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1 Cranch 137, 5 U.S. 137, 1803 WL 893 (U.S.Dist.Col.), 2 L.Ed. 60


(Cite as: 1 Cranch 137, 5 U.S. 137 (U.S.Dist.Col.), 1803 WL 893 (U.S.Dist.Col.))

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1 Cranch 137, 5 U.S. 137, 1803 WL 893 (U.S.Dist.Col.), 2 L.Ed. 60


(Cite as: 1 Cranch 137, 5 U.S. 137 (U.S.Dist.Col.), 1803 WL 893 (U.S.Dist.Col.))

k. Appellate Existence and Mandamus 250


jurisdiction in Adequacy of Other 63
Supreme Court of the general. Most Cited Remedy in General
United States Cases 250k3(2) 250 Mandamus
William MARBURY (Formerly Remedy at Law 250II Subjects and
v. 170Bk445, 30k17) Purposes of Relief
James MADISON, 250k3(4) k. Acts and 250II(B) Acts
Secretary of State of It is the essential proceedings of public and Proceedings of
the United States. criterion of “appellate officers and boards Public Officers and
jurisdiction” that it and municipalities in Boards and
revises and corrects general. Most Cited Municipalities
Feb. 1803.
the proceedings in a Cases 250k63 k.
cause already Officers subject to
West Headnotes
instituted and does Mandamus 250 mandamus in general.
not create that cause. 63 Most Cited Cases
Action 13 2

Evidence 157 34 250 Mandamus The propriety or


13 Action
250II Subjects and impropriety of issuing
13I Grounds and
157 Evidence Purposes of Relief a writ of mandamus is
Conditions Precedent
157I Judicial 250II(B) Acts to be determined by
13k2 k. Acts
Notice and Proceedings of the nature of the thing
or omissions
157k34 k. Public Officers and to be done and not by
constituting causes of
Laws of United Boards and the office of the
action in general.
States. Most Cited Municipalities person to whom the
Most Cited Cases
Cases 250k63 k. writ is directed.
Officers subject to
Where there is a mandamus in general.
The federal Mandamus 250
legal right, there is Most Cited Cases
constitution being 64
also a legal remedy by
intended as a rule for
suit, or action at law,
the courts as well as To render 250 Mandamus
whenever that right is
the legislature, the mandamus a proper 250II Subjects and
invaded.
courts will take remedy, the officer to Purposes of Relief
judicial notice of its whom it is directed, 250II(B) Acts
Federal Courts 170B must be one to whom,
provisions. and Proceedings of
3128 on legal principles, Public Officers and
such writ may be Boards and
Mandamus 250
170B Federal Courts directed, and the Municipalities
3(4)
170BXVI person applying for it 250k64 k.
Supreme Court must be without any State or national
250 Mandamus
170BXVI(A) other specific and boards and officers.
250I Nature and
In General legal remedy. Most Cited Cases
Grounds in General
170Bk3128
250k3

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1 Cranch 137, 5 U.S. 137, 1803 WL 893 (U.S.Dist.Col.), 2 L.Ed. 60


(Cite as: 1 Cranch 137, 5 U.S. 137 (U.S.Dist.Col.), 1803 WL 893 (U.S.Dist.Col.))

Where heads of mandate to him to do 170Bk442.1,


departments are a particular thing 250 Mandamus 106k379)
political and therein specified, 250II Subjects and
confidential agents of which appertains to Purposes of Relief Mandamus 250
executives, their acts his office and duty, 250II(B) Acts 141
in cases in which the and which the court and Proceedings of
executive possesses a has previously Public Officers and 250 Mandamus
constitutional or legal interpreted, or at least Boards and 250III
discretion are only supposes, to be Municipalities Jurisdiction,
politically consonant to right and 250k77 Proceedings, and
examinable, but justice. Title to and Relief
where a specific duty Possession of Office 250k141 k.
is assigned by law, Mandamus 250 Jurisdiction and
and individual rights 71 250k77(2) k. authority. Most Cited
depend upon the Administering oath Cases
performance of that and issuing
250 Mandamus
duty, the individual commission or
250II Subjects and Under
who considers himself certificate. Most Cited
Purposes of Relief U.S.C.A.Const. art. 3,
injured can resort to Cases
250II(B) Acts § 2, providing that the
the laws of his
and Proceedings of supreme court shall
country for a remedy.
Public Officers and A mandamus is have original
Boards and the proper remedy to jurisdiction in all
Mandamus 250 Municipalities compel a secretary of cases affecting
64 250k71 k. state to deliver a ambassadors and
Ministerial acts in commission to which other public ministers,
250 Mandamus general. Most Cited a party is entitled. and in cases in which
250II Subjects and Cases a state is a party, it
Purposes of Relief Federal Courts 170B has no power to issue
250II(B) Acts While the head of 3124 a writ of mandamus to
and Proceedings of a governmental the secretary of state,
Public Officers and department is not the issuing of such
170B Federal Courts
Boards and subject to mandamus writ being the
170BXVI
Municipalities in any matter exercise of an original
Supreme Court
250k64 k. involving the exercise jurisdiction not
170BXVI(A)
State or national of discretion, this writ conferred by the
In General
boards and officers. may issue against him constitution.
170Bk3123
Most Cited Cases in relation to matters Original Jurisdiction
wherein he performs a Mandamus 250
A writ of mere ministerial duty. 170Bk3124 k. In 141
mandamus is directed general. Most Cited
to an officer of the Mandamus 250 Cases 250 Mandamus
government, and its 77(2) (Formerly 250III

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1 Cranch 137, 5 U.S. 137, 1803 WL 893 (U.S.Dist.Col.), 2 L.Ed. 60


(Cite as: 1 Cranch 137, 5 U.S. 137 (U.S.Dist.Col.), 1803 WL 893 (U.S.Dist.Col.))

Jurisdiction, delivery of the 283I(C) constitution cannot


Proceedings, and commission is not Eligibility and become a law.
Relief necessary to Qualification
250k141 k. constitute the 283k38 k. Constitutional Law
Jurisdiction and appointment. Commission. Most 92 2540
authority. Most Cited Cited Cases
Cases Officers and Public 92 Constitutional Law
Employees 283 When a 92XX Separation
To issue a writ of 38 commission for an of Powers
mandamus to an officer, who does not 92XX(C)
officer for the 283 Officers and hold his office at the Judicial Powers and
delivery of a paper is Public Employees will of the president Functions
in effect the same as 283I of the United States, 92XX(C)3
to sustain an original Appointment, is signed by the Encroachment on
action for the paper, Qualification, and president and Executive
and belongs to Tenure transmitted to the 92k2540
“original jurisdiction” 283I(C) secretary of state, to k. In general. Most
and not to “appellate Eligibility and be sealed and Cited Cases
jurisdiction.” Qualification recorded, it is (Formerly 92k73)
283k38 k. irrevocable. The
Officers and Public Commission. Most appointment is
While the head of
Employees 283 Cited Cases complete.
a governmental
38 department is not
The secretary of Constitutional Law subject to mandamus
283 Officers and state cannot lawfully 92 655 or injunction in any
Public Employees withhold a matter involving the
283I commission signed 92 Constitutional Law exercise of discretion,
Appointment, and sealed, though 92V Construction these writs may yet be
Qualification, and directed so to do by and Operation of issued against him in
Tenure the president of the Constitutional relation to matters
283I(C) United States. Provisions wherein he performs a
Eligibility and 92V(F) mere ministerial duty,
Qualification Officers and Public Constitutionality of or is without power to
283k38 k. Employees 283 Statutory Provisions act at all.
Commission. Most 38 92k655 k.
Cited Cases In general. Most Cited Federal Courts 170B
Cases 3124
283 Officers and
The commission (Formerly 92k38)
Public Employees
is not the 283I 170B Federal Courts
appointment, but is Appointment, An act of 170BXVI
only evidence of an Qualification, and congress that is Supreme Court
appointment; and a Tenure repugnant to the 170BXVI(A)

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1 Cranch 137, 5 U.S. 137, 1803 WL 893 (U.S.Dist.Col.), 2 L.Ed. 60


(Cite as: 1 Cranch 137, 5 U.S. 137 (U.S.Dist.Col.), 1803 WL 893 (U.S.Dist.Col.))

In General A justice of the validity of letters States, severally


170Bk3123 peace, in the District patent. The President moved the court for a
Original Jurisdiction of Columbia, does not cannot authorize a rule to James
hold his office at the secretary of state to Madison, secretary of
170Bk3124 k. In will of the president. omit the state of the United
general. Most Cited performance*139 of States, to shew cause
Cases MARSHALL. those duties which are why a mandamus
(Formerly **1 *138 The enjoined by law. should not issue
170Bk442.1, supreme court of the commanding him to
106k379) U. States has not A justice of peace cause to be delivered
power to issue a in the district of to them respectively
Congress cannot mandamus to a Columbia is not their several
give the supreme secretary of state of removable at the will commissions as
court appellate the U. States, it being of the President. justices of the peace
jurisdiction where the an exercise of When a commission in the district of
constitution declares original jurisdiction for an officer not Columbia. This
that it shall be not warranted by the holding his office at motion was supported
original, nor original constitution. Congress the will of the by affidavits of the
jurisdiction where the have not power to President, is by him following facts; that
constitution declares give original signed and notice of this motion
that it shall be jurisdiction to the transmitted to the had been given to Mr.
appellate; hence the supreme court in secretary of state to be Madison; that Mr.
authority given by the other cases than those sealed and recorded, it Adams, the late
thirteenth section of described in the is irrevocable; the president of the
the judiciary act of constitution. An act of appointment is United States,
1789 (1 Stat. 80), to congress repugnant to complete. A nominated the
issue writs of the constitution mandamus is the applicants to the
mandamus to public cannot become a law. proper remedy to senate for their advice
officers, is not The courts of the U. compel a secretary of and consent to be
warranted by the States are bound to state to deliver a appointed justices of
constitution. take notice of the commission to which the peace of the
constitution. A the party is entitled. district of Columbia;
commission is not that the senate
District of Columbia
necessary to the advised and consented
132 7 *137 At the last
appointment of an to the appointments;
term, viz. December
officer by the that commissions in
132 District of term, 1801, William
executive—Semb. A due form were signed
Columbia Marbury, Dennis
commission is only by the said president
132k7 k. Officers, Ramsay, Robert
evidence of an appointing them
agents, and Townsend Hooe, and
appointment. justices, &c. and that
employees. Most William Harper, by
the seal of the United
Cited Cases their counsel, Charles
States was in due
Delivery is not Lee, esq. late attorney
form affixed to the
necessary to the general of the United

