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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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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