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DECEMBER, i8ox.

it iball have been paid to the creditor. The flieriff may TuRNIM
certainly make fuch payment out of court, if no circum- I.
ftance occuirs which legally obitructs or oppofes it, fuch FENDALL.
as an injunction from the court of chancery, in which cafe, f-
by the law of Virginia, the money muft b6 returned or an
execution againft the goods and chattels of the perion to
whom the money in his hands fhall be payable. In the
latter cafe it feems to the court Pcill to be the duty of the
iferiff to obey the order of the writ and to bring the mo-
ney into court, there to be difpofed of as the court may
dire&. This was done in the cafe of Armyead v. Phil-
pot, and in that cafe the court "diredted the money to be
paid in fatisfaaion of the.fecond execution. This ought
to- be done whenever the legal and equitable right to the
money is in the perfon whofe goods and chattels are lia-
ble to fuch execution.

In the cafe of Turner and Fendall, the fherifTnot having.
brought the money into court, but having levied an exe-
cution on it while in his hands, has not fufficiently jufti-
fled the non-pa) ment of it to the creditor ; and iberefore
the court committed no error in rendering judgment
againit him on the motion of that creditor. If the payment
of the damages fhould be againft equity, that was npt a
fubje& for the confidetation of the court of law which
rendered the judgment.

Judgment affirmed.

WILLIAM MARBURY
v.
JAMES MADISON, SECRETARY OF STATE
OF THE UNITED STATES.

FEBRUARY, 1803.

AT the laft term, viz. December term, X8or, MARIlURY
William Marbury, Dennis Ramfay, Robert Townfend v.
Hooe, and William Harper, by their counfel, Charles MADISON.
Lee, efq. late- attorney general of the United States,
S

SUPREME COURT U. S.

MA feverally moved the court for a rule to Jatnes Madifon*l
.IBUPY
'v. fecrtary of fRate of the United States, tc fhew caufe
MADIsoW. why a mandamus flhould not iffue commanding him.to
Scaufe to be delivered to them refpedively their feveral
Th fupreme commiffions as juftices of the~peace in the diftri& of Co.
court of the U
States has n lumbia. This motion was fupportcdby affidavits of the
power to iffue following fa&s; that notice of this motion had beem
fecretary of to given
a" mandimus o.. to Mr. Madifon; that Mr. Adams,- the late prefi-
afateof the U of the Unted States,. nominated the applicants to the
fenate for their advice and confent to be appointed juf-
States, it being
an excrcife of tices of the peace of the diftrid of Columbia ; that the
vrgnaJurIfdic" fenate advifed and confented to the appoinrtments; that
tion not war-
ranted by the commiffions in due form were fig-ned by the faid prefi-
conftitution., dent appointing ihem jufticcs,. &c. and that the feal of
Congrcfs hav6 the United States was in due form affixed to the faid corn-
not power to niffions by tjie fecretary of fRate; that the applicants
jurifdiion to have. requcfted Mr. Madifon to deliver them their faid

the fuprene commiffions, who has notcoiplied with that requeft; ahd
courtn other that their faid commiffions are withheld from them; that
cafes than thofe
defcribed in the applicants have made application to Mr. Madifon as
confihtution. fecretary of fate of the United States at his office, for
Au adt of co,- information whether the commiffions were figned and
grefs repogna,. fealed as aforefaid; that explicit and faiisfadlory informa-
tion cannot be- tion has not been given in anfwer to that enquiry, either
come a law. by the fecretary of (Late or 4ny officer in the department
the courts of of flate; that application has been made to th fecretary

