The Supreme Court issued its opinion on February 24, Search this Guide Search. Marbury v. Supreme Court decision Marbury v. Madison established the principle of judicial review. This guide provides access to digital materials at the Library of Congress, external websites, and a print bibliography.
Introduction The U. Reports: Marbury v. To render a mandamus a proper remedy, the officer to whom it is directed must be one to whom, on legal principles, such writ must be directed, and the person applying for it must be without any other specific remedy.
Where a commission to a public officer has been made out, signed, and sealed, and is withheld from the person entitled to it, an action of detinue for the commission against the Secretary of State who refuses to deliver it is not the proper remedy, as the judgment in detinue is for the thing itself, or its value. The value of a public office, not to be sold, is incapable of being ascertained.
It is a plain case for a mandamus, either to deliver the commission or a copy of it from the record. To enable the Court to issue a mandamus to compel the delivery of the commission of a public office by the Secretary of State, it must be shown that it is an exercise of appellate jurisdiction, or that it be necessary to enable them to exercise appellate jurisdiction.
It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create the cause. The authority given to the Supreme Court by the act establishing the judicial system of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution.
It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule.
If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. This motion was supported by affidavits of the following facts: that notice of this motion had been given to Mr. Madison; that Mr. Madison to deliver them their said commissions, who has not complied with that request; and that their said commissions are withheld from them; that the applicants have made application to Mr.
Madison as Secretary of State of the United States at his office, for information whether the commissions were signed and sealed as aforesaid; that explicit and satisfactory information has not been given in answer to that inquiry, either by the Secretary of State or any officer in the Department of State; that application has been made to the secretary of the Senate for a certificate of the nomination of the applicants, and of the advice and consent of the Senate, who has declined giving such a certificate; whereupon a rule was made to show cause on the fourth day of this term.
This rule having been duly served,. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court and were required to give evidence, objected to be sworn, alleging that they were clerks in the Department of State, and not bound to disclose any facts relating to the business or transactions of the office.
The court ordered the witnesses to be sworn, and their answers taken in writing, but informed them that, when the questions were asked, they might state their objections to answering each particular question, if they had any. Lincoln, who had been the acting Secretary of State, when the circumstances stated in the affidavits occurred, was called upon to give testimony.
He objected to answering. The questions were put in writing. The court said there was nothing confidential required to be disclosed. If there had been, he was not obliged to answer it, and if he thought anything was communicated to him confidentially, he was not bound to disclose, nor was he obliged to state anything which would criminate himself. The questions argued by the counsel for the relators were, 1. Whether the Supreme Court can award the writ of mandamus in any case.
Whether it will lie to a Secretary of State, in any case whatever. At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case requiring the Secretary of State to show cause why a mandamus. No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it require a complete exposition of the principles on which the opinion to be given by the Court is founded.
These principles have been, on the side of the applicant, very ably argued at the bar. In rendering the opinion of the Court, there will be some departure in form, though not in substance, from the points stated in that argument. In the order in which the Court has viewed this subject, the following questions have been considered and decided.
If he has a right, and that right has been violated, do the laws of his country afford him a remedy? His right originates in an act of Congress passed in February, , concerning the District of Columbia. It appears from the affidavits that, in compliance with this law, a commission for William Marbury as a justice of peace for the County of Washington was signed by John Adams, then President of the United States, after which the seal of the United States was affixed to it, but the commission has never reached the person for whom it was made out.
In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property. These are the clauses of the Constitution and laws of the United States which affect this part of the case.
They seem to contemplate three distinct operations:. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate. The commission.
To grant a commission to a person appointed might perhaps be deemed a duty enjoined by the Constitution. The acts of appointing to office and commissioning the person appointed can scarcely be considered as one and the same, since the power to perform them is given in two separate and distinct sections of the Constitution.
The distinction between the appointment and the commission will be rendered more apparent by adverting to that provision in the second section of the second article of the Constitution which authorises Congress. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which perhaps could not legally be refused.
Although that clause of the Constitution which requires the President to commission all the officers of the United States may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases.
