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
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
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
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
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
Mr. Chief Justice MARSHALL delivered the opinion of the
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
Page 5 U. S. 154
should not issue directing him to deliver to William Marbury his
commission as a justice of the peace for the county of Washington,
in the District of Columbia.
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.
1. Has the applicant a right to the commission he demands?
2. If he has a right, and that right has been violated, do the
laws of his country afford him a remedy?
3. If they do afford him a remedy, is it a mandamus issuing from
The first object of inquiry is:
1. Has the applicant a right to the commission he demands?
His right originates in an act of Congress passed in February,
1801, concerning the District of Columbia.
After dividing the district into two counties, the eleventh
section of this law enacts,
"that there shall be appointed in and for each of the said
counties such number of discreet persons to be justices of the
peace as the President of the United States shall, from time to
time, think expedient, to continue in office for five years. "
Page 5 U. S. 155
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
The second section of the second article of the Constitution
"The President shall nominate, and, by and with the advice and
consent of the Senate, shall appoint ambassadors, other public
ministers and consuls, and all other officers of the United States,
whose appointments are not otherwise provided for."
The third section declares, that "He shall commission all the
officers of the United States."
An act of Congress directs the Secretary of State to keep the
seal of the United States,
"to make out and record, and affix the said seal to all civil
commissions to officers of the United States to be appointed by the
President, by and with the consent of the Senate, or by the
President alone; provided that the said seal shall not be affixed
to any commission before the same shall have been signed by the
President of the United States."
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:
1. The nomination. This is the sole act of the President, and is
2. 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.
Page 5 U. S. 156
3. The commission. To grant a commission to a person appointed
might perhaps be deemed a duty enjoined by the Constitution. "He
shall," says that instrument, "commission all the officers of the
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
"to vest by law the appointment of such inferior officers as
they think proper in the President alone, in the Courts of law, or
in the heads of departments;"
thus contemplating cases where the law may direct the President
to commission an officer appointed by the Courts or by the heads of
departments. 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.
Page 5 U. S. 157
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.
But at what stage does it amount to this conclusive
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
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
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 this 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. This idea seems
to have prevailed with the Legislature when the act passed
converting the Department
Page 5 U. S. 158
of Foreign Affairs into the Department of State. By that act, it
is enacted that the Secretary of State shall keep the seal of the
"and shall make out and record, and shall affix the said seal to
all civil commissions to officers of the United States, to be
appointed by the President: . . . provided that the said seal shall
not be affixed to any commission before the same shall have been
signed by the President of the United States, nor to any other
instrument or act without the special warrant of the President
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
Page 5 U. S. 159
the commission is valid. 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
Page 5 U. S. 160
of the validity of the instrument. 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
Page 5 U. S. 161
the original had been mislaid in the Office of State, that
circumstance would not affect the operation of the copy. 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
Page 5 U. S. 162
has declined to accept, and not in the place of the person who
had been previously in office and had created the original
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.
Mr. Marbury, then, since his commission was signed by the
President and sealed by the Secretary of State, was appointed, and
as the law creating the office gave the officer a right to hold for
five years independent of the Executive, the appointment was not
revocable, but vested in the officer legal rights which are
protected by the laws of his country.
To withhold the commission, therefore, is an act deemed by the
Court not warranted by law, but violative of a vested legal
This brings us to the second inquiry, which is:
2. If he has a right, and that right has been violated, do the
laws of his country afford him a remedy?
Page 5 U. S. 163
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
"In all other cases," he says,
"it is a general and indisputable rule that where there is a
legal right, there is also a legal remedy by suit or action at law
whenever that right is invaded."
And afterwards, page 109 of the same volume, he says,
"I am next to consider such injuries as are cognizable by the
Courts of common 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
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
Page 5 U. S. 164
with that class of cases which come under the description of
damnum absque injuria
-- a loss without an injury.
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. The office of justice of peace in
the District of Columbia is such an office; it is therefore worthy
of the attention and guardianship of the laws. It has received that
attention and guardianship. It has been created by special act of
Congress, and has been secured, so far as the laws can give
security to the person appointed to fill it, for five years. It is
not then on account of the worthlessness of the thing pursued that
the injured party can be alleged to be without remedy.
