
States. I declare it to be my opinion, grounded on a comprehensive view of the subject, that the President is not
amenable to any court of judicature for the exercise of his high functions, but is responsible only in the mode pointed
out in the constitution. The secretary of state acts, as before observed, in two capacities. As the agent of the President,
he is not liable to a mandamus; but as a recorder of the laws of the United States; as keeper of the great seal, as recorder
of deeds of land, of letters patent, and of commissions, &c. he is a ministerial officer of the people of the United States.
As such he has duties assigned him by law, in the execution of which he is independent of all control, but that of the
laws. It is true he is a high officer, but is not above law. It is not consistent with the policy of our political institutions,
or the manners of the citizens of the United States, that any ministerial officer having public duties to perform, should
be above the compulsion of law in the exercise of those duties. As a ministerial [***25] officer he is compellable to do
his duty, and if he refuses, is liable to indictment. A prosecution of this kind might be the means of punishing the
officer, but a specific civil remedy to the injured party can only be obtained by a writ of mandamus. If a mandamus can
be awarded by this court in any case, it may issue to a secretary of state; for the act of congress expressly gives the
power to award it, “in cases warranted by the principles and usages of law, to any persons holding offices under the
authority of the United States.”
Many cases may be supported, in which a secretary of state ought to be compelled to perform his duty specifically. By
the 5th and 6th sections of the act of congress, vol. 1. p. 43, copies under seal of the office of the department of state are
made evidence in courts of law, and fees are given for making them out. The intention of the law must have been, that
every person needing a copy should be entitled to it. Suppose the secretary refuses to give a copy, ought he not to be
compelled? Suppose I am entitled to a patent for lands purchased of the United States; it is made out and signed by the
President who gives a warrant to the secretary to affix [***26] the great seal to the patent; he refuses to do it; shall I not
have a mandamus to compel him? Suppose the seal is affixed, but the secretary refuses to record it; shall he not be
compelled? Suppose it recorded, and he refuses to deliver it; shall I have no remedy?
In this respect there is no difference between the patent for lands, and the commission of a judicial officer. The duty of
the secretary is precisely the same.
Judge Patterson enquired of Mr. Lee whether he understood it to be the duty of the secretary to deliver a commission,
unless ordered so to do by the President.
Mr. Lee replied, that after the President has signed a commission for an office not held at his will, and it comes to the
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secretary to be sealed, the President has done with it, and nothing remains, but that the secretary perform those
ministerial acts which the law imposes upon him. It immediately becomes his duty to seal, record, and deliver it on
demand. In such a case the appointment becomes complete by the signing and sealing; and the secretary does wrong if
he withholds the commission.
3d. The third point is, whether in the present case a writ of mandamus ought to be awarded to James [***27] Madison,
secretary of state.
The justices of the peace in the district of Columbia are judicial officers, and hold their office for five years. The office
is established by the act of Congress passed the 27th of Feb. 1803, entitled “An act concerning the district of Columbia,”
ch. 86, § 11 and 4; page 271, 273. They are authorized to hold courts and have cognizance of personal demands of the
value of 20 dollars. The act of May 3d, 1802, ch. 52, § 4, considers them as judicial officers, and provides the mode in
which execution shall issue upon their judgments. They hold their offices independent of the will of the President. The
appointment of such an officer is complete when the President has nominated him to the senate, and the senate have
advised and consented, and the President has signed the commission and delivered it to the secretary to be sealed. The
President has then done with it; it become irrevocable. An appointment of a judge once completed, is made forever. He
holds under the constitution. The requisites to be performed by the secretary are ministerial, ascertained by law, and he
has no discretion, but must perform them; there is no dispensing power. In [***28] contemplation of law they are as if
done.
These justices exercise part of the judicial power of the United States. They ought therefore to be independent. Mr. Lee
begged leave again to refer to the Federalist, vol. 2, Nos. 78 and 79, as containing a correct view of this subject. They
contained observations and ideas which he wished might be generally read and understood. They contained the
principles upon which this branch of our constitution was constructed. It is important to the citizens of this district that
the justices should be independent; almost all the authority immediately exercised over them is that of the justices.