Of consequence, the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed remains the same as if in practice the President had commissioned officers appointed by an authority other than his own. It follows too from the existence of this distinction that, if an appointment was to be evidenced by any public act other than the commission, the performance of such public act would create the officer, and if he was not removable at the will of the President, would either give him a right to his commission or enable him to perform the duties without it.
These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration. This is an appointment made by the President, by and with the advice and consent of the Senate, and is evidenced by no act but the commission itself.
In such a case, therefore, the commission and the appointment seem inseparable, it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still, the commission is not necessarily the appointment; though conclusive evidence of it. The answer to this question seems an obvious one.
The appointment, being the sole act of the President, must be completely evidenced when it is shown that he has done everything to be performed by him. Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself, still it would be made when the last act to be done by the President was performed, or, at furthest, when the commission was complete. The last act to be done by the President is the signature of the commission.
He has then acted on the advice and consent of the Senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the Senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act, and, being the last act required from the person making it, necessarily excludes the idea of its being, so far as it respects the appointment, an inchoate and incomplete transaction.
And this power has been exercised when the last act required from the person possessing the power has been performed. This idea seems to have prevailed with the Legislature when the act passed converting the Department. By that act, it is enacted that the Secretary of State shall keep the seal of the United States,. The signature is a warrant for affixing the great seal to the commission, and the great seal is only to be affixed to an instrument which is complete. It attests, by an act supposed to be of public notoriety, the verity of the Presidential signature.
It is never to be affixed till the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made. The commission being signed, the subsequent duty of the Secretary of State is prescribed by law, and not to be guided by the will of the President. He is to affix the seal of the United States to the commission, and is to record it.
This is not a proceeding which may be varied if the judgment of the Executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued.
It is the duty of the Secretary of State to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose. If it should be supposed that the solemnity of affixing the seal is necessary not only to the validity of the commission, but even to the completion of an appointment, still, when the seal is affixed, the appointment is made, and.
No other solemnity is required by law; no other act is to be performed on the part of government. All that the Executive can do to invest the person with his office is done, and unless the appointment be then made, the Executive cannot make one without the cooperation of others.
After searching anxiously for the principles on which a contrary opinion may be supported, none has been found which appear of sufficient force to maintain the opposite doctrine. Such as the imagination of the Court could suggest have been very deliberately examined, and after allowing them all the weight which it appears possible to give them, they do not shake the opinion which has been formed.
In considering this question, it has been conjectured that the commission may have been assimilated to a deed to the validity of which delivery is essential. This idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the actual appointment -- a supposition by no means unquestionable. But, for the purpose of examining this objection fairly, let it be conceded that the principle claimed for its support is established.
The appointment being, under the Constitution, to be made by the President personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the President also.
It is not necessary that the livery should be made personally to the grantee of the office; it never is so made. The law would seem to contemplate that it should be made to the Secretary of State, since it directs the secretary to affix the seal to the commission after it shall have been signed by the President.
If then the act of livery be necessary to give validity to the commission, it has been delivered when executed and given to the Secretary for the purpose of being sealed, recorded, and transmitted to the party. But in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidences. A formal delivery to the person is not among them.
In cases of commissions, the sign manual of the President and the seal of the United States are those solemnities. This objection therefore does not touch the case. It has also occurred as possible, and barely possible, that the transmission of the commission and the acceptance thereof might be deemed necessary to complete the right of the plaintiff.
The transmission of the commission is a practice directed by convenience, but not by law. It cannot therefore be necessary to constitute the appointment, which must precede it and which is the mere act of the President. If the Executive required that every person appointed to an office should himself take means to procure his commission, the appointment would not be the less valid on that account.
The appointment is the sole act of the President; the transmission of the commission is the sole act of the officer to whom that duty is assigned, and may be accelerated or retarded by circumstances which can have no influence on the appointment. A commission is transmitted to a person already appointed, not to a person to be appointed or not, as the letter enclosing the commission should happen to get into the post office and reach him in safety, or to miscarry.
It may have some tendency to elucidate this point to inquire whether the possession of the original commission be indispensably necessary to authorize a person appointed to any office to perform the duties of that office. If it was necessary, then a loss of the commission would lose the office.