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1 Cranch 137, 5 U.S. 137, 1803 WL 893 (U.S.Dist.Col.), 2 L.Ed. 60


(Cite as: 1 Cranch 137, 5 U.S. 137 (U.S.Dist.Col.), 1803 WL 893 (U.S.Dist.Col.))

said commissions by rule having been duly their request has been examining these
the secretary of state; served, denied, and their witnesses, he would
that the applicants petition rejected. make a few remarks
have requested Mr. Mr. Lee, in They have therefore on the nature of the
Madison to deliver support of the rule, been compelled to office of secretary of
them their said observed that it was summon witnesses to state. His duties are of
commissions, who important to know on attend in court, whose two kinds, and he
has not complied with what ground a justice voluntary affidavits exercises his
that request; and that of peace in the district they could not obtain. functions in two
their said of Columbia holds his Mr. Lee here read the distinct capacities; as
commissions are office, and what affidavit of Dennis a public ministerial
withheld from them; proceedings are Ramsay, and the officer of the United
that the applicants necessary to printed journals of the States, and as agent of
have made application constitute an senate of 31 January, the President. In the
to Mr. Madison as appointment to an 1803, respecting the first his duty is to the
secretary of state of office not held at the refusal of the senate United States or its
the United States at will of the president. to suffer their citizens; in the other
his office, for However notorious secretary to give the his duty is to the
information whether the facts are, upon the information President; in the one
the commissions were suggestion of which requested. He then he is an independent,
signed and sealed as this rule has been laid, called Jacob Wagner and an accountable
aforesaid; that explicit yet the applicants and Daniel Brent, officer; in the other he
and satisfactory have been much who had been is dependent upon the
information has not embarrassed in summoned to attend President, is his agent,
been given in answer obtaining evidence of the court, and who and accountable to
to that inquiry, either them. Reasonable had, as it is him alone. In the
by the secretary of information has been understood, declined former capacity he is
state or any officer in denied at the office of giving a voluntary compellable by
the department of the department of affidavit. They mandamus to do his
state; that application state. Although a objected to being duty; in the latter he is
has been made to the respectful memorial sworn, alleging that not. This distinction is
secretary of the has been made to the they were clerks in clearly pointed out by
Senate for a senate praying them the department of the two acts of
certificate of the to suffer their state and not bound to congress upon this
nomination of the secretary to give disclose any facts subject. The first was
applicants, and of the extracts from their relating to the passed 27th July,
advice and consent of executive journals business or 1789, vol. 1. p. 359,
the senate, who has respecting the transactions in the entitled “an act for
declined giving such a nomination of the office. establishing an
certificate; whereupon applicants to the executive department,
a rule was laid to senate, and of their **2 Mr. Lee to be denominated the
shew cause on the 4th advice and consent to observed, that to shew department of foreign
day of this term. This the appointments, yet the propriety of affairs.” The first

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1 Cranch 137, 5 U.S. 137, 1803 WL 893 (U.S.Dist.Col.), 2 L.Ed. 60


(Cite as: 1 Cranch 137, 5 U.S. 137 (U.S.Dist.Col.), 1803 WL 893 (U.S.Dist.Col.))

section ascertains the affairs as the session on the 15th copies to be delivered
duties of the secretary President of the September 1789, vol. to the senators and
so far as he is United States shall 1, p. 41, c. 14, and is representatives and to
considered as a mere assign to the said entitled “An act to the executives of the
executive agent. It is department; and provide for the safe several states; and
in these words, “Be it furthermore, that the keeping of the acts, makes it his duty
enacted, &c. that said principal officer records, and seal of carefully to preserve
there shall be an shall conduct the the United States, and the originals; and to
executive department, business of the said for other purposes.” cause them to be
to be denominated the department in such The first section recorded in books to
department of foreign manner as the changes the name of be provided for that
affairs, and that there President of the the department and of purpose. The third
shall be a principal United States shall the secretary, calling section provides a
officer therein, to be from time to time the one the seal of the United
called the secretary of order or instruct.” department and the States. The fourth
the department of other the secretary of makes it his duty to
foreign affairs, who The second state. The second keep the said seal, and
shall perform and section provides for section assigns new to make out and
execute such duties as the appointment of a duties to the secretary, record, and to affix
shall from time to chief clerk; the third in the performance of the seal of the United
time be enjoined on, section prescribes the which it is evident, States to all civil
or intrusted to him by oath to be taken from their nature, he commissions, after
the President of the which is simply, “well cannot be lawfully they *141 shall have
United States, and faithfully to controlled by the been signed by the
agreeable to the execute the trust president, and for the President. The fifth
constitution, relative committed to him;” non-performance of section provides for a
to correspondencies, and the fourth and last which he is not more seal of office, and that
commissions*140 or section gives him the responsible to the all copies of records
instructions to or with custody of the books president than to any and papers in his
public ministers or and papers of the other citizen of the office, authenticated
consuls from the department of foreign United States. It under that seal, shall
United States; or to affairs under the old provides that he shall be as good evidence
negotiations with congress. Respecting receive from the as the originals. The
public ministers from the powers given and president all bills, sixth section
foreign states or the duties imposed by orders, resolutions establishes fees for
princes, or to this act, no mandamus and votes of the copies, &c. The
memorials or other will lie. The secretary senate and house of seventh and last
applications from is responsible only to representatives, which section gives him the
foreign public the President. The shall have been custody of the papers
ministers, or other other act of congress approved and signed of the office of the
foreigners, or to such respecting this by him; and shall secretary of the old
other matters department was cause them to be congress. Most of the
respecting foreign passed at the same published, and printed duties assigned by

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1 Cranch 137, 5 U.S. 137, 1803 WL 893 (U.S.Dist.Col.), 2 L.Ed. 60


(Cite as: 1 Cranch 137, 5 U.S. 137 (U.S.Dist.Col.), 1803 WL 893 (U.S.Dist.Col.))

this act are of a public public ministerial to perform them, is a mandamus, I must
nature, and the officer of the United also bound by the shew that the patent is
secretary is bound to States. And the duties same rules of recorded in his office.
perform them, being enjoined upon evidence. These My case would be
without the control of him by law, he is, in duties are not of a hard indeed if I could
any person. The executing them, confidential nature, not call upon the
President has no right uncontrollable by the but are of a public clerks in the office to
to prevent him from President; and if he kind, and his clerks give evidence of that
receiving the bills, neglects or refuses to can have no exclusive fact. Again, suppose a
orders, resolutions perform them, he may privileges. There are private act of
and votes of the be compelled by undoubtedly facts, congress had passed
legislature, or from mandamus, in the which may come to for my benefit. It
publishing and same manner as other their knowledge by becomes necessary
distributing them, or persons holding means of their for me to have the use
from preserving or offices under the connection with the of that act in a court
recording them. authority of the secretary of state, of law. I apply for a
While the secretary United States. The respecting which copy. I am refused.
remains in office the President is no party *142 they cannot be Shall I not be
President cannot take to this case. The bound to answer. permitted, on a
from his custody the secretary is called Such are the facts motion for a
seal of the United upon to perform a concerning foreign mandamus, to call
States, nor prevent duty over which the correspondencies, and upon the clerks in the
him from recording, President has no confidential office to prove that
and affixing the seal control, and in regard communications such an act is among
to civil commissions to which he has no between the head of the rolls of the office,
of such officers as dispensing power, and the department and or that it is duly
hold not their offices for the neglect of the President. This, recorded? Surely it
at the will of the which he is in no however, can be no cannot be contended
President, after he has manner responsible. objection to their that although the laws
signed them and The secretary alone is being sworn, but may are to be recorded, yet
delivered them to the the person to whom be a ground of no access is to be had
secretary for that they are entrusted, objection to any to the records, and no
purpose. By other and he alone is particular question. benefit to result
laws he is to make out answerable for their Suppose I claim title therefrom.
and record in his due performance. The to land under a patent
office patents for secretary of state, from the United **3 The court
useful discoveries, therefore, being in the States. I demand a ordered the witnesses
and patents of lands same situation, as to copy of it from the to be sworn and their
granted under the these duties, as every secretary of state. He answers taken in
authority of the other ministerial refuses. Surely he writing, but informed
United States. In the officer of the United may be compelled by them that when the
performance of all States, and equally mandamus to give it. questions were asked
these duties he is a liable to be compelled But in order to obtain they might state their

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1 Cranch 137, 5 U.S. 137, 1803 WL 893 (U.S.Dist.Col.), 2 L.Ed. 60


(Cite as: 1 Cranch 137, 5 U.S. 137 (U.S.Dist.Col.), 1803 WL 893 (U.S.Dist.Col.))