They wish to know whether the justices of this district are to hold their commissions at the will of a secretary of state.
This cause may seem trivial at first view, but it is important in principle. It is for this reason that this court is now
troubled with it. The emoluments or the dignity of the office, are no objects with the applicants. They conceive
themselves to be duly appointed justices of the peace, and they believe it to be their duty to maintain the rights of their
office, and not to suffer them to be violated by the hand of power. The [***29] citizens of this district have their fears
excited by every stretch of power by a person so high in office as the secretary of state.
It only remains now to consider whether a mandamus to compel the delivery of a commission by a public ministerial
officer, is one of “the cases warranted by the principles and usages of law.”
It is the general principle of law that a mandamus lies, if there be no other adequate, specific, legal remedy; 3 Burrow,
1067, King v. Barker, et al. This seems to be the result of a view of all the cases on the subject.
The case of Rex v. Borough of Midhurst, 1 Wils. 283, was a mandamus to compel the presentment of certain
conveyances to purchasers of burgage tenements, whereby they would be entitled to vote for members of parliament. In
the case of Rex v. Dr. Hay, 1 W. Bl. Rep. 640, a mandamus issued to admit one to administer an estate.
A mandamus gives no right, but only puts the party in a way to try his right. Sid. 286.
It lies to compel a ministerial act which concerns the public. 1 Wilson, 283. 1 Bl. Rep. 640 — although there be a more
tedious remedy, Str. 1082. 4 Bur. 2188. 2 Bur. 1045; So if there be a legal right, and a remedy in equity, [***30] 3.
Term. Rep. 652. A mandamus lies to obtain admission into a trading company. Rex v. Turkey Company, 2 Bur. 1000.
Carthew 448. 5 Mod. 402; So it lies to put the corporate seal to an instrument. 4 Term. Rep. 699; to commissioners of
the excise to grant a permit, 2 Term Rep. 381; to admit to an office, 3 Term. Rep. 575; to deliver papers which concern
the public, 2 Sid. 31. A mandamus will sometimes lie in a doubtful case, 1 Levinz 123, to be further considered on the
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return, 2 Levinz, 14. 1 Siderfin, 169.
It lies to be admitted a member of a church, 3 Bur. 1265, 1043.
The process is as ancient as the time of Ed. 2d. 1 Levinz 23.
The first writ of mandamus is not peremptory, it only commands the officer to do the thing or show cause why he
should not do it. If the cause returned be sufficient, there is an end of the proceeding, if not, a peremptory mandamus is
then awarded.
It is said to be a writ of discretion. But the discretion of a court always means a sound, legal discretion, not an arbitrary
will. If the applicant makes out a proper case, the court are bound to grant it. They can refuse justice to no man.
On a subsequent day, and before the court had given [***31] an opinion, Mr. Lee read the affidavit of Hazen Kimball,
who had been a clerk in the office of the Secretary of State, and has been to a distant part of the United States, but
whose return was not known to the applicant till after the argument of the case.
It stated that on the third of March, 1801, he was a clerk in the department of state. That there were in the office, on that
day, commissions made out and signed by the president, appointing William Marbury a justice of peace for the county
of Washington; and Robert T. Hooe a justice of the peace for the county of Alexandria, in the district of Columbia.
OPINION BY: MARSHALL
OPINION
[*153] [**66] Afterwards, on the 24th of February the following opinion of the court was delivered by the chief
justice.
Opinion of the court.
At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the
secretary of state to show cause why a mandamus [*154] should not issue, directing him to deliver to William
Marbury his commission as a justice of the peace of the county of Washington, in the district of Columbia.
No cause has been shown, and the present motion is for a mandamus. [***32] The peculiar delicacy of this case, the
novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete
exposition of the principles, on which the opinion to be given by the court, is founded.
These principles have been, on the side of the applicant, very ably argued at the bar. In rendering the opinion of the
court, there will be some departure in form, though not in substance, from the points stated in that argument.
In the order in which the court has viewed this subject, the following questions have been considered and decided.
1st. Has the applicant a right to the commission he demands?