Is it in the nature of the transaction? Is the act of delivering
or withholding a commission to be considered as a mere political
act belonging to the Executive department alone, for the
performance of which entire confidence is placed by our
Constitution in the Supreme Executive, and for any misconduct
respecting which the injured individual has no remedy?
That there may be such cases is not to be questioned. but that
every act of duty to be performed in any of the great departments
of government constitutes such a case is not to be admitted.
By the act concerning invalids, passed in June, 1794, the
Secretary at War is ordered to place on the pension list all
persons whose names are contained in a report previously made by
him to Congress. If he should refuse to do so, would the wounded
veteran be without remedy? Is it to be contended that where the
law, in precise terms, directs the performance of an act in which
an individual is interested, the law is incapable of securing
obedience to its mandate? Is it on account of the character of the
person against whom the complaint is made? Is it to be contended
that the heads of departments are not amenable to the laws of their
Whatever the practice on particular occasions may be, the theory
of this principle will certainly never be maintained.
Page 5 U. S. 165
No act of the Legislature confers so extraordinary a privilege,
nor can it derive countenance from the doctrines of the common law.
After stating that personal injury from the King to a subject is
presumed to be impossible, Blackstone, Vol. III. p. 255, says,
"but injuries to the rights of property can scarcely be
committed by the Crown without the intervention of its officers,
for whom, the law, in matters of right, entertains no respect or
delicacy, but furnishes various methods of detecting the errors and
misconduct of those agents by whom the King has been deceived and
induced to do a temporary injustice."
By the act passed in 1796, authorizing the sale of the lands
above the mouth of Kentucky river, the purchaser, on paying his
purchase money, becomes completely entitled to the property
purchased, and, on producing to the Secretary of State the receipt
of the treasurer upon a certificate required by the law, the
President of the United States is authorized to grant him a patent.
It is further enacted that all patents shall be countersigned by
the Secretary of State, and recorded in his office. If the
Secretary of State should choose to withhold this patent, or, the
patent being lost, should refuse a copy of it, can it be imagined
that the law furnishes to the injured person no remedy?
It is not believed that any person whatever would attempt to
maintain such a proposition.
It follows, then, that the question whether the legality of an
act of the head of a department be examinable in a court of justice
or not must always depend on the nature of that act.
If some acts be examinable and others not, there must be some
rule of law to guide the Court in the exercise of its
In some instances, there may be difficulty in applying the rule
to particular cases; but there cannot, it is believed, be much
difficulty in laying down the rule.
By the Constitution of the United States, the President is
invested with certain important political powers, in the
Page 5 U. S. 166
exercise of which he is to use his own discretion, and is
accountable only to his country in his political character and to
his own conscience. To aid him in the performance of these duties,
he is authorized to appoint certain officers, who act by his
authority and in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may
be entertained of the manner in which executive discretion may be
used, still there exists, and can exist, no power to control that
discretion. The subjects are political. They respect the nation,
not individual rights, and, being entrusted to the Executive, the
decision of the Executive is conclusive. The application of this
remark will be perceived by adverting to the act of Congress for
establishing the Department of Foreign Affairs. This officer, as
his duties were prescribed by that act, is to conform precisely to
the will of the President. He is the mere organ by whom that will
is communicated. The acts of such an officer, as an officer, can
never be examinable by the Courts.
But when the Legislature proceeds to impose on that officer
other duties; when he is directed peremptorily to perform certain
acts; when the rights of individuals are dependent on the
performance of those acts; he is so far the officer of the law, is
amenable to the laws for his conduct, and cannot at his discretion,
sport away the vested rights of others.
The conclusion from this reasoning is that, where the heads of
departments are the political or confidential agents 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.
If this be the rule, let us inquire how it applies to the case
under the consideration of the Court.
