Marbury v. Madison,
5 U.S. 137 (1803)

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U.S. Supreme Court

Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803)

Marbury v. Madison

5 U.S. (1 Cranch) 137


The clerks of the Department of State of the United States may be called upon to give evidence of transactions in the Department which are not of a confidential character.

The Secretary of State cannot be called upon as a witness to state transactions of a confidential nature which may have occurred in his Department. But he may be called upon to give testimony of circumstances which were not of that character.

Clerks in the Department of State were directed to be sworn, subject to objections to questions upon confidential matters.

Some point of time must be taken when the power of the Executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And the power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission.

If the act of livery be necessary to give validity to the commission of an officer, it has been delivered when executed, and given to the Secretary of State for the purpose of being sealed, recorded, and transmitted to the party.

In cases of commissions to public officers, 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 inserted into the book or not, they are recorded.

When the heads of the departments of the Government are the political or confidential officers of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.

The President of the United States, by signing the commission, appointed Mr. Marbury a justice of the peace for the County of Washington, in the District of Columbia, and the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and the appointment conferred on him a legal right to the office for the space of five years. Having this legal right to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right for which the laws of the country afford him a remedy.

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.

At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel,

Page 5 U. S. 138

severally moved the court for a rule to James Madison, Secretary of State of the United States, to show cause why a mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as justices of the peace in the District of Columbia. This motion was supported by affidavits of the following facts: that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late President of the United States, nominated the applicants to the Senate for their advice and consent to be appointed justices of the peace of the District of Columbia; that the Senate advised and consented to the appointments; that commissions in due form were signed by the said President appointing them justices, &c., and that the seal of the United States was in due form affixed to the said commissions by the Secretary of State; that the applicants have requested Mr. Madison to deliver them their said commissions, who has not complied with that request; and that 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,

Page 5 U. S. 139

Mr. 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.

Mr. 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. 2. Whether it will lie to a Secretary of State, in any case whatever. 3. Whether, in the present case, the Court may award a mandamus to James Madison, Secretary of State.

Page 5 U. S. 153

Primary Holding

Congress does not have the power to pass laws that override the Constitution, such as by expanding the scope of the Supreme Court’s original jurisdiction.


Thomas Jefferson defeated John Adams in the presidential election of 1800, which was decided on February 17, 1801. Before Jefferson took office on March 4, Adams and Congress passed the Judiciary Act of 1801, which created new district courts, expanded the number of circuit courts, added more judges to each circuit, gave the President more control over appointing federal judges, and reduced the number of Supreme Court Justices from six to five. This law essentially was an attempt by Adams and his political party to frustrate the incoming opposition, since he used his new power to appoint 16 new circuit judges and 42 new justices of the peace, a group known as the "Midnight Judges." The incoming appointees were approved by the Adams Senate, but their appointments were not valid until each of their commissions was delivered by John Marshall in his capacity as acting Secretary of State.

Justices of the peace were entitled to serve a term of five years. One of the new appointees was William Marbury, a long-standing supporter of Adams who received the position of justice of the peace in the District of Columbia. As was the case with a handful of other new appointees, Marshall failed to deliver Marbury's commission before Adams left office and was succeeded by Jefferson. With the change in administration, Marshall also left his position as Secretary of State and was succeeded by James Madison. However, Jefferson ordered acting Secretary of State Levi Lincoln to cease delivering the commissions, thus preventing the new appointees from taking their positions. He assumed that they could be considered void, since they were not delivered on time.

The machinations did not end there, moreover. The Jefferson Congress proceeded to replace the Judiciary Act of 1801 with a new Judiciary Act of 1802 that essentially restored the initial Judiciary Act of 1789. It also sought to delay the Supreme Court in hearing the inevitable challenge to the constitutionality of Jefferson's maneuver by canceling its term in June 1802. Marbury then filed a writ of mandamus with the Supreme Court, asking it to order the executive branch to deliver his commission.



  • John Marshall (Author)
  • William Paterson
  • Samuel Chase
  • Bushrod Washington

This was a rare case that arrived at the Supreme Court as the court of original jurisdiction rather than as an appeal from a lower court. Marshall and the other Justices needed to determine not only whether Marbury had a right to his commission but whether he had a remedy that could be enforced through the courts. Marshall found that a remedy could be implied because no right could exist without a remedy. Also, delivering the commission was a purely ministerial function of the executive branch. By ordering it to comply with its ministerial duties, the Court would not violate the separation of powers by encroaching on another branch's discretion.

Marshall also ruled that a writ of mandamus was the proper way to seek a remedy but grappled with the question of whether the Supreme Court could issue it. He identified a conflict between the Judiciary Act of 1789 and the Constitution, each of which provided different parameters for the Court's original jurisdiction. Marshall rejected Marbury's argument that the Constitution merely served as a foundation on which Congress could build with later laws, finding that the Constitution trumped any laws and that Congress did not have the power to modify the Constitution through regular legislation. In explaining why the Constitution was supreme to all laws, he noted that the Supremacy Clause places the Constitution before the laws and that judges must take an oath to uphold the Constitution

As a result, Marshall found that the section of the Judiciary Act of 1789 that purported to give the Supreme Court original jurisdiction over these matters was invalid because it violated the Constitution.

[The Supreme Court consisted of only six Justices at this time, so Marshall's four-Justice opinion was unanimous because two of the Justices recused themselves.]


  • William Cushing (Author)
  • Alfred Moore

Case Commentary

The Supreme Court uses its own understanding of the Constitution in reviewing the legitimacy of acts by other branches of the government, even though this power is not apparent from the plain text of the document. This case established the legitimacy of judicial review as well as the primacy of the Constitution over any other source of law. Many legal scholars of both Marshall's period and the contemporary era found the opinion's logic strained, basing a sweeping conclusion on relatively little textual support. Still, the concept of judicial review has long been accepted without challenge.

Unfortunately for Marbury, he never received his appointment as a justice of the peace in the District of Columbia, merely because the commission was not delivered before Adams left office.

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