2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
3dly. If they do afford him a remedy, is it a mandamus issuing from this court?
The first object of enquiry is,
1st. Has the applicant a right to the commission he demands?
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His right originates in an act of congress passed in February, 1801, concerning the district of Columbia.
After dividing the district into two counties, the 11th section of this law, enacts, “that there shall be appointed in and for
[***33] each of the said counties, such number of discreet persons to be justices of the peace as the president of the
United States shall, from time to time, think expedient, to continue in office for five years.
[*155] It appears, from the affidavits, that in compliance with this law, a commission for William Marbury as a
justice of peace for the county of Washington, was signed by John Adams, then president of the United States; after
which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was
made out.
In order to determine whether he is entitled to this commission, it becomes necessary to enquire whether he has been
appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to
the possession of those evidences of office, which, being completed, became his property.
[HN1] The 2d section of the 2d article of the constitution, declares, that “the president shall nominate, and, by and with
the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, and all other
officers of the United States, whose appointments are not [***34] otherwise provided for.”
The third section declares, that “he shall commission all the officers of the United States.”
[HN2] An act of congress directs the secretary of state to keep the seal of the United States, “to make out and record,
and affix the said seal to all civil commissions to officers of the United States, to be appointed by the President, by and
with the consent of the senate, or by the President alone; provided that the said seal shall not be affixed to any
commission before the same shall have been signed by the President of the United States.”
These are the clauses of the constitution and laws of the United States, which affect this part of the case. They seem to
contemplate three distinct operations:
1st, The nomination. This is the sole act of the President, and is completely voluntary.
2d. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed
by and with the advice and consent of the senate.
[*156] 3d. The commission. To grant a commission to a person appointed, might perhaps be deemed a duty enjoined
by the constitution. “He shall,” says that instrument, “commission all the officers [***35] of the United States.”
The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the
same; since the power to perform them is given in two separate and distinct sections of the constitution. The distinction
between the appointment and the commission will be rendered more apparent, by [**67] adverting to that provision in
[HN3] the second section of the second article of the constitution, which authorizes congress “to vest, by law, the
appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of
departments;” thus contemplating cases where the law may direct the President to commission an officer appointed by
the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct
from the appointment, the performance of which, perhaps, could not legally be refused.
Although that clause of the constitution which requires the President to commission all the officers of the United States,
may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the
legislative power [***36] to apply it to such cases. Of consequence the constitutional distinction between the
appointment to an office and the commission of an officer, who has been appointed, remains the same as if in practice
the President had commissioned officers appointed by an authority other than his will.
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It follows too, from the existence of this distinction, that, if an appointment was to be evidenced by any public act, other
than the commission, the performance of such public act would create the officer; and if he was not removable at the
will of the President, would either give him a right to his commission, or enable him to perform the duties without it.
These observations are premised solely for the purpose of rendering more intelligible those which apply more directly
to the particular case under consideration.
[*157] This is an appointment by the President, by and with the advice and consent of the senate, and is evidenced by
no act but the commission itself. In such a case therefore the commission and the appointment seem inseparable; it
being almost impossible to show an appointment otherwise than by proving the existence of a commission; still the
commission is not necessarily [***37] the appointment; though conclusive evidence of it.
But at what state does it amount to this conclusive evidence?
The answer to this question seems an obvious one. The appointment being the sole act of the President, must be
completely evidenced, when it is shown that he has done every thing to be performed by him.
Should the commission, instead of being evidence of an appointment, even be considered as constituting the
appointment itself; still it would be made when the last act to be done by the President was performed, or, at furthest,
when the commission was complete.
The last act to be done by the President, is the signature of the commission. He has then acted on the advice and
consent of the senate to his own nomination. The time for deliberations has then passed. He has decided. His
judgment, on the advice and consent of the senate concurring with his nomination, has been made, and the officer is
appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person
making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete
transaction.