are boundto of the Senate for a certificate of the nomination of the
take notice of appjieants, and of the advice and confent of the fenate,
theconftituticon. who has declined giving fuch a certificate; whereupon a
A commifflonl
is not neceffary rule was laid to fhewcaufe on the 4th day of this term.
to the appoint- This rule having been duly ferved,
ment of an of-
ficerby the ex- Mr. Lee, in fupport of the rule, obferved that it was
ecetive-Senab.
A commiffuon important to know on what ground a juflice of peace in
isonly evidene, the diftrid of Columbia holds his office, and what pro-
of an appoint- ceedings are neceffar.y to couiftittte an appointment to
meat an office not held at the will of the prefident.
Delivers, is not.. . However
x1cceffary to the notorious the fads are, upon .the fuggeftion of which
validity of let- this rule has been lAid, yet the applicants have been
ters patent much embarraffed in obtaining evidence of them. Rea-
thePrefient fouable inforitation has been. denied at th- office of the
cannot autho-
rize a fecretary department of flate, Although a refpedful memorial
of flate tooinit has been made to the fenate pr aying them to fuffer their
the¢ perform. fecretary to give extrads from their exeeutive journals re-

FEBRUARY, 1803.
ipeding the momination of the applicants to the fenafe, MARBVRV
and of their advice and confent to the appointments, yet IV.
their requeft has been denied, and their petition rejeted. MADISON

They have therefore been compelled to fummon wit-
neffes to attend in court, whofe voluntary affidavits they ane of thofe
could not obtain. Mr. Lee here read the affidavit of duties which
are enjoined by
Dennis Ramfay, and the printed journals of the fenate law.
of 31 January, -18o3, refpet-ting the refufal of the fe- A jufhice of
peace ill the
nate to fuffer their fecretary to give the information re- diflri& of Co-
quefted. He then called Jacob Wagner and Daniel lumbia i, not
Brent, who had been fummoned to attend the court, and removeable at
underftood, declined giving a voluntary he will of the
who had, as it is'
atidavit. They objeaed to being fworn, alleging that Prefident.
When a comn
they were clerks in the department of ifate and not million for 3n
bound to difclofe any fadls relating to the bufinefs or officer not hold-
ing his office at
tranfadions in the-office. the will of 'the
Prefident, is by
Mr. Lee obferved, that to fhew the propriety of ex- him figned and
flat remarks
amining thefe witneffes, he would make a few thte fecretarytoof
.Hi tranfolutted
on the nature of the office of fecretary of toetbefea-
His fate.
duties are of two kinds, and he exercifes his fundions in ed and record-
two diflin6 capacities ; as a public minifterial officer of ed, it is irre-
the United States, and as agent of the Prefident. In the ocble; the
appointment is'
lirtl his duty is to the United States or its citizens i . n romplete.
the other his duty is to the .Prefident ; in the one heiis A- mandamus
an independent, and an accountable officer ; in the other isremedy
the proper
to comn-
he is-dependent upon the Prefident, is his agent, and ac-'peI a fecretary
countable to 'him alone.. In the former capacity he is of Rate to de-
livertowhh
compellable, by randamus to do his duty; in the latter he fion a commif-
is not. This diftindion is clearly poiiited out by the two the which
teparty is in.
ads of c'ongrefs upon this fubjed. The firft waspaffed titled.
'27 th July, 1789, vol. I.p. 359, entitled " an ad for
eftablifhing an executive dcpartment, to be denominated
the department of foreign affairs." The firft fedion'afcer-
tains the duties of the fecretary fo far as he is confidered
as a mere executive agent. It is in thefe words, -Be it
" enaded, &c. that there fhall be' an executive depart-
f ment, to be denominated the department of foreign af-
c fairs, and that there (hall be a principal officer therein,
" to be called the fecretary of the department of foreign
c affairs, who flall perform. and execute fucji duties as
" fhall from time to time be enjoined on, or intrulted to
"him by the Prefident of the United States, agreeable
'to the conftitution, relative to correfpondencies, corn-

SUPREME COURT U. S.