objections to this cause. He further believed none of the called, objected to


answering each testified that some of commissions for answering. He
particular question, if the commissions of justices of the peace requested that the
they had any. the justices, but he signed by Mr. Adams, questions might be
believed not all, were were recorded. After put in writing, and
**4 Mr. Wagner recorded. He did not the commissions for that he might
being examined upon know whether the justices of the peace afterwards have time
interrogatories, commissions of the were made out, he to determine whether
testified, that at this applicants were *143 carried them to Mr. he would answer. On
distance of time he recorded, as he had Adams for his the one hand he
could not recollect not had recourse to signature. After being respected the
whether he had seen the book for more signed he carried jurisdiction of this
any commission in than twelve months them back to the court, and on the
the office, past. secretary's office, other he felt himself
constituting the where the seal of the bound to maintain the
applicants, or either of Mr. Daniel Brent United States was rights of the
them justices of the testified, that he did affixed to them. That executive. He was
peace. That Mr. not remember commissions are not acting as secretary of
Marbury and Mr. certainly the names of usually delivered out state at the time when
Ramsay called on the any of the persons in of the office before this transaction
secretary of state the commissions of they are recorded; but happened. He was of
respecting their justices of the peace sometimes they are, opinion, and his
commissions. That signed by Mr. Adams; and a note of them opinion was
the secretary referred but believed, and was only is taken, and supported by that of
them to him; he took almost certain, that they are recorded others whom he
them into another Mr. Marbury's and afterwards. He highly respected, that
room and mentioned col. Hooe's believed none of he was not bound, and
to them, that two of commissions were those commissions of ought not to answer,
the commissions had made out, and that justices were ever as to any facts which
been signed, but the Mr. Ramsay's was sent out, or delivered came officially to his
other had not. That he not; that he made out to the persons for knowledge while
did not know that fact the list of names by whom they were acting as secretary of
of his own which the clerk who intended; he did not state.
knowledge, but by the filled up the know what became of
information of others. commissions was them, nor did he The questions
Mr. Wagner declined guided; he believed know that they are being written were
answering the that the name of Mr. now in the office of then read and handed
question “who gave Ramsay was the secretary of state. to him. He repeated
him that information;” pretermitted by the ideas he had
and the court decided mistake, but to the Mr. Lincoln, before suggested, and
that he was not bound best of his knowledge attorney general, said his objections
to answer it, because it contained the names having been were of two kinds.
it was not pertinent to of the other two; he summoned, and now

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1 Cranch 137, 5 U.S. 137, 1803 WL 893 (U.S.Dist.Col.), 2 L.Ed. 60


(Cite as: 1 Cranch 137, 5 U.S. 137 (U.S.Dist.Col.), 1803 WL 893 (U.S.Dist.Col.))

**5 *144 1st. He did not act as a public


did not think himself ministerial officer, but The court said, The court granted
bound to disclose his in the capacity of an that if Mr. Lincoln it and postponed
official transactions agent of the President, wished time to further consideration
while acting as bound to obey his consider what of the cause till the
secretary of state; and orders, and answers he should next day.
accountable to him make, they would
2d. He ought not for his conduct. And give him time; but At the opening of
to be compelled to that as to any facts they had no doubt he the court on the next
answer any thing which came officially ought to answer. morning, Mr. Lincoln
which might tend to to his knowledge in There was nothing said he had no
criminate himself. the discharge of this confidential required objection to
part of his duties, he to be disclosed. If answering the
was not bound to there had been he was
Mr. Lee, in reply, questions proposed,
answer. He agreed not obliged to answer
repeated the substance excepting the last
that Mr. Lincoln was it; and if he thought
of the observations he which he did not think
not bound to disclose that any thing was
had before made in himself obliged to
any thing which communicated to him
answer to the answer fully. The
might tend to in confidence he was
objection of Mr. question was, what
criminate himself. not bound to disclose
Wagner and Mr. had been done with
Brent. He stated that it; nor was he obliged the commissions. He
the duties of a Mr. Lincoln to state any thing had no hesitation in
secretary of state were thought it was going a which would saying that he did not
two-fold. In great way to say that criminate himself; but know that they ever
discharging one part every secretary of that the fact whether came to the
of those duties he state should at all such commissions had possession of Mr.
acted as a public times be liable to be been in the office or Madison, nor did he
ministerial officer of called upon to appear not, could not be a know that they were
the United States, as a witness in a court confidential fact; it in the office when Mr.
totally independent of of justice, and testify *145 is a fact which Madison took
the President, and that to facts which came to all the world have a possession of it. He
as to any facts which his knowledge right to know. If he prayed the opinion of
came officially to his officially. He felt thought any of the the court whether he
knowledge, while himself delicately questions improper, was obliged to
acting in this capacity, situated between his he might state his disclose what had
he was as much duty to this court, and objections. been done with the
bound to answer as a the duty he conceived commissions.
marshal, a collector, he owed to an Mr. Lincoln then
or any other executive department; prayed time till the The court were of
ministerial officer. and hoped the court next day to consider opinion that he was
But that in the would give him time of his answers under not bound to say what
discharge of the other to consider of the this opinion of the had become of them;
part of his duties, he subject. court.

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1 Cranch 137, 5 U.S. 137, 1803 WL 893 (U.S.Dist.Col.), 2 L.Ed. 60


(Cite as: 1 Cranch 137, 5 U.S. 137 (U.S.Dist.Col.), 1803 WL 893 (U.S.Dist.Col.))

if they never came to informed of their the whole, he returned The argument
the possession of Mr. being thus appointed. several of them, and upon the 1st question
Madison, it was He did not know that struck a pen through is derived not only
immaterial to the any one of the the names of those, in from the principles
present cause, what commissions was ever the receipt, which he and practice of that
had been done with sent to the person for returned. Among the country, from whence
them by others. whom it was made commissions so we derive many of the
out, and did not returned, according to principles of our
**6 To the other believe that any one the best of his political institutions,
questions he answered had been sent. knowledge and belief, but from the
that he had seen was one for colonel constitution and laws
commissions of *146 Mr. Lee Hooe, and one for of the United States.
justices of the peace then read the affidavit William Harper.
of the district of of James Marshall, This is the
Columbia, signed by who had been also Mr. Lee then supreme court, and by
Mr. Adams, and summoned as a observed, that having reason of its
sealed with the seal of witness. It stated that proved the existence supremacy must have
the United States. He on the 4th of March of the commissions, the superintendance
did not recollect 1801, having been he should confine of the inferior
whether any of them informed by some such further remarks tribunals and officers,
constituted Mr. person from as he had to make in whether judicial or
Marbury, col. Hooe, Alexandria that there support of the rule to ministerial. In this
or col. Ramsay, was reason to three questions; respect there is no
justices of the peace; apprehend riotous difference between a
there were when he proceedings in that 1st. Whether the judicial and a
went into the office town on that night, he supreme court can ministerial officer.
several commissions was induced to return award the writ of From this principle
for justices of peace immediately home, mandamus in any alone the court of
of the district made and to call at the case. king's bench in
out; but he was office of the secretary England derives the
furnished with a list of state, for the power of issuing the
2d. Whether it
of names to be put commissions of the writs of mandamus
will lie to a secretary
into a general justices of the peace; and prohibition. 3.
of state in any case
commission, which that as many as 12, as Inst. 70, 71. *147
whatever.
was done, and was he believed, Shall it be said that
considered as commissions of the court of king's
3d. Whether in
superseding the justices for that bench has this power
the present case the
particular county were delivered in consequence of its
court may award a
commissions; and the to him for which he being the supreme
mandamus to James
individuals whose gave a receipt, which court of judicature,
Madison, secretary of
names were contained he left in the office. and shall we deny it
state.
in this general That finding he could to this court which the
commission were not conveniently carry constitution makes the

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supreme court? It is a and every injury its remedial nature, and by legislative
beneficial, and a proper redress. 3 Bl. issues in all cases provision as well as in
necessary power; and com. 109. There are where the party has a judicial decisions in
it can never be some injuries which right to have any this court.
applied where there is can only be redressed thing done, and has
another adequate, by a writ of no other specific Congress, by a
specific, legal remedy. mandamus, and others means of compelling law passed at the very
by a writ of its performance.” first session after the
The second prohibition. There adoption of the
section of the third must then be a In the Federalist, constitution, vol. 1, p.
article of the jurisdiction some vol. 2, p. 239, it is 58, sec. 13, have
constitution gives this where competent to said, that the word expressly given the
court appellate issue that kind of “appellate” is not to supreme court the
jurisdiction in all process. Where are be taken in its power of issuing writs
cases in law and we to look for it but in technical sense, as of mandamus. The
equity arising under that court which the used in reference to words are, “The
the constitution and constitution and laws appeals in the course supreme court shall
laws of the United have made supreme, of the civil law, but in also have appellate
States (except the and to which they its broadest sense, in jurisdiction from the
cases in which it has have given appellate which it denotes circuit courts, and
original jurisdiction) jurisdiction? nothing more than the courts of the several
with such exceptions, Blackstone, vol. 3, p. power of one tribunal states, in the cases
and under such 110, says that a writ to review the herein after specially
regulations as of mandamus is “a proceedings*148 of provided for; and
congress shall make. command issuing in another, either as to shall have power to
The term “appellate the king's name from law or fact, or both. issue writs of
jurisdiction” is to be the court of king's The writ of prohibition to the
taken in its largest bench, and directed to mandamus is in the district courts, when
sense, and implies in any person, nature of an appeal as proceeding as courts
its nature the right of corporation or inferior to fact as well as law. of admiralty and
superintending the court, requiring them It is competent for maritime jurisdiction;
inferior tribunals. to do some particular congress to prescribe and writs of
thing therein the forms of process mandamus, in cases
specified, which by which the supreme warranted by the
**7 Proceedings
appertains to their court shall exercise its principles and usages
in nature of appeals
office and duty, and appellate jurisdiction, of law, to any courts
are of various kinds,
which the court has and they may well appointed, or persons
according to the
previously declare a mandamus holding office, under
subject matter. 3 Bl.
determined, or at least to be one. But the the authority of the
com. 402. It is a
supposes, to be power does not United States.”
settled and invariable
consonant to right and depend upon
principle, that every
justice. It is a writ of a implication alone. It
right, when withheld, Congress is not
most extensively has been recognized
must have a remedy, restrained from