Some point of [***38] time must be taken when the power of the executive over an officer, not removable at his will,
must cease. That point of time must be when the constitutional power of appointment has been exercised. And this
power has been exercised when the last act, required from the person possessing the power, has been performed. This
last act is the signature of the commission. This idea seems to have prevailed with the legislature, when the act passed,
converting the department [*158] of foreign affairs into the department of state. By that act it is enacted, that the
secretary of state shall keep the seal of the United States, “and shall make out and record, and shall affix the said seal to
all civil commissions to officers of the United States, to be appointed by the President:” “Provided that the said seal
shall not be affixed to any commission, before the same shall have been signed by the President of the United States;
nor to any other instrument or act, without the special warrant of the President therefor.”
The signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an
instrument which is complete. It asserts, by an [***39] act supposed to be of public notoriety, the verity of the
Presidential signature.
It is never to be affixed till the commission is signed, because the signature, which gives force and effect to the
commission, is conclusive evidence that the appointment is made.
The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by
the will of the President. He is to affix the seal of the United States to the commission, and is to record it.
This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible; but is a
precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the secretary of state to
conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this regard, as
has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a
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ministerial act which the law enjoins on a particular officer for a particular purpose.
If it should be supposed, that the solemnity of affixing the seal, is necessary not only to the validity of the [***40]
commission, but even to the completion of an appointment, still when the seal is affixed the appointment is made, and
[*159] the commission is valid. No other solemnity is required by law; no other act is to be performed on the part of
government. All that the executive can do to invest the person with his office, is done; and unless the appointment be
then made, the executive cannot make one without the co-operation of others.
After searching anxiously for the principles on which a contrary opinion may be supported, none have been found
which appear of sufficient force to maintain the opposite doctrine.
Such as the imagination of the court could suggest, have been very deliberately examined, and after allowing them all
the weight which it appears possible to give them, they do not shake the opinion which has been formed.
In considering this question, it has been conjectured [**68] that the commission may have been assimilated to a deed,
to the validity of which, delivery is essential.
This idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the
actual appointment; a supposition by no means unquestionable. [***41] But for the purpose of examining this
objection fairly, let it be conceded, that the principle, claimed for its support, is established.
The appointment being, under the constitution, to be made by the President personally, the delivery of the deed of
appointment, if necessary to its completion, must be made by the President also. It is not necessary that the livery
should be made personally to the grantee of the office: It never is so made. The law would seem to contemplate that it
should be made to the secretary of state, since it directs the secretary to affix the seal to the commission after it shall
have been signed by the President. If then the act of livery be necessary to give validity to the commission, it has been
delivered when executed and given to the secretary for the purpose of being sealed, recorded, and transmitted to the
party.
But in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidences [*160] of
the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the sign
manual of the President, and the seal of the United States, are those solemnities. This [***42] objection therefore does
not touch the case.
It has also occurred as possible, and barely possible, that the transmission of the commission, and the acceptance
thereof, might be deemed necessary to complete the right of the plaintiff.
The transmission of the commission, is a practice directed by convenience, but not by law. It cannot therefore be
necessary to constitute the appointment which must precede it, and which is the mere act of the President. If the
executive required that every person appointed to an office, should himself take means to procure his commission, the
appointment would not be the less valid on that account. The appointment is the sole act of the President; the
transmission of the commission is the sole act of the officer to whom that duty is assigned, and may be accelerated or
retarded by circumstances which can have no influence on the appointment. A commission is transmitted to a person
already appointed; not to a person to be appointed or not, as the letter enclosing the commission should happen to get
into the post-office and reach him in safety, or to miscarry.
It may have some tendency to elucidate this point, to enquire, whether the possession [***43] of the original
commission be indispensably necessary to authorize a person, appointed to any office, to perform the duties of that
office. If it was necessary, then a loss of the commission would lose the office. Not only negligence, but accident or
fraud, fire or theft, might deprive an individual of his office. In such a case, I presume it could not be doubted, but that
a copy from the record of the office of the secretary of state, would be, to every intent and purpose, equal to the original.
The act of congress has expressly made it so. To give that copy validity, it would not be necessary to prove that the
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original had been transmitted and afterwards lost. The copy would be complete evidence that the original had existed,
and that the appointment had been made, but, not that the original had been transmitted. If indeed it should appear that
[*161] the original had been mislaid in the office of state, that circumstance would not affect the operation of the copy.