Page 5 U. S. 167
The power of nominating to the Senate, and the power of
appointing the person nominated, are political powers, to be
exercised by the President according to his own discretion. When he
has made an appointment, he has exercised his whole power, and his
discretion has been completely applied to the case. If, by law, the
officer be removable at the will of the President, then a new
appointment may be immediately made, and the rights of the officer
are terminated. But as a fact which has existed cannot be made
never to have existed, the appointment cannot be annihilated, and
consequently, if the officer is by law not removable at the will of
the President, the rights he has acquired are protected by the law,
and are not resumable by the President. They cannot be extinguished
by Executive authority, and he has the privilege of asserting them
in like manner as if they had been derived from any other
The question whether a right has vested or not is, in its
nature, judicial, and must be tried by the judicial authority. If,
for example, Mr. Marbury had taken the oaths of a magistrate and
proceeded to act as one, in consequence of which a suit had been
instituted against him in which his defence had depended on his
being a magistrate; the validity of his appointment must have been
determined by judicial authority.
So, if he conceives that, by virtue of his appointment, he has a
legal right either to the commission which has been made out for
him or to a copy of that commission, it is equally a question
examinable in a court, and the decision of the Court upon it must
depend on the opinion entertained of his appointment.
That question has been discussed, and the opinion is that the
latest point of time which can be taken as that at which the
appointment was complete and evidenced was when, after the
signature of the President, the seal of the United States was
affixed to the commission.
It is then the opinion of the Court:
1. That, by signing the commission of Mr. Marbury, the President
of the United States appointed him a justice
Page 5 U. S. 168
of peace for the County of Washington in the District of
Columbia, and that 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 that
the appointment conferred on him a legal right to the office for
the space of five years.
2. That, having this legal title 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 his country
afford him a remedy.
It remains to be inquired whether,
3. He is entitled to the remedy for which he applies. This
1. The nature of the writ applied for, and
2. The power of this court.
1. The nature of the writ.
Blackstone, in the third volume of his Commentaries, page 110,
defines a mandamus to be
"a command issuing in the King's name from the Court of King's
Bench, and directed to any person, corporation, or inferior court
of judicature within the King's dominions requiring them to do some
particular thing therein specified which appertains to their office
and duty, and which the Court of King's Bench has previously
determined, or at least supposes, to be consonant to right and
Lord Mansfield, in 3 Burrows, 1266, in the case of The King
v. Baker et al.,
states with much precision and explicitness
the cases in which this writ may be used.
"Whenever," says that very able judge,
"there is a right to execute an office, perform a service, or
exercise a franchise (more especially if it be in a matter of
public concern or attended with profit), and a person is kept out
of possession, or dispossessed of such right, and
Page 5 U. S. 169
has no other specific legal remedy, this court ought to assist
by mandamus, upon reasons of justice, as the writ expresses, and
upon reasons of public policy, to preserve peace, order and good
In the same case, he says,
"this writ ought to be used upon all occasions where the law has
established no specific remedy, and where in justice and good
government there ought to be one."
In addition to the authorities now particularly cited, many
others were relied on at the bar which show how far the practice
has conformed to the general doctrines that have been just
This writ, if awarded, would be directed to an officer of
government, and its mandate to him would be, to use the words of
"to do a particular thing therein specified, which appertains to
his office and duty and which the Court has previously determined
or at least supposes to be consonant to right and justice."
Or, in the words of Lord Mansfield, the applicant, in this case,
has a right to execute an office of public concern, and is kept out
of possession of that right.
These circumstances certainly concur in this case.
Still, to render the mandamus a proper remedy, the officer to
whom it is to be directed must be one to whom, on legal principles,
such writ may be directed, and the person applying for it must be
without any other specific and legal remedy.
1. With respect to the officer to whom it would be directed. The
intimate political relation, subsisting between the President of
the United States and the heads of departments, necessarily renders
any legal investigation of the acts of one of those high officers
peculiarly irksome, as well as delicate, and excites some
hesitation with respect to the propriety of entering into such
investigation. Impressions are often received without much
reflection or examination, and it is not wonderful that, in such a
case as this, the assertion by an individual of his legal claims in
a court of justice, to which claims it is the duty of that court to
attend, should, at first view, be considered
Page 5 U. S. 170
by some as an attempt to intrude into the cabinet and to
intermeddle with the prerogatives of the Executive.