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conferring original support the motion. In him to admit a person declare it to be my


jurisdiction in other the case of the United to subscribe to the opinion, grounded on
cases than those States v. judge Peters United States loan. a comprehensive view
mentioned in the a writ of prohibition Upon argument the of the subject, that the
constitution. 2 Dal. was granted, 3. Dal. mandamus was President is not
Rep. 298. Rep. 121, 129. This refused because the amenable to any court
was the celebrated applicant had not of judicature for the
**8 This court case of the French sufficiently exercise of his high
has entertained *149 corvette the established his title. In functions, but is
jurisdiction on a Cassius, which none of these cases, responsible only in
mandamus in one afterwards became a nor in any other, was the mode pointed out
case, and on a subject of diplomatic the power of this in the constitution.
prohibition in another. controversy between court to issue a The secretary of state
In the case of the the two nations. On mandamus ever acts, as before
United States v. judge the 5th Feb. 1794, a denied. Hence it observed, in two
Lawrence, 3. Dal. motion was made to appears there has capacities. As the
Rep. 42, a mandamus the supreme court in been a legislative agent of the President,
was moved for by the behalf of one John construction of the he is not liable to a
attorney general at the Chandler, a citizen of constitution upon this mandamus; but as a
instance of the French Connecticut, for a point, and a judicial recorder of the laws
minister, to compel mandamus to the practice under it, for of the United States;
judge Lawrence to secretary at war, the whole time since as keeper of the great
issue a warrant commanding him to the formation of the seal, as recorder of
against captain Barre, place Chandler on the government. deeds of land, of
commander of the invalid pension list. letters patent, and of
French ship of war Le After argument, the 2d. The second commissions, &c. he
Perdrix, grounded on court refused the point is, can a is a ministerial officer
an article of the mandamus, because mandamus go to a of the people of the
consular convention the two acts of secretary of state in United States. As such
with France. In this congress respecting any case? It certainly he has duties assigned
case the power of the invalids, did not cannot in all cases; him by law, in the
court to issue writs of support the case on nor to the President in execution of which he
mandamus, was taken which the applicant any case. It may not is independent of all
for granted in the grounded his motion. be proper to mention control, but that of the
arguments of counsel The case of the this position; but I am laws. It is true he is a
on both sides, and United States v. compelled to do it. An high officer, but he is
seems to have been so Hopkins, at February idea has gone forth, not above law. It is
considered by the term, 1794, was a that a mandamus to a not consistent with
court. The mandamus motion for a secretary of state is the policy of our
was refused, because mandamus to equivalent to a political institutions,
the case in which it Hopkins, loan officer mandamus to the or the manners of the
was required, was not for the district of President of the citizens of the United
a proper one to Virginia, to command United States. I States, that any

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ministerial officer of the act of congress, the commission of a 3d. The third
having public duties vol. 1, p. 43, copies judicial officer. The point is, whether in
to perform, *150 under seal of the duty of the secretary the present case a writ
should be above the office of the is precisely the same. of mandamus ought to
compulsion of law in department of state be awarded to James
the exercise of those are made evidence in Judge Patterson Madison, secretary of
duties. As a courts of law, and fees inquired of Mr. Lee state.
ministerial officer he are given for making whether he
is compellable to do them out. The understood it to be the The justices of
his duty, and if he intention of the law duty of the secretary the peace in the
refuses, is liable to must have been, that to deliver a district of Columbia
indictment. A every person needing commission, unless are judicial officers,
prosecution of this a copy should be ordered so to do by and hold their office
kind might be the entitled to it. Suppose the President. for five years. The
means of punishing the secretary refuses office is established
the officer, but a to give a copy, ought by the act of Congress
Mr. Lee replied,
specific civil remedy he not to be passed the 27th of
that after the
to the injured party compelled? Suppose I Feb. 1801, entitled
President has signed a
can only be obtained am entitled to a patent “An act concerning
commission for an
by a writ of for lands purchased of the district of
office not held at his
mandamus. If a the United States; it is Columbia,” ch. 86,
will, and it comes to
mandamus can be made out and signed sec. 11 and 14; page
the secretary to be
awarded by this court by the President who 271, 273. They are
sealed, the President
in any case, it may gives a warrant to the authorized to hold
has done with it, and
issue to a secretary of secretary to affix the courts and have
nothing remains, but
state; for the act of great seal to the cognizance of
that the secretary
congress expressly patent; he refuses to personal demands of
perform those
gives the power to do it; shall I not have the value of 20
ministerial acts which
award it, “in cases a mandamus to dollars. The act of
the law imposes upon
warranted by the compel him? Suppose May 3d, 1802, ch. 52,
him. It immediately
principles and usages the seal is affixed, but sec. 4, considers them
becomes his duty to
of law, to any person the secretary refuses as judicial officers,
seal, record, and
holding offices under to record it; shall he and provides the
deliver*151 it on
the authority of the not be compelled? mode in which
demand. In such a
United States.” Suppose it recorded, execution shall issue
case the appointment
and he refuses to upon their judgments.
becomes complete by
Many cases may deliver it; shall I have They hold their
the signing and
be supposed, in which no remedy? offices independent of
sealing; and the
a secretary of state secretary does wrong the will of the
ought to be compelled **9 In this if he withholds the President. The
to perform his duty respect there is no commission. appointment of such
specifically. By the difference between a an officer is complete
5th and 6th sections patent for lands, and when the President

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has nominated him to observations and suffer them to be tenements, whereby


the senate, and the ideas which he violated by the hand they would be entitled
senate have advised wished might be of power. The citizens to vote for members
and consented, and generally read and of this district have of parliament. In the
the President has understood. They their fears excited by case of Rex v. Dr.
signed the contained the every stretch of power Hay, 1. W.Bl.Rep.
commission and principles upon which by a person so high in 640, a mandamus
delivered it to the this branch of our office as the secretary issued to admit one to
secretary to be sealed. constitution was of state. administer an estate.
The President has constructed. It is
then done with it; it important to the **10 It only A mandamus
becomes irrevocable. citizens of this district remains now to gives no right, but
An appointment of a that the justices consider whether a only puts the party in
judge once should be mandamus to compel a way to try his right.
completed, is made independent; almost the delivery of a Sid. 286.
forever. He holds all the authority commission by a
under the constitution. immediately public ministerial It lies to compel a
The requisites to be exercised over them is officer, is one of “the ministerial act which
performed by the that of the justices. cases warranted by concerns the public.
secretary are They wish to know the principles and 1. Wilson, 283, 1.
ministerial, whether the justices usages of law.” Bl.Rep. 640—
ascertained by law, of this district are to
although there be a
and he has no hold their
It is the general more tedious remedy,
discretion, but must commissions at the
principle of law that a Str. 1082, 4 Bur.
perform them; there is will of a secretary of
mandamus lies, if 2188, 2 Bur. 1045; So
no dispensing power. state. *152 This cause
there be no other if there be a legal
In contemplation of may seem trivial at
adequate, specific, right, and a remedy in
law they are as if first view, but it is
legal remedy; 3 equity, 3. Term Rep.
done. important in principle.
Burrow, 1067, King v. 652. A mandamus lies
It is for this reason
Barker, and al. This to obtain admission
These justices that this court is now
seems to be the result into a trading
exercise part of the troubled with it. The
of a view of all the company. Rex v.
judicial power of the emoluments or the
cases on the subject. Turkey Company, 2
United States. They dignity of the office,
Bur. 1000. Carthew
ought therefore to be are no objects with
The case of 448. 5 Mod. 402; So
independent. Mr. Lee the applicants. They
Rex.v. Borough of it lies to put the
begged leave again to conceive themselves
Midhurst, 1. Wils. corporate seal to an
refer to the Federalist, to be duly appointed
283, was a mandamus instrument. 4.
vol. 2, Nos. 78 and justices of the peace,
to compel the Term.Rep. 699; to
79, as containing a and they believe it to
presentment of certain commissioners of the
correct view of this be their duty to
conveyances to excise to grant a
subject. They maintain the rights of
purchasers of burgage permit, 2 Term.Rep.
contained their office, and not to
381; to admit to an

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office, 3 Term.Rep. arbitrary will. If the Afterwards, on the opinion to be


575; to deliver papers applicant makes out a the 24th of February given by the court, is
which concern the proper case, the court the following opinion founded.
public, 2 Sid. 31. A are bound to grant it. of the court was
mandamus will They can refuse delivered by the chief These principles
sometimes lie in a justice to no man. justice. have been, on the side
*153 doubtful case, 1 of the applicant, very
Levinz 123, to be On a subsequent Opinion of the ably argued at the bar.
further considered on day, and before the court. In rendering the
the return, 2 Levinz, court had given an opinion of the court,
14. 1 Sidersin, 169. opinion, Mr. Lee read there will be some
At the last term
the affidavit of Hazen on the affidavits then departure in form,
It lies to be Kimball, who had read and filed with the though not in
admitted a member of been a clerk in the clerk, a rule was substance, from the
a church, 3. Bur. office of the Secretary granted in this case, points stated in that
1265, 1043. of State, and had been requiring the secretary argument.
to a distant part of the of state to shew cause
**11 The process United States, but why a mandamus In the order in
is as ancient as the whose return was not *154 should not issue, which the court has
time of Ed.2d. 1 known to the directing him to viewed this subject,
Levinz 23. applicant till after the deliver to William the following
argument of the case. Marbury his questions have been
The first writ of commission as a considered and
mandamus is not It stated that on justice of the peace decided.
peremptory, it only the third of March, for the county of
commands the officer 1801, he was a clerk Washington, in the 1st. Has the
to do the thing or in the department of district of Columbia. applicant a right to the
shew cause why he state. That there were commission he
should not do it. If the in the office, on that No cause has demands?
cause returned be day, commissions been shewn, and the
sufficient, there is an made out and signed present motion is for a 2dly. If he has a
end of the proceeding, by the president, mandamus. The right, and that right
if not, a peremptory appointing William peculiar delicacy of has been violated, do
mandamus is then Marbury a justice of this case, the novelty the laws of his
awarded. peace for the county of some of its country afford him a
of Washington; and circumstances, and remedy?
Robert T. Hooe a the real difficulty
It is said to be a
justice of the peace attending the points
writ of discretion. But 3dly. If they do
for the county of which occur in it,
the discretion of a afford him a remedy,
Alexandria, in the require a complete
court always means a is it a mandamus
district of Columbia. exposition of the
found, legal issuing from this
discretion, not an principles, on which
court?