When all the requisites have been performed which authorize a recording officer to record any instrument whatever, and
the order for that purpose has been given, the instrument is, in law, considered as recorded, [***44] although the
manual labor of inserting it in a book kept for that purpose may not have been performed.
[HN4] In the case of commissions, the law orders the secretary of state to record them. When therefore they are signed
and sealed, the order for their being recorded is given; and whether inserted in the book or not, they are in law recorded.
A copy of this record is declared equal to the original, and the fees, to be paid by a person requiring a copy, are
ascertained by law. Can a keeper of a public record, erase therefrom a commission which has been recorded? Or can he
refuse a copy thereof to a person demanding it on the terms prescribed by law?
Such a copy would, equally with the original, authorize the justice of peace to proceed in the performance of his duty,
because it would, equally with the original, attest his appointment.
If the transmission of a commission be not considered as necessary to give validity to an appointment; still less is its
acceptance. The appointment is the sole act of the President; the acceptance is the sole act of the officer, and is, in plain
common sense, posterior to the appointment. As he may resign, so may he refuse to accept: but neither [***45] the one,
nor the other, is capable of rendering the appointment a non-entity.
That this is the understanding of the government, is apparent from the whole tenor of its conduct.
A commission bears date, and the salary of the officer commences from his appointment; not from the transmission or
acceptance of his commission. When a person, appointed to any office, refuses to accept the office, the successor is
nominated in the place of the person who [*162] has declined to accept, and not in the place of the person who had
been previously in office, and had created the original vacancy.
It is therefore decidedly the opinion of the court, that [HN5] 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.
[HN6] Where an officer is removable at the will of the executive, the circumstance which completes his appointment is
of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But
when the officer is not removable at the will of the executive, the appointment is not revocable, and [***46] cannot be
annulled. It has conferred legal rights which cannot be resumed.
[HN7] The discretion of the executive is to be exercised until the appointment has been made. [**69] But having
once made the appointment, his power over the office is terminated in all cases, where, by law, the officer is not
removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional, power
of accepting or rejecting it.
Mr. Marbury, then, since his commission was signed by the President, and sealed by the secretary of state, was
appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive,
the appointment was not revocable; but vested in the officer legal rights, which are protected by the laws of his country.
To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested
legal right.
This brings us to the second enquiry; which is,
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2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
[*163] [HN8] The very essence of civil liberty certainly consists in the right of every [***47] individual to claim the
protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.
In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the
judgment of his court.
In the 3d vol. of his commentaries, p. 23, Blackstone states two cases in which a remedy is afforded by mere operation
of law.
“In all other cases,” he says, “it is a general and indisputable rule, that [HN9] where there is a legal right, there is also a
legal remedy by suit or action at law, whenever that right is invaded.”
And afterwards, p. 109, of the same vol. he says, “I am next to consider such injuries as are cognizable by the courts of
the common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall
within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are for that very reason,
within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of
England, that every right, when withheld, must have a remedy, and every injury its proper redress.”
[***48] The government of the United States has been emphatically termed a government of laws, and not of men. It
will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal
right.
If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case.
It behooves us then to enquire whether there be in its composition any ingredient which shall exempt it from legal
investigation, or exclude the injured party from legal redress. In pursuing this enquiry the first question which presents
itself is, whether this can be arranged [*164] with that class of cases which comes under the description of damnum
absque injuria — a loss without an injury.
This description of cases never has been considered, and it is believed never can be considered, as comprehending
offices of trust, of honor or of profit. The office of justice of peace in the district of Columbia is such an office; it is
therefore worthy of the attention and guardianship of the laws. It has received that attention and guardianship. It has
been created by special act of congress, and has been secured, so far [***49] as the laws can give security to the person
appointed to fill it, for five years. It is not then on account of the worthlessness of the thing pursued, that the injured
party can be alleged to be without remedy.
Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be considered as a mere
political act, belonging to the executive department alone, for the performance of which, entire confidence is placed by
our constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no
remedy.
That there may be such cases is not to be questioned; but that every act of duty, to be performed in any of the great
departments of government, constitutes such a case is not to be admitted.