It is scarcely necessary for the Court to disclaim all
pretensions to such a jurisdiction. An extravagance so absurd and
excessive could not have been entertained for a moment. The
province of the Court is solely to decide on the rights of
individuals, not to inquire how the Executive or Executive officers
perform duties in which they have a discretion. Questions, in their
nature political or which are, by the Constitution and laws,
submitted to the Executive, can never be made in this court.
But, if this be not such a question; if so far from being an
intrusion into the secrets of the cabinet, it respects a paper
which, according to law, is upon record, and to a copy of which the
law gives a right, on the payment of ten cents; if it be no
intermeddling with a subject over which the Executive can be
considered as having exercised any control; what is there in the
exalted station of the officer which shall bar a citizen from
asserting in a court of justice his legal rights, or shall forbid a
court to listen to the claim or to issue a mandamus directing the
performance of a duty not depending on Executive discretion, but on
particular acts of Congress and the general principles of law?
If one of the heads of departments commits any illegal act under
colour of his office by which an individual sustains an injury, it
cannot be pretended that his office alone exempts him from being
sued in the ordinary mode of proceeding, and being compelled to
obey the judgment of the law. How then can his office exempt him
from this particular mode of deciding on the legality of his
conduct if the case be such a case as would, were any other
individual the party complained of, authorize the process?
It is not by the office of the person to whom the writ is
directed, but the nature of the thing to be done, that the
propriety or impropriety of issuing a mandamus is to be determined.
Where the head of a department acts in a case in which Executive
discretion is to be exercised, in which he is the mere organ of
Executive will, it is
Page 5 U. S. 171
again repeated, that any application to a court to control, in
any respect, his conduct, would be rejected without hesitation.
But where he is directed by law to do a certain act affecting
the absolute rights of individuals, in the performance of which he
is not placed under the particular direction of the President, and
the performance of which the President cannot lawfully forbid, and
therefore is never presumed to have forbidden -- as for example, to
record a commission, or a patent for land, which has received all
the legal solemnities; or to give a copy of such record -- in such
cases, it is not perceived on what ground the Courts of the country
are further excused from the duty of giving judgment that right to
be done to an injured individual than if the same services were to
be performed by a person not the head of a department.
This opinion seems not now for the first time to be taken up in
It must be well recollected that, in 1792, an act passed,
directing the secretary at war to place on the pension list such
disabled officers and soldiers as should be reported to him by the
Circuit Courts, which act, so far as the duty was imposed on the
Courts, was deemed unconstitutional; but some of the judges,
thinking that the law might be executed by them in the character of
commissioners, proceeded to act and to report in that
This law being deemed unconstitutional at the circuits, was
repealed, and a different system was established; but the question
whether those persons who had been reported by the judges, as
commissioners, were entitled, in consequence of that report, to be
placed on the pension list was a legal question, properly
determinable in the Courts, although the act of placing such
persons on the list was to be performed by the head of a
That this question might be properly settled, Congress passed an
act in February, 1793, making it the duty of the Secretary of War,
in conjunction with the Attorney General, to take such measures as
might be necessary to obtain an adjudication of the Supreme Court
of the United
Page 5 U. S. 172
States on the validity of any such rights, claimed under the act
After the passage of this act, a mandamus was moved for, to be
directed to the Secretary of War, commanding him to place on the
pension list a person stating himself to be on the report of the
There is, therefore, much reason to believe that this mode of
trying the legal right of the complainant was deemed by the head of
a department, and by the highest law officer of the United States,
the most proper which could be selected for the purpose.
When the subject was brought before the Court, the decision was
not that a mandamus would not lie to the head of a department
directing him to perform an act enjoined by law, in the performance
of which an individual had a vested interest, but that a mandamus
ought not to issue in that case -- the decision necessarily to be
made if the report of the commissioners did not confer on the
applicant a legal right.