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Washington, was United States, whose seem to contemplate


The first object of signed by John appointments are not three distinct
inquiry is, Adams, then president otherwise provided operations:
of the United States; for.”
after which the seal of 1st. The
1st. Has the
the United States was The third section nomination. This is
applicant a right to the
affixed to it; but the declares, that “he the sole act of the
commission he
commission has never shall commission all President, and is
demands?
reached the person for the officers of the completely voluntary.
whom it was made United States.”
His right
out.
originates in an act of 2d. The
congress passed in An act of appointment. This is
**12 In order to congress directs the also the act of the
February 1801,
determine whether he secretary of state to President, and is also
concerning the district
is entitled to this keep the seal of the a voluntary act,
of Columbia.
commission, it United States, “to though it can only be
becomes necessary to make out and record, performed by and
After dividing the
enquire whether he and affix the said seal with the advice and
district into two
has been appointed to to all civil consent of the senate.
counties, the 11th
the office. For if he commissions to
section of this law,
has been appointed, officers of the United
enacts, “that there *156 3d. The
the law continues him States, to be
shall be appointed in commission. To grant
in office for five appointed by the
and for each of the a commission to a
years, and he is President, by and with
said counties, such person appointed,
entitled to the the consent of the
number of discreet might perhaps be
possession of those senate, or by the
persons to be justices deemed a duty
evidences of office, President alone;
of the peace as the enjoined by the
which, being provided that the said
president of the constitution. “He
completed, became seal shall not be
United States shall, shall,” says that
his property. affixed to any
from time to time, instrument,
commission before “commission all the
think expedient, to
The 2d section of the same shall have officers of the United
continue in office for
the 2d article of the been signed by the States.”
five years.
constitution, declares, President of the
that, “the president United States.”
*155 It appears, The acts of
shall nominate, and,
from the affidavits, appointing to office,
by and with the These are the
that in compliance and commissioning
advice and consent of clauses of the
with this law, a the person appointed,
the senate, shall constitution and laws
commission for can scarcely be
appoint ambassadors, of the United States,
William Marbury as a considered as one and
other public ministers which affect this part
justice of peace for the same; since the
and consuls, and all of the case. They
the county of power to perform
other officers of the

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them is given in two to commission all the enable him to perform this question seems an
separate and distinct officers of the United the duties without it. obvious one. The
sections of the States, may never appointment being the
constitution. The have been applied to These sole act of the
distinction between officers appointed observations are President, must be
the appointment and otherwise than by premised solely for completely evidenced,
the commission will himself, yet it would the purpose of when it is shewn that
be rendered more be difficult to deny rendering more he has done
apparent, by adverting the legislative power intelligible those everything to be
to that provision in to apply it to such which apply more performed by him.
the second section of cases. Of directly to the
the second article of consequence the particular case under Should the
the constitution, constitutional consideration. commission, instead
which authorizes distinction between of being evidence of
congress “to vest, by the appointment to an an appointment, even
*157 This is an
law, the appointment office and the be considered as
appointment made by
of such inferior commission of an constituting the
the President, by and
officers, as they think officer, who has been appointment itself;
with the advice and
proper, in the appointed, remains still it would be made
consent of the senate,
President alone, in the the same as if in when the last act to be
and is evidenced by
courts of law, or in the practice the President done by the President
no act but the
heads of had commissioned was performed, or, at
commission itself. In
departments;” thus officers appointed by furthest, when the
such a case therefore
contemplating cases an authority other commission was
the commission and
where the law may than his own. complete.
the appointment seem
direct the President to
inseparable; it being
commission an officer **13 It follows almost impossible to The last act to be
appointed by the too, from the shew an appointment done by the President,
courts, or by the existence of this otherwise than by is the signature of the
heads of departments. distinction, that, if an proving the existence commission. He has
In such a case, to appointment was to of a commission; still then acted on the
issue a commission be evidenced by any the commission is not advice and consent of
would be apparently a public act, other than necessarily the the senate to his own
duty distinct from the the commission, the appointment; though nomination. The time
appointment, the performance of such conclusive evidence for deliberation has
performance of public act would of it. then passed. He has
which, perhaps, could create the officer; and decided. His
not legally be refused. if he was not
But at what stage judgment, on the
removable at the will advice and consent of
does it amount to this
Although that of the President, the senate concurring
conclusive evidence?
clause of the would either give him with his nomination,
constitution which a right to his has been made, and
The answer to
requires the President commission, or the officer is

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appointed. This enacted, that the commission, is ministerial act which


appointment is secretary of state shall conclusive evidence the law enjoins on a
evidenced by an open, keep the seal of the that the appointment particular officer for a
unequivocal act; and United States, “and is made. particular purpose.
being the last act shall make out and
required from the record, and shall affix The commission If it should be
person making it, the said seal to all being signed, the supposed, that the
necessarily excludes civil commissions to subsequent duty of solemnity of affixing
the idea of its being, officers of the United the secretary of state the seal, is necessary
so far as respects the States, to be is prescribed by law, not only to the
appointment, an appointed by the and not to be guided validity of the
inchoate and President:” “Provided by the will of the commission, but even
incomplete that the said seal shall President. He is to to the completion of
transaction. not be affixed to any affix the seal of the an appointment, still
commission, before United States to the when the seal is
Some point of the same shall have commission, and is to affixed the
time must be taken been signed by the record it. appointment is made,
when the power of the President of the and *159 the
executive over an United States; nor to commission is valid.
This is not a
officer, not removable any other instrument No other solemnity is
proceeding which
at his will, must or act, without the required by law; no
may be varied, if the
cease. That point of special warrant of the other act is to be
judgment of the
time must be when President therefore.” performed on the part
executive shall
the constitutional suggest one more of government. All
power of appointment The signature is a eligible; but is a that the executive can
has been exercised. warrant for affixing precise course do to invest the
And this power has the great seal to the accurately marked out person with his office,
been exercised when commission; and the by law, and is to be is done; and unless
the last act, required great seal is only to be strictly pursued. It is the appointment be
from the person affixed to an the duty of the then made, the
possessing the power, instrument which is secretary of state to executive cannot
has been performed. complete. It attests, conform to the law, make one without the
This last act is the by an act supposed to and in this he is an co-operation of
signature of the be of public notoriety, officer of the United others.
commission. This the verity of the States, bound to obey
idea seems to have Presidential signature. the laws. He acts, in After searching
prevailed with the this respect, as has anxiously for the
legislature, when the **14 It is never been very properly principles on which a
act passed, converting to be affixed till the stated at the bar, contrary opinion may
the department *158 commission is signed, under the authority of be supported, none
of foreign affairs into because the signature, law, and not by the have been found
the department of which gives force and instructions of the which appear of
state. By that act it is effect to the President. It is a sufficient force to

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maintain the opposite its support, is letters patent, certain should himself take
doctrine. established. solemnities are means to procure his
required by law, commission, the
Such as the The appointment which solemnities are appointment would
imagination of the being, under the the evidences *160 of not be the less valid
court could suggest, constitution, to be the validity of the on that account. The
have been very made by the President instrument. A formal appointment is the
deliberately personally, the delivery to the person sole act of the
examined, and after delivery of the deed is not among them. In President; the
allowing them all the of appointment, if cases of commissions, transmission of the
weight which it necessary to its the sign manual of the commission is the
appears possible to completion, must be President, and the seal sole act of the officer
give them, they do not made by the President of the United States, to whom that duty is
shake the opinion also. It is not are those solemnities. assigned, and may be
which has been necessary that the This objection accelerated or
formed. livery should be made therefore does not retarded by
personally to the touch the case. circumstances which
grantee of the office: can have no influence
In considering
It never is so made. **15 It has also on the appointment. A
this question, it has
The law would seem occurred as possible, commission is
been conjectured that
to contemplate that it and barely possible, transmitted to a
the commission may
should be made to the that the transmission person already
have been assimilated
secretary of state, of the commission, appointed; not to a
to a deed, to the
since it directs the and the acceptance person to be
validity of which,
secretary to affix the thereof, might be appointed or not, as
delivery is essential.
seal to the deemed necessary to the letter enclosing
commission after it complete the right of the commission
This idea is
shall have been the plaintiff. should happen to get
founded on the
signed by the into the post-office
supposition that the
President. If then the and reach him in
commission is not The transmission
act of livery be safety, or to miscarry.
merely evidence of an of the commission, is
necessary to give a practice directed by
appointment, but is
validity to the convenience, but not It may have some
itself the actual
commission, it has by law. It cannot tendency to elucidate
appointment; a
been delivered when therefore be necessary this point, to enquire,
supposition by no
executed and given to to constitute the whether the
means
the secretary for the appointment which possession of the
unquestionable. But
purpose of being must precede it, and original commission
for the purpose of
sealed, recorded, and which is the mere act be indispensably
examining this
transmitted to the of the President. If the necessary to authorize
objection fairly, let it
party. executive required a person, appointed to
be conceded, that the
that every person any office, to perform
principle, claimed for
But in all cases of appointed to an office, the duties of that