By the act concerning invalids, passed in June, 1794, vol. 3. p. 112, the secretary of war is ordered to place on the
pension list, all persons whose names are contained in a report previously made by him to congress. If he should refuse
to do so, would the wounded veteran be without remedy? Is it to be contended that where the law in precise terms,
directs the performance of an act, in which an individual is interested, [***50] the law is incapable of securing
obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to
be contended that the heads of departments are not amenable to the laws of their country?
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Whatever the practice on particular occasions may be, the theory of this principle will certainly never be maintained.
[*165] No act of the legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of
the common law. After stating that personal injury from the king to a subject is presumed to be impossible, Blackstone,
vol. 3. p. 255, says, “but injuries to the rights of property can scarcely be committed by the crown without the
intervention of its officers; for whom, the law, in matters of right, entertains no respect or delicacy; but furnishes
various methods of detecting the errors and misconduct of those agents, by whom the king has been deceived and
induced to do a temporary injustice.”
By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky river (vol. 3d. p. 299) the
purchaser, on paying his purchase money, becomes completely entitled to the property [***51] purchased; and on
producing to the secretary of state, the receipt of the treasurer upon a certificate required by the law, the president of the
United States is authorized to grant him a patent. It is further enacted that all patents shall be countersigned by the
secretary of state, and recorded in his office. If the secretary of state should choose to withhold this patent; or the patent
being lost, should refuse a copy of it; can it be imagined that the law furnishes to the injured person no remedy?
It is not believed that any person whatever would attempt to maintain such a proposition.
[**70] It follows then that [HN10] 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.
[HN11] By the constitution of the United States, the President is invested with certain important political [***52]
powers, in the [*166] exercise of which he is to use his own discretion, and is accountable only to his country in his
political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to
appoint certain officers, who act by his authority and in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive
discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political.
They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is
conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the
department of foreign affairs. This office, as his duties were prescribed by that act, is to conform precisely to the will of
the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can
never be examinable by the courts.
But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to [***53]
perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the
officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of
others.
The conclusion from this reasoning is, that [HN12] where the heads of departments are the political or confidential
agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive
possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically
examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that
duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his
country for a remedy.
If this be the rule, let us enquire how it applies to the case under the consideration of the court.
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[*167] The power of nominating to the senate, and the power of appointing the person nominated, are political powers,
to be exercised by the President according to his own discretion. When he has made an appointment, he has [***54]
exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be
removable at the will of the President, then a new appointment may be immediately made, and the rights of the officer
are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be
annihilated; and consequently if the officer is by law not removable at the will of the President; the rights he has
acquired are protected by the law, and are not resumeable by the President. They cannot be extinguished by executive
authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source.
[HN13] The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial
authority. If, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one; in
consequence of which a suit had been instituted against him, in which his defence had depended on his being a
magistrate; the validity of his appointment must have been determined by judicial authority.
So, if he conceives that, by virtue of his appointment, he has a legal [***55] right, either to the commission which has
been made out for him, or to a copy of that commission, it is equally a question examinable in a court, and the decision
of the court upon it must depend on the opinion entertained of his appointment.
That question has been discussed, and the opinion is, that the latest point of time which can be taken as that at which the
appointment was complete, and evidenced, was when, after the signature of the president, the seal of the United States
was affixed to the commission.
It is then the opinion of the court,
1st. That by signing the commission of Mr. Marbury, the president of the United States appointed him a justice
[*168] of peace, for the county of Washington in the district of Columbia; and that the seal of the United States, affixed
thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the
appointment; and that the appointment conferred on him a legal right to the office for the space of five years.
2dly. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which,
is a plain violation of that right, for [***56] which the laws of his country afford him a remedy.
It remains to be enquired whether,
3dly. He is entitled to the remedy for which he applies. This depends on,
1st. The nature of the writ applied for, and,
2dly. The power of this court.
1st. The nature of the writ.
