At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case requiring the Secretary of State to show cause why a
mandamus should not issue directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the District of Columbia.
After dividing the district into two counties, the eleventh section of this law enacts, that there shall be appointed in and for each of the said counties such number of discreet persons to be justices of the peace as the President of the United States shall, from time to time, think
expedient, to continue in office for five years.
To grant a commission to a person appointed might perhaps be deemed a duty
enjoined by the Constitution.
The distinction between the appointment and the commission will be rendered more apparent by
adverting to that provision in the second section of the second article of the Constitution which authorises Congress to vest by law the appointment of such inferior officers as they think proper in the President alone, in the Courts of law, or in the heads of departments...
In such a case, therefore, the
commission and the appointment seem inseparable, it being almost impossible to show an appointment otherwise than by proving the existence of a
commission; still, the
commission is not necessarily the appointment; though conclusive evidence of it.
This appointment is evidenced by an open, unequivocal act, and, being the last act required from the person making it, necessarily excludes the idea of its being, so far as it respects the appointment, an
inchoate and incomplete transaction.
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.
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.
If the transmission of a commission be not considered as necessary to give
validity to an appointment, still less is its acceptance.
As he may resign, so may he refuse to accept; but neither the one nor the other is capable of rendering the appointment a
discretion of the Executive is to be exercised until the appointment has been made.
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.
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.
obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case.
behooves us, then, to inquire whether there be in its composition any ingredient which shall exempt from legal investigation or exclude the injured party from legal redress.
Is it to be contended that the heads of departments are not
amenable to the laws of their country?
But when the Legislature proceeds to impose on that officer other duties; when he is directed
peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law, is amenable to the laws for his conduct, and cannot at his discretion, sport away the vested rights of others.
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.
The intimate political relation, subsisting between the President of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as
delicate, and excites some hesitation with respect to the propriety of entering into such investigation.
Impressions are often received without much reflection or examination, and it is not wonderful that, in such a case as this, the assertion by an individual of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should, at first view, be considered by some as an attempt to intrude into the cabinet and to intermeddle with the
prerogatives of the Executive.
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.
If one of the heads of departments commits any illegal act under colour of his office by which an individual sustains an injury, it cannot be pretended that his office alone
exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law.
This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the record, and it only remains to be inquired: Whether it can
issue from this Court.
The act to establish the judicial courts of the United States authorizes the Supreme Court to issue
writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.
The 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.
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
solicitude of the Convention respecting our peace with foreign powers induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect them, yet the clause would have proceeded no further than to provide for such cases if no further restriction on the powers of Congress had been intended.
It is the essential
criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and therefore seems not to belong to appellate, but to original jurisdiction.
The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be
warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.
The 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.
The Constitution is either a superior,
paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
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.
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.
Those, then, who
controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.
ex post facto
The Constitution declares that "no bill of attainder or
ex post facto law shall be passed."
From these and many other selections which might be made, it is apparent that the framers of the Constitution
contemplated that instrument as a rule for the government of courts, as well as of the Legislature.
I do solemnly swear that I will
administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.
I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties
incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are
bound by that instrument.