The judgment in that case is understood to have decided the
merits of all claims of that description, and the persons, on the
report of the commissioners, found it necessary to pursue the mode
prescribed by the law subsequent to that which had been deemed
unconstitutional in order to place themselves on the pension
The doctrine, therefore, now advanced is by no means a novel
It is true that the mandamus now moved for is not for the
performance of an act expressly enjoined by statute.
It is to deliver a commission, on which subjects the acts of
Congress are silent. This difference is not considered as affecting
the case. It has already been stated that the applicant has, to
that commission, a vested legal right of which the Executive cannot
deprive him. He has been appointed to an office from which he is
not removable at the will of the Executive, and, being so
Page 5 U. S. 173
appointed, he has a right to the commission which the Secretary
has received from the President for his use. The act of Congress
does not, indeed, order the Secretary of State to send it to him,
but it is placed in his hands for the person entitled to it, and
cannot be more lawfully withheld by him than by another person.
It was at first doubted whether the action of detinue was not a
specific legal remedy for the commission which has been withheld
from Mr. Marbury, in which case a mandamus would be improper. But
this doubt has yielded to the consideration that 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, and
the applicant has a right to the office itself, or to nothing. He
will obtain the office by obtaining the commission or a copy of it
from the record.
This, then, is a plain case of a mandamus, either to deliver the
commission or a copy of it from the record, and it only remains to
Whether it can issue from this Court.
The act to establish the judicial courts of the United States
authorizes the Supreme Court
"to issue writs of mandamus, in cases warranted by the
principles and usages of law, to any courts appointed, or persons
holding office, under the authority of the United States."
The Secretary of State, being a person, holding an office under
the authority of the United States, is precisely within the letter
of the description, and if this Court is not authorized to issue a
writ of mandamus to such an officer, it must be because the law is
unconstitutional, and therefore absolutely incapable of conferring
the authority and assigning the duties which its words purport to
confer and assign.
The Constitution vests the whole judicial power of the United
States in one Supreme Court, and such inferior courts as Congress
shall, from time to time, ordain and establish. This power is
expressly extended to all cases arising under the laws of the
United States; and consequently, in some form, may be exercised
over the present
Page 5 U. S. 174
case, because the right claimed is given by a law of the United
In the distribution of this power. it is declared that
"The Supreme Court shall have original jurisdiction in all cases
affecting ambassadors, other public ministers and consuls, and
those in which a state shall be a party. In all other cases, the
Supreme Court shall have appellate jurisdiction."
It has been insisted at the bar, that, as the original grant of
jurisdiction to the Supreme and inferior courts is general, and the
clause assigning original jurisdiction to the Supreme Court
contains no negative or restrictive words, the power remains to the
Legislature to assign original jurisdiction to that Court in other
cases than those specified in the article which has been recited,
provided those cases belong to the judicial power of the United
If it had been intended to leave it in the discretion of the
Legislature to apportion the judicial power between the Supreme and
inferior courts according to the will of that body, it would
certainly have been useless to have proceeded further than to have
defined the judicial power and the tribunals in which it should be
vested. The subsequent part of the section is mere surplusage -- is
entirely without meaning -- if such is to be the construction. If
Congress remains at liberty to give this court appellate
jurisdiction where the Constitution has declared their jurisdiction
shall be original, and original jurisdiction where the Constitution
has declared it shall be appellate, the distribution of
jurisdiction made in the Constitution, is form without
Affirmative words are often, in their operation, negative of
other objects than those affirmed, and, in this case, a negative or
exclusive sense must be given to them or they have no operation at
It cannot be presumed that any clause in the Constitution is
intended to be without effect, and therefore such construction is
inadmissible unless the words require it.
Page 5 U. S. 175
If the solicitude of the Convention respecting our peace with
foreign powers induced a provision that the Supreme Court should
take original jurisdiction in cases which might be supposed to
affect them, yet the clause would have proceeded no further than to
provide for such cases if no further restriction on the powers of
Congress had been intended. That they should have appellate
jurisdiction in all other cases, with such exceptions as Congress
might make, is no restriction unless the words be deemed exclusive
of original jurisdiction.