Blackstone, in the 3d volume of his commentaries, page 110, defines a mandamus to be, “a command issued in the
King’s name from the court of King’s Bench, and directed to any person, corporation, or inferior court of judicature
within the King’s dominions, requiring them to do some particular thing therein specified, which appertains to their
office and duty, and which the court of King’s Bench has previously determined, or at least supposed, to be consonant to
right and justice.”
Lord Mansfield, in 3d Burrows 1266, in the case of the King v. Baker, et al. states with much precision and explicitness
the cases in which this writ may be used.
[HN14] “Whenever,” says that very able judge, “there [**71] is a right to execute an office, perform a service, or
exercise a franchise (more specifically if it be in a matter of public concern, or attended with profit) and a person is kept
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out of the possession, [***57] or dispossessed of such right, and [*169] has no other specific legal remedy, this court
ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to
preserve peace, order and good government.” In the same case he says, “this writ ought to be used upon all occasions
where the law has established no specific remedy, and where in justice and good government there ought to be one.”
In addition to the authorities now particularly cited, many others were relied on at the bar, which show how far the
practice has conformed to the general doctrines that have been just quoted.
This writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words
of Blackstone, “to do a particular thing therein specified, which appertains to his office and duty and which the court has
previously determined, or at least supposes, to be consonant to right and justice.” Or, in the words of Lord Mansfield,
the applicant, in this case, has a right to execute an office of public concern, and is kept out of possession of that right.
These circumstances certainly concur in this case.
Still, [HN15] to render [***58] the mandamus a proper remedy, the officer to whom it is directed, must be one to
whom, on legal principles, such writ may be directed; and the person applying for it must be without any other specific
and legal remedy.
1st. With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the
president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of
one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the
propriety of entering into such investigation. Impressions are often received without much reflection or examination,
and it is not wonderful that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice;
to which claims it is the duty of that court to attend; should at first view be considered [*170] by some, as an attempt
to intrude into the cabinet, and to intermeddle with the prerogatives of the executive.
It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and
excessive, could not have been entertained [***59] for a moment. [HN16] The province of the court is, solely, to
decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they
have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the
executive, can never be made in this court.
But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it respects a paper,
which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents; if it
be no intermeddling with a subject, over which the executive can be considered as having exercised any control; what is
there in the exalted station of the officer, which shall bar a citizen from asserting, in a court of justice, his legal rights, or
shall forbid a court to listen to the claim; or to issue a mandamus, directing the performance of a duty, not depending on
executive discretion, but on particular acts of congress and the general principles of law?
If one of the heads of departments commits any illegal act, under the color of his office, by which an individual sustains
an injury, it cannot [***60] be pretended that his office alone exempts him from being sued in the ordinary mode of
proceeding, and being compelled to obey the judgment of the law. How then can his office exempt him from this
particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual
the party complained of, authorize the process?
It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety
or impropriety of issuing a mandamus, is to be determined. Where the head of a department acts in a case, in which
executive discretion is to be exercised; in which he is the mere organ of executive will; it is [*171] again repeated, that
any application to a court to control, in any respect, his conduct, would be rejected without hesitation.
But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of
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which he is not placed under the particular direction of the President, and the performance of which, the President
cannot lawfully forbid, and therefore is never presumed to have forbidden; as for example, to record a commission,
[***61] or a patent for land, which has received all the legal solemnities; or to give a copy of such record; in such
cases, it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment,
that right be done to an injured individual, than if the same services were to be performed by a person not the head of a
department.
This opinion seems not now, for the first time, to be taken upon in this country.
It must be well recollected that in 1792, an act passed, directing the secretary at war to place on the pension list such
disabled officers and soldiers as should be reported to him, by the circuit courts, which act, so far as the duty was
imposed on the courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by
them in the character of commissioners, proceeded to act and to report in that character.
This law being deemed unconstitutional at the circuits, was repealed, and a different system was established; but this
question whether those persons, who had been reported by the judges, as commissioners, were entitled, in consequence
of that report, to be placed on the pension list, was a legal [***62] question, properly determinable in the courts,
although the act of placing such persons on the list was to be preformed by the head of a department.