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office. If it was performed which terms prescribed by whole tenor of its


necessary, then a loss authorize a recording law? conduct.
of the commission officer to record any
would lose the office. instrument whatever, **16 Such a copy A commission
Not only negligence, and the order for that would, equally with bears date, and the
but accident or fraud, purpose has been the original, authorize salary of the officer
fire or theft, might given, the instrument the justice of peace to commences from his
deprive an individual is, in law, considered proceed in the appointment; not from
of his office. In such a as recorded, although performance of his the transmission or
case, I presume it the manual labour of duty, because it acceptance of his
could not be doubted, inserting it in a book would, equally with commission. When a
but that a copy from kept for that purpose the original, attest his person, appointed to
the record of the may not have been appointment. any office, refuses to
office of the secretary performed. accept that office, the
of state, would be, to successor is
If the
every intent and In the case of nominated in the
transmission of a
purpose, equal to the commissions, the law place of the person
commission be not
original. The act of orders the secretary of who *162 has
considered as
congress has state to record them. declined to accept,
necessary to give
expressly made it so. When therefore they and not in the place of
validity to an
To give that copy are signed and sealed, the person who had
appointment; still less
validity, it would not the order for their been previously in
is its acceptance. The
be necessary to prove being recorded is office, and had
appointment is the
that the original had given; and whether created the original
sole act of the
been transmitted and inserted in the book or vacancy.
President; the
afterwards lost. The not, they are in law acceptance is the sole
copy would be recorded. act of the officer, and It is therefore
complete evidence
is, in plain common decidedly the opinion
that the original had
A copy of this sense, posterior to the of the court, that
existed, and that the
record is declared appointment. As he when a commission
appointment had been
equal to the original, may resign, so may he has been signed by
made, but, not that the
and the fees, to be refuse to accept: but the President, the
original had been
paid by a person neither the one, nor appointment is made;
transmitted. If indeed
requiring a copy, are the other, is capable and that the
it should appear that
ascertained by law. of rendering the commission is
*161 the original had
Can a keeper of a appointment a non- complete, when the
been mislaid in the
public record, erase entity. seal of the United
office of state, that
therefrom a States has been
circumstance would
commission which That this is the affixed to it by the
not affect the
has been recorded? Or understanding of the secretary of state.
operation of the copy.
can he refuse a copy government, is
When all the
thereof to a person apparent from the Where an officer
requisites have been
demanding it on the

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is removable at the commission was claim the protection possible injuries


will of the executive, signed by the of the laws, whenever whatsoever, that did
the circumstance President, and sealed he receives an injury. not fall within the
which completes his by the secretary of One of the first duties exclusive cognizance
appointment is of no state, was appointed; of government is to of either the
concern; because the and as the law afford that protection. ecclesiastical,
act is at any time creating the office, In Great Britain the military, or maritime
revocable; and the gave the officer a king himself is sued tribunals, are for that
commission may be right to hold for five in the respectful form very reason, within
arrested, if still in the years, independent of of a petition, and he the cognizance of the
office. But when the the executive, the never fails to comply common law courts of
officer is not appointment was not with the judgment of justice; for it is a
removable at the will revocable; but vested his court. settled and invariable
of the executive, the in the officer legal principle in the laws
appointment is not rights, which are In the 3d vol. of of England, that every
revocable, and cannot protected by the laws his commentaries, p. right, when withheld,
be annulled. It has of this country. 23, Blackstone states must have a remedy,
conferred legal rights two cases in which a and every injury its
which cannot be To withhold his remedy is afforded by proper redress.”
resumed. commission, mere operation of law.
therefore, is an act The government
The discretion of deemed by the court “In all other of the United States
the executive is to be not warranted by law, cases,” he says, “it is has been emphatically
exercised until the but violative of a a general and termed a government
appointment has been vested legal right. indisputable rule, that of laws, and not of
made. But having where there is a legal men. It will certainly
once made the This brings us to right, there is also a cease to deserve this
appointment, his the second inquiry; legal remedy by suit high appellation, if
power over the office which is, or action at law, the laws furnish no
is terminated in all whenever that right is remedy for the
cases, where, by law, invaded.” violation of a vested
2dly. If he has a
the officer is not legal right.
right, and that right
removable by him.
has been violated, do And afterwards,
The right to the office If this obloquy is
the laws of this p. 109, of the same
is then in the person to be cast on the
country afford him a vol. he says, “I am
appointed, and he has jurisprudence of our
remedy? next to consider such
the absolute, country, it must arise
injuries as are
unconditional, power from the peculiar
**17 *163 The cognizable by the
of accepting or character of the case.
very essence of civil courts of the common
rejecting it.
liberty certainly law. And herein I
consists in the right of shall for the present It behoves us
Mr. Marbury, only remark, that all then to enquire
every individual to
then, since his

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whether there be in its security to the person **18 By the act act of the legislature
composition any appointed to fill it, for concerning invalids, confers so
ingredient which shall five years. It is not passed in June, 1794, extraordinary a
exempt it from legal then on account of the vol. 3. p. 112, the privilege, nor can it
investigation, or worthlessness of the secretary at war is derive countenance
exclude the injured thing pursued, that the ordered to place on from the doctrines of
party from legal injured party can be the pension list, all the common law.
redress. In pursuing alleged to be without persons whose names After stating that
this inquiry the first remedy. are contained in a personal injury from
question which report previously the king to a subject is
presents itself, is, Is it in the nature made by him to presumed to be
whether this can be of the transaction? Is congress. If he should impossible,
arranged *164 with the act of delivering refuse to do so, would Blackstone, vol. 3. p.
that class of cases or withholding a the wounded veteran 255, says, “ but
which come under the commission to be be without remedy? Is injuries to the rights
description of considered as a mere it to be contended that of property can
damnum absque political act, where the law in scarcely be committed
injuria —a loss belonging to the precise terms, directs by the crown without
without an injury. executive department the performance of an the intervention of its
alone, for the act, in which an officers; for whom,
This description performance of individual is the law, in matters of
of cases never has which, entire interested, the law is right, entertains no
been considered, and confidence is placed incapable of securing respect or delicacy;
it is believed never by our constitution in obedience to its but furnishes various
can be considered, as the supreme mandate? Is it on methods of detecting
comprehending executive; and for any account of the the errors and
offices of trust, of misconduct respecting character of the misconduct of those
honor or of profit. which, the injured person against whom agents, by whom the
The office of justice individual has no the complaint is king has been
of peace in the district remedy. made? Is it to be deceived and induced
of Columbia is such contended that the to do a temporary
an office; it is heads of departments injustice.”
That there may
therefore worthy of are not amenable to
be such cases is not to
the attention and the laws of their By the act passed
be questioned; but
guardianship of the country? in 1796, authorizing
that every act of duty,
laws. It has received to be performed in the sale of the lands
that attention and any of the great Whatever the above the mouth of
guardianship. It has departments of practice on particular Kentucky river
been created by government, occasions may be, the (vol.3d. p. 299) the
special act of constitutes such a theory of this purchaser, on paying
congress, and has case, is not to be principle will his purchase money,
been secured, so far admitted. certainly never be becomes completely
as the laws can give maintained.*165 No entitled to the

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property purchased; If some acts be and whatever opinion that officer other
and on producing to examinable, and may be entertained of duties; when he is
the secretary of state, others not, there must the manner in which directed peremptorily
the receipt of the be some rule of law to executive discretion to perform certain
treasurer upon a guide the court in the may be used, still acts; when the rights
certificate required by exercise of its there exists, and can of individuals are
the law, the president jurisdiction. exist, no power to dependent on the
of the United States is control that performance of those
authorized to grant In some instances discretion. The acts; he is so far the
him a patent. It is there may be subjects are political. officer of the law; is
further enacted that difficulty in applying They respect the amenable to the laws
all patents shall be the rule to particular nation, not individual for his conduct; and
countersigned by the cases; but there rights, and being cannot at his
secretary of state, and cannot, it is believed, entrusted to the discretion sport away
recorded in his office. be much difficulty in executive, the the vested rights of
If the secretary of laying down the rule. decision of the others.
state should choose to executive is
withhold this patent; conclusive. The The conclusion
By the
or the patent being application of this from this reasoning is,
constitution of the
lost, should refuse a remark will be that where the heads
United States, the
copy of it; can it be perceived by of departments are the
President is invested
imagined that the law adverting to the act of political or
with certain important
furnishes to the congress for confidential agents of
political powers, in
injured person no establishing the the executive, merely
the *166 exercise of
remedy? department of foreign to execute the will of
which he is to use his
affairs. This officer, as the President, or
own discretion, and is
It is not believed his duties were rather to act in cases
accountable only to
that any person prescribed by that act, in which the
his country in his
whatever would is to conform executive possesses a
political character,
attempt to maintain precisely to the will of constitutional or legal
and to his own
such a proposition. the President. He is discretion, nothing
conscience. To aid
the mere organ by can be more perfectly
him in the
whom that will is clear than that their
It follows then performance of these
communicated. The acts are only
that the question, duties, he is
acts of such an politically
whether the legality authorized to appoint
officer, as an officer, examinable. But
of an act of the head certain officers, who
can never be where a specific duty
of a department be act by his authority
examinable by the is assigned by law,
examinable in a court and in conformity
courts. and individual rights
of justice or not, must with his orders.
always depend on the depend upon the
nature of that act. **19 But when performance of that
In such cases,
the legislature duty, it seems equally
their acts are his acts;
proceeds to impose on clear that the

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individual who consequently if the conceives that, by justice *168 of peace,


considers himself officer is by law not virtue of his for the county of
injured, has a right to removable at the will appointment, he has a Washington in the
resort to the laws of of the President; the legal right, either to district of Columbia;
his country for a rights he has acquired the commission which and that the seal of
remedy. are protected by the has been made out for the United States,
law, and are not him, or to a copy of affixed thereto by the
If this be the rule, resumable by the that commission, it is secretary of state, is
let us enquire how it President. They equally a question conclusive testimony
applies to the case cannot be examinable in a court, of the verity of the
under the extinguished by and the decision of signature, and of the
consideration of the executive authority, the court upon it must completion of the
court. and he has the depend on the opinion appointment; and that
privilege of asserting entertained of his the appointment
them in like manner appointment. conferred on him a
*167 The power
as if they had been legal right to the
of nominating to the
derived from any **20 That office for the space of
senate, and the power
other source. question has been five years.
of appointing the
person nominated, are discussed, and the
political powers, to be The question opinion is, that the 2dly. That,
exercised by the whether a right has latest point of time having this legal title
President according to vested or not, is, in its which can be taken as to the office, he has a
his own discretion. nature, judicial, and that at which the consequent right to
When he has made an must be tried by the appointment was the commission; a
appointment, he has judicial authority. If, complete, and refusal to deliver
exercised his whole for example, Mr. evidenced, was when, which, is a plain
power, and his Marbury had taken after the signature of violation of that right,
discretion has been the oaths of a the president, the seal for which the laws of
completely applied to magistrate, and of the United States his country afford him
the case. If, by law, proceeded to act as was affixed to the a remedy.
the officer be one; in consequence commission.
removable at the will of which a suit had It remains to be
of the President, then been instituted against It is then the inquired whether,
a new appointment him, in which his opinion of the court,
may be immediately defense had depended
3dly. He is
made, and the rights on his being a
1st. That by entitled to the remedy
of the officer are magistrate; the
signing the for which he applies.
terminated. But as a validity of his
commission of Mr. This depends on,
fact which has existed appointment must
Marbury, the
cannot be made never have been determined
president of the 1st. The nature of
to have existed, the by judicial authority.
United States the writ applied for,
appointment cannot appointed him a and,
be annihilated; and So, if he