When an instrument organizing fundamentally a judicial system
divides it into one Supreme and so many inferior courts as the
Legislature may ordain and establish, then enumerates its powers,
and proceeds so far to distribute them as to define the
jurisdiction of the Supreme Court by declaring the cases in which
it shall take original jurisdiction, and that in others it shall
take appellate jurisdiction, the plain import of the words seems to
be that, in one class of cases, its jurisdiction is original, and
not appellate; in the other, it is appellate, and not original. ,If
any other construction would render the clause inoperative, that is
an additional reason for rejecting such other construction, and for
adhering to the obvious meaning.
To enable this court then to issue a mandamus, it must be shown
to be an exercise of appellate jurisdiction, or to be necessary to
enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction
may be exercised in a variety of forms, and that, if it be the will
of the Legislature that a mandamus should be used for that purpose,
that will must be obeyed. This is true; yet the jurisdiction must
be appellate, not original.
It is the essential criterion of appellate jurisdiction that it
revises and corrects the proceedings in a cause already instituted,
and does not create that case. Although, therefore, a mandamus may
be directed to courts, yet to issue such a writ to an officer for
the delivery of a paper is, in effect, the same as to sustain an
original action for that paper, and therefore seems not to belong
Page 5 U. S. 176
appellate, but to original jurisdiction. Neither is it necessary
in such a case as this to enable the Court to exercise its
The authority, therefore, given to the Supreme Court by the act
establishing the judicial courts of the United States to issue
writs of mandamus to public officers appears not to be warranted by
the Constitution, and it becomes necessary to inquire whether a
jurisdiction so conferred can be exercised.
The question whether an act repugnant to the Constitution can
become the law of the land is a question deeply interesting to the
United States, but, happily, not of an intricacy proportioned to
its interest. It seems only necessary to recognise certain
principles, supposed to have been long and well established, to
That the people have an original right to establish for their
future government such principles as, in their opinion, shall most
conduce to their own happiness is the basis on which the whole
American fabric has been erected. The exercise of this original
right is a very great exertion; nor can it nor ought it to be
frequently repeated. The principles, therefore, so established are
deemed fundamental. And as the authority from which they proceed,
is supreme, and can seldom act, they are designed to be
This original and supreme will organizes the government and
assigns to different departments their respective powers. It may
either stop here or establish certain limits not to be transcended
by those departments.
The Government of the United States is of the latter
description. The powers of the Legislature are defined and limited;
and that those limits may not be mistaken or forgotten, the
Constitution is written. To what purpose are powers limited, and to
what purpose is that limitation committed to writing, if these
limits may at any time be passed by those intended to be
restrained? The distinction between a government with limited and
unlimited powers is abolished if those limits do not confine the
persons on whom they are imposed, and if acts prohibited
Page 5 U. S. 177
and acts allowed are of equal obligation. It is a proposition
too plain to be contested that the Constitution controls any
legislative act repugnant to it, or that the Legislature may alter
the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The
Constitution is either a superior, paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts,
and, like other acts, is alterable when the legislature shall
please to alter it.
If the former part of the alternative be true, then a
legislative act contrary to the Constitution is not law; if the
latter part be true, then written Constitutions are absurd attempts
on the part of the people to limit a power in its own nature
Certainly all those who have framed written Constitutions
contemplate them as forming the fundamental and paramount law of
the nation, and consequently the theory of every such government
must be that an act of the Legislature repugnant to the
Constitution is void.
This theory is essentially attached to a written Constitution,
and is consequently to be considered by this Court as one of the
fundamental principles of our society. It is not, therefore, to be
lost sight of in the further consideration of this subject.
If an act of the Legislature repugnant to the Constitution is
void, does it, notwithstanding its invalidity, bind the Courts and
oblige them to give it effect? Or, in other words, though it be not
law, does it constitute a rule as operative as if it was a law?
This would be to overthrow in fact what was established in theory,
and would seem, at first view, an absurdity too gross to be
insisted on. It shall, however, receive a more attentive
It is emphatically the province and duty of the Judicial
Department to say what the law is. Those who apply the rule to
particular cases must, of necessity, expound and interpret that
rule. If two laws conflict with each other, the Courts must decide
on the operation of each.