Not only negligence, but accident or fraud, fire or theft might deprive an individual of his office. In such a case, I presume it could not be doubted but that a copy from the record of the Office of the Secretary of State would be, to every intent and purpose, equal to the original.
The act of Congress has expressly made it so. To give that copy validity, it would not be necessary to prove that the original had been transmitted and afterwards lost. The copy would be complete evidence that the original had existed, and that the appointment had been made, but not that the original had been transmitted. If indeed it should appear that.
When all the requisites have been performed which authorize a recording officer to record any instrument whatever, and the order for that purpose has been given, the instrument is in law considered as recorded, although the manual labour of inserting it in a book kept for that purpose may not have been performed.
In the case of commissions, the law orders the Secretary of State to record them. When, therefore, they are signed and sealed, the order for their being recorded is given, and, whether inserted in the book or not, they are in law recorded.
A copy of this record is declared equal to the original, and the fees to be paid by a person requiring a copy are ascertained by law. Can a keeper of a public record erase therefrom a commission which has been recorded?
Or can he refuse a copy thereof to a person demanding it on the terms prescribed by law? Such a copy would, equally with the original, authorize the justice of peace to proceed in the performance of his duty, because it would, equally with the original, attest his appointment. If the transmission of a commission be not considered as necessary to give validity to an appointment, still less is its acceptance.
The appointment is the sole act of the President; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment.
As he may resign, so may he refuse to accept; but neither the one nor the other is capable of rendering the appointment a nonentity. That this is the understanding of the government is apparent from the whole tenor of its conduct. A commission bears date, and the salary of the officer commences from his appointment, not from the transmission or acceptance of his commission. When a person appointed to any office refuses to accept that office, the successor is nominated in the place of the person who.
It is therefore decidedly the opinion of the Court that, when a commission has been signed by the President, the appointment is made, and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State. Where an officer is removable at the will of the Executive, the circumstance which completes his appointment is of no concern, because the act is at any time revocable, and the commission may be arrested if still in the office.
But when the officer is not removable at the will of the Executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed.
The discretion of the Executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.
Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was appointed, and as the law creating the office gave the officer a right to hold for five years independent of the Executive, the appointment was not revocable, but vested in the officer legal rights which are protected by the laws of his country.
To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right. The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection.
In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.
In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law. And herein I shall for the present only remark that all possible injuries whatsoever that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals are, for that very reason, within the cognizance of the common law courts of justice, for it is a settled and invariable principle in the laws of England that every right, when withheld, must have a remedy, and every injury its proper redress.
The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case.
It behooves us, then, to inquire whether there be in its composition any ingredient which shall exempt from legal investigation or exclude the injured party from legal redress.
In pursuing this inquiry, the first question which presents itself is whether this can be arranged. This description of cases never has been considered, and, it is believed, never can be considered, as comprehending offices of trust, of honour or of profit. Madison Marbury v. Madison, arguably the most important case in Supreme Court history, was the first U. Supreme Court case to apply the principle of "judicial review" -- the power of federal courts to void acts of Congress in conflict with the Constitution.
Written in by Chief Justice John Marshall , the decision played a key role in making the Supreme Court a separate branch of government on par with Congress and the executive. The facts surrounding Marbury were complicated. In the election of , the newly organized Democratic-Republican party of Thomas Jefferson defeated the Federalist party of John Adams, creating an atmosphere of political panic for the lame duck Federalists.
In the final days of his presidency, Adams appointed a large number of justices of peace for the District of Columbia whose commissions were approved by the Senate, signed by the president, and affixed with the official seal of the government. The commissions were not delivered, however, and when President Jefferson assumed office March 5, , he ordered James Madison, his Secretary of State, not to deliver them. William Marbury, one of the appointees, then petitioned the Supreme Court for a writ of mandamus , or legal order, compelling Madison to show cause why he should not receive his commission.
In resolving the case, Chief Justice Marshall answered three questions. First, did Marbury have a right to the writ for which he petitioned?
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