MANIBRY " miffions or iniftrudions to or with public minifters or
'L'. " confuls from the United States ; or to negQciations with
MADIsoN. " public minifters from foreign flates or princes, or to
" memorials or other applications from foreign public mi-
" nifters, or other foreigners, or to fuch other nhatters
" refpeding foreign affairs as the Prefident of the United
", States fhall aflign to the faid department; and further-
" more, that the faid principal officer fhall'condud the
cc bufinefs of the faid department in fuch manner as the
Prefident of the. United States fiall from time to time
"order or inftru&."
The fecond fection provides for the appointment of a
chief clerk ; the third fection prefcribes the oath to be
taken which is firniply, , well and faithfully to execute tht
"' truft committed to him ;" and' the fourth and laft fectiotr
gives him the cuftody of the books and papers of the
department of.foreign affairs under the old congrefs.
Refpe&ing the powers given and the duties impofed by
this ad, no mandamus will lie. The fecretary is re-
fponfible only to the Prefident. The other'a& of congrefs
refpe&ing this department was paffed at the fame feffion
on the I 5 th September I789, vol. 1, p. 41, c. 14, and is
entitled " An at to provide for the fafe keeping of the
c ads, records, and feal of the United States, and for'
other purpofes." The firft (ection changes the name of the
department and of the fecretary, galling the one the
department and the other the fecretary of ftAte. The
fecond feetion affigns new duties to the fecretary, in the per-
formance of which it is evident, from their natUre, he
cannot be lawfully controlled by the prefident, and for
the non-performance of which he is not more refponfible
to.'the p.efident fhan to any other citizen of the United
States. It provides that lie fha4ll.receive from the prefident
-all billS,orders, refolutions and votes of the fenate and houfe
of reprefentatives,whichfhallhave been approved and figrt-
ed by him.; and fhall caufe them to be publifhed, and print-
ed copies to be delivered to the fenators and reprefentatives
and to the executives of the feveral flates ; and makes it
his duty carefully to preferve the originals and to caufe
them to be tecorded in books to be provided -for that pur-
pofe The third fcEion provides a feal of. the United
States. The fourth makes it his duty to keep the faid
feal, and -to make out and record, ,and to affix the feal
of the United States to all. civil commiffions, after they

in executing them. ordei's. he is. and patents of lands grailted uti. refolutions and votes of the legiflature. and in regard to which he has no difpenfing power. without the control of any perfon. and affixing the feal to civil com- miffions of fuch officers as hold not their offices at the will of the. or from preferving or recording them. I'n the perform- ance of all thefe duties he is a public minifterial oflicer of the United States. Moft of the duties affigned by this a& are of a public nature. 1863: . as every other minifte- rial officer of the United States. uncontrol- able by the Prefident. and his clerks can have nP exciufive privileges. The Prefident is no party to this cafe. Thefe duties are not of a confidential nature. flhall be. nor prevent him from recording. There are undoubtedly faal. refpecting which . in the fame manner as other perfons holding offices under the authority of the United States. therefore. after he has figned them and de- livered them to the fecretary for that purpofe. &c. der the authority of. And the duties beinkg enjoined upon him by law. be compelled by mandamus.. and for the negleCt of which he is in no manner refpotifible. form a duty over which the Prefident has no control. but are of a public kind. The fecretary of.being in the fame fituation. and the fecretary is bound to perform them. flate. The fixth fedion eftabilifhes fees for copies. the United States.14t fhall have been figned by the Prefident. The fifth fedion MAIBURY piovides for a feal of office. The Prefident has no right to prevent him from receiving the bills. as good evidence as the originals. authenticated under that feal. FEBRUARY. may come to their knowledge by means of their connexion with the fecretary of Rtate. he may. and equally liable to be compelled to perform them.Prefident. The fecretary is called upon to per. as to thefe duties. and that all copies of records Iv. and if he negleats or refufes to perform them. While the fecretary remains in office the Prefident cannot take from his cuftody the feal of the United States. and papers in his office. or from publiffing and diftributing them. and he albne is anfwerable for thcir due perform- ance. is alfo bound by the fame rules of evidence. The feventh and laft fedion gives him'the cuflody of the papers of the ofl-ce of the fecretary of the old congrefs. The fecretary alone is the perfon to whom they are en- truffed. which. MADIsoN. By other laws he is to make out and record in his office patents for ufeful difcoveries.