That this question might be properly settled, congress passed an act in February, 1793, making [**72] it the duty of the
secretary of war, in conjunction with the attorney general, to take such measures, as might be necessary to obtain an
adjudication of the supreme court of the United [*172] States on the validity of any such rights, claimed under the act
aforesaid.
After the passage of this act, a mandamus was moved for, to be directed to the secretary at war, commanding him to
place on the pension list, a person stating himself to be on the report of the judges.
There is, therefore, much reason to believe, that this mode of trying the legal right of the complainant, was deemed by
the head of a department, and by the highest law officer of the United States, the most proper which could be selected
for the purpose.
When the subject was brought before the court the decision was, not that a mandamus would not lie to the head of a
department, directing him to perform an act, enjoined by law, in the performance of which [***63] an individual had a
vested interest; but that a mandamus ought not to issue in that case — the decision necessarily to be made if the report of
the commissioners did not confer on the applicant a legal right.
The judgment in that case, is understood to have decided the merits of all claims of that description; and the persons on
the report of the commissioners found it necessary to pursue the mode prescribed by the law subsequent to that which
had been deemed unconstitutional, in order to place themselves on the pension list.
The doctrine, therefore, now advanced, is by no means a novel one.
It is true that the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute.
It is to deliver a commission; on which subject the acts of Congress are silent. This difference is not considered as
affecting the case. It has already been stated that the applicant has, to that commission, a vested legal right, of which
the executive cannot deprive him. He has been appointed to an office, from which he is not removable at the will of the
executive; and being so [*173] appointed, he has a right to the commission which the secretary has received [***64]
from the president for his use. The act of congress does not indeed order the secretary of state to send it to him, but it is
placed in his hands for the person entitled to it; and cannot be more lawfully withheld by him, than by any other person.
It was at first doubted whether the action of detinue was not a specified legal remedy for the commission which has
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been withheld from Mr. Marbury; in which case a mandamus would be improper. But this doubt has yielded to the
consideration that the judgment in detinue is for the thing itself, or its value. The value of a public office not to be sold,
is incapable of being ascertained; and the applicant has a right to the office itself, or to nothing. He will obtain the
office by obtaining the commission, or a copy of it from the record.
This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only
remains to be enquired,
Whether it can issue from this court.
The act to establish the judicial courts of the United States authorizes the supreme court “to issue writs of mandamus, in
cases warranted by the principles and usages of law, to any courts appointed, or persons [***65] holding office, under
the authority of the United States.”
The secretary of state, being a person holding an office under the authority of the United States, is precisely within the
letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be
because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the
duties which its words purport to confer and assign.
[HN17] The constitution vests the whole judicial power of the United States in one supreme court, and such inferior
courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising
under the laws of the United States; and consequently, in some form, may be exercised over the present [*174] case;
because the right claimed is given by a law of the United States.
In the distribution of this power it is declared that “the supreme court shall have original jurisdiction in all cases
affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases,
the supreme court shall have appellate jurisdiction.”
[***66] It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is
general, and the clause, assigning original jurisdiction to the supreme court, contains no negative or restrictive words;
the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the
article which has been recited; provided those cases belong to the judicial power of the United States.
If it had been intended to leave it to the discretion of the legislature to apportion the judicial power between the supreme
and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further
than to have defined the judicial powers, and the tribunals in which it should be vested. The subsequent part of the
section is mere surplusage, is entirely without meaning, if such is to be the construction. [HN18] If congress remains at
liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original;
and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made
[***67] in the constitution, is form without substance.
Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative
or exclusive sense must be given to them or they have no operation at all.
It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a
construction is inadmissible, unless the words require it.
[*175] If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the
supreme court should take original jurisdiction in cases which [**73] might be supposed to affect them; yet the clause
would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had
been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might
make, is no restriction; unless the words be deemed exclusive of original jurisdiction.
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[HN19] When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many
inferior courts as the legislature may ordain and establish; then enumerates its powers, and [***68] proceeds so far to
distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original
jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one
class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other
construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and
for adhering to their obvious meaning.
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be
necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will
of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the
jurisdiction must be appellate, not original.
[HN20] It is the essential criterion of appellate jurisdiction, that i…
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