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be used. which show how far be one to whom, on


2dly. The power the practice has legal principles, such
of this court. “Whenever,” says conformed to the writ may be directed;
that very able judge, general doctrines that and the person
“there is a right to have been just quoted. applying for it must
1st. The nature of
execute an office, be without any other
the writ.
perform a service, or This writ, if specific and legal
exercise a franchise awarded, would be remedy.
Blackstone, in the
(more especially if it directed to an officer
3d volume of his
be in a matter of of government, and its 1st. With respect
commentaries, page
public concern, or mandate to him would to the officer to whom
110, defines a
attended with profit) be, to use the words it would be directed.
mandamus to be, “a
and a person is kept of Blackstone, “to do The intimate political
command issuing in
out of possession, or a particular thing relation, subsisting
the king's name from
dispossessed of such therein specified, between the president
the court of king's
right, and *169 has no which appertains to of the United States
bench, and directed to
other specific legal his office and duty and the heads of
any person,
remedy, this court and which the court departments,
corporation, or
ought to assist by has previously necessarily renders
inferior court of
mandamus, upon determined, or at least any legal
judicature within the
reasons of justice, as supposes, to be investigation of the
king's dominions,
the writ expresses, consonant to right and acts of one of those
requiring them to do
and upon reasons of justice.” Or, in the high officers
some particular thing
public policy, to words of Lord peculiarly irksome, as
therein specified,
preserve peace, order Mansfield, the well as delicate; and
which appertains to
and good applicant, in this case, excites some
their office and duty,
government.” In the has a right to execute hesitation with respect
and which the court of
same case he says, an office of public to the propriety of
king's bench has
“this writ ought to be concern, and is kept entering into such
previously
used upon all out of possession of investigation.
determined, or at least
occasions where the that right. Impressions are often
supposes, to be
law has established no received without
consonant to right and
specific remedy, and **21 These much reflection or
justice.”
where in justice and circumstances examination, and it is
good government certainly concur in not wonderful that in
Lord Mansfield,
there ought to be this case. such a case as this, the
in 3d Burrows 1266,
one.” assertion, by an
in the case of the
individual, of his legal
King v. Baker, et al. Still, to render
In addition to the claims in a court of
states with much the mandamus a
authorities now justice; to which
precision and proper remedy, the
particularly cited, claims it is the duty of
explicitness the cases officer to whom it is
many others were that court to attend;
in which this writ may to be directed, must
relied on at the bar, should at first view be

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considered *170 by law, is upon record, the law. How then can individuals, in the
some, as an attempt to and to a copy of his office exempt him performance of which
intrude into the which the law gives a from this particular he is not placed under
cabinet, and to right, on the payment mode of deciding on the particular
intermeddle with the of ten cents; if it be no the legality of his direction of the
prerogatives of the intermeddling with a conduct, if the case be President, and the
executive. subject, over which such a case as would, performance of
the executive can be were any other which, the President
It is scarcely considered as having individual the party cannot lawfully
necessary for the exercised any control; complained of, forbid, and therefore
court to disclaim all what is there in the authorize the process? is never presumed to
pretensions to such a exalted station of the have forbidden; as for
jurisdiction. An officer, which shall It is not by the example, to record a
extravagance, so bar a citizen from office of the person to commission, or a
absurd and excessive, asserting, in a court of whom the writ is patent for land, which
could not have been justice, his legal directed, but the has received all the
entertained for a rights, or shall forbid nature of the thing to legal solemnities; or
moment. The a court to listen to the be done that the to give a copy of such
province of the court claim; or to issue a propriety or record; in such cases,
is, solely, to decide on mandamus, directing impropriety of issuing it is not perceived on
the rights of the performance of a a mandamus, is to be what ground the
individuals, not to duty, not depending determined. Where courts of the country
enquire how the on executive the head of a are further excused
executive, or discretion, but on department acts in a from the duty of
executive officers, particular acts of case, in which giving judgment, that
perform duties in congress and the executive discretion is right be done to an
which they have a general principles of to be exercised; in injured individual,
discretion. Questions, law? which he is the mere than if the same
in their nature organ of executive services were to be
political, or which If one of the will; it is *171 again performed by a
are, by the heads of departments repeated, that any person not the head of
constitution and laws, commits any illegal application to a court a department.
submitted to the act, under color of his to control, in any
executive, can never office, by which an respect, his conduct, This opinion
be made in this court. individual sustains an would be rejected seems not now, for
injury, it cannot be without hesitation. the first time, to be
But, if this be not pretended that his taken up in this
such a question; if so office alone exempts **22 But where country.
far from being an him from being sued he is the head of a
intrusion into the in the ordinary mode good department is It must be well
secrets of the cabinet, of proceeding, and directed by law to do recollected that in
it respects a paper, being compelled to a certain act affecting 1792, an act passed,
which, according to obey the judgment of the absolute rights of directing the secretary

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at war to place on the officer of the United order to place


pension list such That this question States, the most themselves on the
disabled officers and might be properly proper which could be pension list.
soldiers as should be settled, congress selected for the
reported to him, by passed an act in purpose. The doctrine,
the circuit courts, February, 1793, therefore, now
which act, so far as making it the duty of When the subject advanced, is by no
the duty was imposed the secretary of war, was brought before means a novel one.
on the courts, was in conjunction with the court the decision
deemed the attorney general, was, not that a It is true that the
unconstitutional; but to take such measures, mandamus would not mandamus, now
some of the judges, as might be necessary lie to the head of a moved for, is not for
thinking that the law to obtain an department, directing the performance of an
might be executed by adjudication of the him to perform an act, act expressly enjoined
them in the character supreme court of the enjoined by law, in by statute.
of commissioners, United *172 States on the performance of
proceeded to act and the validity of any which an individual
It is to deliver a
to report in that such rights, claimed had a vested interest;
commission; on
character. under the act but that a mandamus
which subject the acts
aforesaid. ought not to issue in
of Congress are silent.
This law being that case—the
This difference is not
deemed After the passage decision necessarily
considered as
unconstitutional at the of this act, a to be made if the
affecting the case. It
circuits, was repealed, mandamus was report of the
has already been
and a different system moved for, to be commissioners did
stated that the
was established; but directed to the not confer on the
applicant has, to that
the question whether secretary at war, applicant a legal right.
commission, a vested
those persons, who commanding him to legal right, of which
had been reported by place on the pension **23 The the executive cannot
the judges, as list, a person stating judgment in that case, deprive him. He has
commissioners, were himself to be on the is understood to have been appointed to an
entitled, in report of the judges. decided the merits of office, from which he
consequence of that all claims of that is not removable, at
report, to be placed on description; and the
There is, the will of the
the pension list, was a persons on the report
therefore, much executive; and being
legal question, of the commissioners
reason to believe, that so *173 appointed, he
properly determinable found it necessary to
this mode of trying has a right to the
in the courts, although pursue the mode
the legal right of the commission which the
the act of placing such prescribed by the law
complainant, was secretary has received
persons on the list subsequent to that
deemed by the head from the president for
was to be performed which had been
of a department, and his use. The act of
by the head of a deemed
by the highest law congress does not
department. unconstitutional, in

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indeed order the commission, or a assigning the duties


secretary of state to copy of it from the which its words It has been
send it to him, but it is record; and it only purport to confer and insisted, at the bar,
placed in his hands remains to be assign. that as the original
for the person entitled inquired, grant of jurisdiction,
to it; and cannot be The constitution to the supreme and
more lawfully Whether it can vests the whole inferior courts, is
withheld by him, than issue from this court. judicial power of the general, and the
by any other person. United States in one clause, assigning
The act to supreme court, and original jurisdiction to
It was at first establish the judicial such inferior courts as the supreme court,
doubted whether the courts of the United congress shall, from contains no negative
action of detinue was States authorizes the time to time, ordain or restrictive words;
not a specific legal supreme court “to and establish. This the power remains to
remedy for the issue writs of power is expressly the legislature, to
commission which mandamus, in cases extended to all cases assign original
has been withheld warranted by the arising under the laws jurisdiction to that
from Mr. Marbury; in principles and usages of the United States; court in other cases
which case a of law, to any courts and consequently, in than those specified in
mandamus would be appointed, or persons some form, may be the article which has
improper. But this holding office, under exercised over the been recited; provided
doubt has yielded to the authority of the present *174 case; those cases belong to
the consideration that United States.” because the right the judicial power of
the judgment in claimed is given by a the United States.
detinue is for the law of the United
The secretary of
thing itself, or its States. If it had been
state, being a person
value. The value of a intended to leave it in
holding an office
public office not to be **24 In the the discretion of the
under the authority of
sold, is incapable of distribution of this legislature to
the United States, is
being ascertained; and power it is declared apportion the judicial
precisely within the
the applicant has a that “the supreme power between the
letter of the
right to the office court shall have supreme and inferior
description; and if this
itself, or to nothing. original jurisdiction in courts according to
court is not authorized
He will obtain the all cases affecting the will of that body,
to issue a writ of
office by obtaining ambassadors, other it would certainly
mandamus to such an
the commission, or a public ministers and have been useless to
officer, it must be
copy of it from the consuls, and those in have proceeded
because the law is
record. which a state shall be further than to have
unconstitutional, and
therefore absolutely a party. In all other defined the judicial
This, then, is a incapable of cases, the supreme power, and the
plain case for a conferring the court shall have tribunals in which it
mandamus, either to authority, and appellate should be vested. The
deliver the jurisdiction.” subsequent part of the