Page 5 U. S. 178
So, if a law be in opposition to the Constitution, if both the
law and the Constitution apply to a particular case, so that the
Court must either decide that case conformably to the law,
disregarding the Constitution, or conformably to the Constitution,
disregarding the law, the Court must determine which of these
conflicting rules governs the case. This is of the very essence of
If, then, the 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.
Those, then, who controvert the principle that the Constitution
is to be considered in court as a paramount law are reduced to the
necessity of maintaining that courts must close their eyes on the
Constitution, and see only the law.
This doctrine would subvert the very foundation of all written
Constitutions. It would declare that an act which, according to the
principles and theory of our government, is entirely void, is yet,
in practice, completely obligatory. It would declare that, if the
Legislature shall do what is expressly forbidden, such act,
notwithstanding the express prohibition, is in reality effectual.
It would be giving to the Legislature a practical and real
omnipotence with the same breath which professes to restrict their
powers within narrow limits. It is prescribing limits, and
declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest
improvement on political institutions -- a written Constitution,
would of itself be sufficient, in America where written
Constitutions have been viewed with so much reverence, for
rejecting the construction. But the peculiar expressions of the
Constitution of the United States furnish additional arguments in
favour of its rejection.
The judicial power of the United States is extended to all cases
arising under the Constitution.
Page 5 U. S. 179
Could it be the intention of those who gave this power to say
that, in using it, the Constitution should not be looked into? That
a case arising under the Constitution should be decided without
examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the Constitution must be looked into by the
judges. And if they can open it at all, what part of it are they
forbidden to read or to obey?
There are many other parts of the Constitution which serve to
illustrate this subject.
It is declared that "no tax or duty shall be laid on articles
exported from any State." Suppose a duty on the export of cotton,
of tobacco, or of flour, and a suit instituted to recover it. Ought
judgment to be rendered in such a case? ought the judges to close
their eyes on the Constitution, and only see the law?
The Constitution declares that "no bill of attainder or ex
law shall be passed."
If, however, such a bill should be passed and a person should be
prosecuted under it, must the Court condemn to death those victims
whom the Constitution endeavours to preserve?
"No person,' says the Constitution, 'shall be convicted of
treason unless on the testimony of two witnesses to the same overt
act, or on confession in open court."
Here. the language of the Constitution is addressed especially
to the Courts. It prescribes, directly for them, a rule of evidence
not to be departed from. If the Legislature should change that
rule, and declare one witness, or a confession out of court,
sufficient for conviction, must the constitutional principle yield
to the legislative act?
From these and many other selections which might be made, it is
apparent that the framers of the Constitution
Page 5 U. S. 180
contemplated that instrument as a rule for the government of
courts, as well as of the Legislature.
Why otherwise does it direct the judges to take an oath to
support it? This oath certainly applies in an especial manner to
their conduct in their official character. How immoral to impose it
on them if they were to be used as the instruments, and the knowing
instruments, for violating what they swear to support!
The oath of office, too, imposed by the Legislature, is
completely demonstrative of the legislative opinion on this
subject. It is in these words:
"I do solemnly swear that I will administer justice without
respect to persons, and do equal right to the poor and to the rich;
and that I will faithfully and impartially discharge all the duties
incumbent on me as according to the best of my abilities and
understanding, agreeably to the Constitution and laws of the United
Why does a judge swear to discharge his duties agreeably to the
Constitution of the United States if that Constitution forms no
rule for his government? if it is closed upon him and cannot be
inspected by him?
If such be the real state of things, this is worse than solemn
mockery. To prescribe or to take this oath becomes equally a
It is also not entirely unworthy of observation that, in
declaring what shall be the supreme law of the land, the
Constitution itself is first mentioned, and not the laws of the
United States generally, but those only which shall be made in
pursuance of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the
United States confirms and strengthens the principle, supposed to
be essential to all written Constitutions, that a law repugnant to
the Constitution is void, and that courts, as well as other
departments, are bound by that instrument.
The rule must be discharged.