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section is mere the words require it. them, as to define the legislature that a
surplusage, is entirely jurisdiction of the mandamus should be
without meaning, if *175 If the supreme court by used for that purpose,
such is to be the solicitude of the declaring the cases in that will must be
construction. If convention, which it shall take obeyed. This is true,
congress remains at respecting our peace original jurisdiction, yet the jurisdiction
liberty to give this with foreign powers, and that in others it must be appellate, not
court appellate induced a provision shall take appellate original.
jurisdiction, where the that the supreme court jurisdiction; the plain
constitution has should take original import of the words It is the essential
declared their jurisdiction in cases seems to be, that in criterion of appellate
jurisdiction shall be which might be one class of cases its jurisdiction, that it
original; and original supposed to affect jurisdiction is revises and corrects
jurisdiction where the them; yet the clause original, and not the proceedings in a
constitution has would have proceeded appellate; in the other cause already
declared it shall be no further than to it is appellate, and not instituted, and does
appellate; the provide for such original. If any other not create that cause.
distribution of cases, if no further construction would Although, therefore, a
jurisdiction, made in restriction on the render the clause mandamus may be
the constitution, is powers of congress inoperative, that is an directed to courts, yet
form without had been intended. additional reason for to issue such a writ to
substance. That they should have rejecting such other an officer for the
appellate jurisdiction construction, and for delivery of a paper, is
Affirmative in all other cases, with adhering to their in effect the same as
words are often, in such exceptions as obvious meaning. to sustain an original
their operation, congress might make, action for that paper,
negative of other is no restriction; To enable this and therefore seems
objects than those unless the words be court then to issue a not to belong to *176
affirmed; and in this deemed exclusive of mandamus, it must be appellate, but to
case, a negative or original jurisdiction. shewn to be an original jurisdiction.
exclusive sense must exercise of appellate Neither is it necessary
be given to them or When an jurisdiction, or to be in such a case as this,
they have no instrument organizing necessary to enable to enable the court to
operation at all. fundamentally a them to exercise exercise its appellate
judicial system, appellate jurisdiction. jurisdiction.
It cannot be divides it into one
presumed that any supreme, and so many **25 It has been The authority,
clause in the inferior courts as the stated at the bar that therefore, given to the
constitution is legislature may ordain the appellate supreme court, by the
intended to be without and establish; then jurisdiction may be act establishing the
effect; and therefore enumerates its exercised in a variety judicial courts of the
such a construction is powers, and proceeds of forms, and that if it United States, to issue
inadmissible, unless so far to distribute be the will of the writs of mandamus to

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public officers, to be frequently those intended to be contrary to the


appears not to be repeated. The restrained? The constitution is not
warranted by the principles, therefore, distinction, between a law: if the latter part
constitution; and it so established, are government with be true, then written
becomes necessary to deemed fundamental. limited and unlimited constitutions are
enquire whether a And as the authority, powers, is abolished, absurd attempts, on
jurisdiction, so from which they if those limits do not the part of the people,
conferred, can be proceed, is supreme, confine the persons to limit a power, in its
exercised. and can seldom act, on whom they are own nature
they are designed to imposed, and if acts illimitable.
The question, be permanent. prohibited*177 and
whether an act, acts allowed, are of Certainly all
repugnant to the This original and equal obligation. It is those who have
constitution, can supreme will a proposition too framed written
become the law of the organizes the plain to be contested, constitutions
land, is a question government, and that the constitution contemplate them as
deeply interesting to assigns, to different controls any forming the
the United States; but, departments, their legislative act fundamental and
happily, not of an respective powers. It repugnant to it; or, paramount law of the
intricacy proportioned may either stop here; that the legislature nation, and
to its interest. It seems or establish certain may alter the consequently the
only necessary to limits not to be constitution by an theory of every such
recognize certain transcended by those ordinary act. government must be,
principles, supposed departments. that an act of the
to have been long and Between these legislature, repugnant
well established, to The government alternatives there is to the constitution, is
decide it. of the United States is no middle ground. void.
of the latter The constitution is
That the people description. The either a superior, This theory is
have an original right powers of the paramount law, essentially attached to
to establish, for their legislature are unchangeable by a written constitution,
future government, defined, and limited; ordinary means, or it and is consequently to
such principles as, in and that those limits is on a level with be considered, by this
their opinion, shall may not be mistaken, ordinary legislative court, as one of the
most conduce to their or forgotten, the acts, and like other fundamental
own happiness, is the constitution is written. acts, is alterable when principles of our
basis, on which the To what purpose are the legislature shall society. It is not
whole American powers limited, and to please to alter it. therefore to be lost
fabric has been what purpose is that sight of in the further
erected. The exercise limitation committed **26 If the consideration of this
of this original right is to writing, if these former part of the subject.
a very great exertion; limits may, at any alternative be true,
nor can it, nor ought it time, be passed by then a legislative act

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If an act of the particular case, so that This doctrine much reverence, for
legislature, repugnant the court must either would subvert the rejecting the
to the constitution, is decide that case very foundation of all construction. But the
void, does it, conformably to the written constitutions. peculiar expressions
notwithstanding its law, disregarding the It would declare that of the constitution of
invalidity, bind the constitution; or an act, which, the United States
courts, and oblige conformably to the according to the furnish additional
them to give it effect? constitution, principles and theory arguments in favour
Or, in other words, disregarding the law; of our government, is of its rejection.
though it be not law, the court must entirely void; is yet,
does it constitute a determine which of in practice, **27 The judicial
rule as operative as if these conflicting rules completely obligatory. power of the United
it was a law? This governs the case. This It would declare, that States is extended to
would be to is of the very essence if the legislature shall all cases arising under
overthrow in fact of judicial duty. do what is expressly the constitution.
what was established forbidden, such act,
in theory; and would If then the courts notwithstanding the
*179 Could it be
seem, at first view, an are to regard the express prohibition, is
the intention of those
absurdity too gross to constitution; and the in reality effectual. It
who gave this power,
be insisted on. It shall, constitution is would be giving to the
to say that, in using it,
however, receive a superior to any legislature a practical
the constitution
more attentive ordinary act of the and real omnipotence,
should not be looked
consideration. legislature; the with the same breath
into? That a case
constitution, and not which professes to
arising under the
It is emphatically such ordinary act, restrict their powers
constitution should be
the province and duty must govern the case within narrow limits.
decided without
of the judicial to which they both It is prescribing
examining the
department to say apply. limits, and declaring
instrument under
what the law is. Those that those limits may
which it arises?
who apply the rule to be passed as pleasure.
Those then who
particular cases, must controvert the This is too
of necessity expound principle that the That it thus
extravagant to be
and interpret that rule. constitution is to be reduces to nothing
maintained.
If two laws conflict considered, in court, what we have deemed
with each other, the as a paramount law, the greatest
In some cases
courts must decide on are reduced to the improvement on
then, the constitution
the operation of each. necessity of political institutions—
must be looked into
maintaining that a written constitution
by the judges. And if
*178 So if a law courts must close —would of itself be
they can open it at all,
be in opposition to the their eyes on the sufficient, in America,
what part of it are
constitution; if both constitution, and see where written
they forbidden to
the law and the only the law. constitutions have
read, or to obey?
constitution apply to a been viewed with so

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says the constitution, judges to take an oath duties agreeably to


There are many “shall be convicted of to support it? This the constitution of the
other parts of the treason unless on the oath certainly applies, United States, if that
constitution which testimony of two in an especial manner, constitution forms no
serve to illustrate this witnesses to the same to their conduct in rule for his
subject. overt act, or on their official government? if it is
confession in open character. How closed upon him, and
court.” immoral to impose it cannot be inspected
It is declared that
on them, if they were by him?
“no tax or duty shall
Here the to be used as the
be laid on articles
language of the instruments, and the **28 If such be
exported from any
constitution is knowing instruments, the real state of
state.” Suppose a duty
addressed especially for violating what things, this is worse
on the export of
to the courts. It they swear to than solemn mockery.
cotton, of tobacco, or
prescribes, directly support? To prescribe, or to
of flour; and a suit
instituted to recover for them, a rule of take this oath,
it. Ought judgment to evidence not to be The oath of becomes equally a
be rendered in such a departed from. If the office, too, imposed crime.
case? ought the legislature should by the legislature, is
judges to close their change that rule, and completely It is also not
eyes on the declare one witness, demonstrative of the entirely unworthy of
constitution, and only or a confession out of legislative opinion on observation, that in
see the law. court, sufficient for this subject. It is in declaring what shall
conviction, must the these words, “I do be the supreme law of
constitutional solemnly swear that I the land, the
The constitution
principle yield to the will administer justice constitution itself is
declares that “no bill
legislative act? without respect to first mentioned; and
of attainder or ex post
persons, and do equal not the laws of the
facto law shall be
From these, and right to the poor and United States
passed.”
many other selections to the rich; and that I generally, but those
which might be made, will faithfully and only which shall be
If, however, such
it is apparent, that the impartially discharge made in pursuance of
a bill should be
framers of the all the duties the constitution, have
passed and a person
constitution*180 incumbent on me as that rank.
should be prosecuted
contemplated that according to the best
under it; must the
instrument, as a rule of my abilities and
court condemn to Thus, the
for the government of understanding,
death those victims particular phraseology
courts, as well as of agreeably to the
whom the constitution of the constitution of
the legislature. constitution, and laws
endeavors to the United States
of the United States.”
preserve? confirms and
Why otherwise strengthens the
does it direct the Why does a judge principle, supposed to
“No person,”
swear to discharge his

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be essential to all
written constitutions,
that a law repugnant
to the constitution is
void; and that courts,
as well as other
departments, are
bound by that
instrument.

The rule must be


discharged.

U.S.Dist.Col.,1803.
Marbury v. Madison
1 Cranch 137, 5 U.S.
137, 1803 WL 893
(U.S.Dist.Col.), 2
L.Ed. 60

END OF
DOCUMENT

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

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