if they had any. but the other had not. I am refufed. But in order to obtain a mandamus. I muft fliew that the patent is re- corded in his office. conftituting the applicants. Suppofe I claim title to land under a patent from the United States. becaufe it was not pertinent to this caufe: He further teftified that rome of the commiffions of the juf- . to call upon the clerks in the office to prove that fuch an aft is among the rolls of the office. The court ordered the witneffes to be fworn and their anfwers taken in writing. fuppofe a private a& of tongrefs had pafred for my benefit. or either of them juftices of the peace. My cafe would be hard indeed if -I could not' call upon the clerks in the office to give evidence of that fa&.ticesi but he believed not all. Mr. He refufes. Shall I not be permit- ted. I apply for a copy. and confidential com- MAalsoa. Wagner being examined upon interrogatories. That the fecretary referred them to him .. Again. He did not know whether the commiflions of %he applicants were . but may he a ground of obje&ion to any particular queftion. That Mr Marbury and Mr.that at this diftance of time he could not recol- left whether he had feen any commiffion in the office. Such are thelaCts con- q'. SUPREME COURT U. and no be- nefit to refult therefrom. but informed them that when the queftions were afked they might ifate their obje&ions to anfwering each particular queftion.. Wagner declined anfwering the queftion . munications betweeh the head of the department and the Prefident. but by the information of others. I demand a copy of it from the fecretary of ifate. however. or that it is duly recorded ? Surely it can- not be contended that although the laws are to be record- ed. who gave him that informa- tion . Surely he may be compelled by mandamus to give it. yet no accefs is to be had to the records. MA1t 1rit they Cnnot be bound to anfwer.. Ramfay called on the fecretary of ifate refpefting their commiffions. can be no obje&ion to their being fworn. That he did not know that fa& of 'his own knowledge. Mr. that two of the commiffions had been figned. were recorded. . he took therm into another room and mentioned to them. It becomes neceffary for me to have the ufe of that a& in a court of law. S. teftified.. on a motion for a mandamus." and the court decided that he was not bounl to anfwer it. cerning foreign correfpondencies. This.

and that Mr. so. and ought not to anfwer. The queftions being written were then read and hand- ed to him. Lincoln. but fometimes they are. He believed none of thofe commiffions of juftices w. and his opinion was fupported by that of others whom he highly refpeE- ed. objeked to anfwering. and on the other he felt himfelf bound to maintain the rights of the executive. On the one hand he refpeied the'jurif- diaion of this court. as to any fa&s which came officially to his knowledge while aaing as fecretary of ftate. He was of opinion. and now called. nor did he know that they are now in the office of the fecretary of ftate. and was almoft certain. and faid his objections were of two kinds. attorney general. . and that he might afterwards have time to determine whether he would anfwer. He requefted that the queftions might be put in writing. Ramfay's was not. Mr. recorded. After the com- millions for juftices of the peace were made out. he be- lieved none of the commiffions for juftices of the peace figned by Mr. He was aiing as fecretary of ftate at the time when this tranf- a~kion happened. Mr. Ramfay was pretermitted by miftake. that he was not bound. tMADISON. Adams for his fignature. but to the beft of his know- ledge it contained the names of the other two. wherd the feal of the United States was affixed to them. as he had not had recourfe to the book for more MARSU Y than twelve months paft. After being figned he carried them back to the fecretary's office. but believed. IV. FEBRUARY. Hooe's commiffions were made out. Marbury's and col.-re ever fent out. and a note of them only is taken.names b which the clerk who filled up the commiffions was guided. or delivered to the perfons for whom they were intended. having been fummon- ed. he car- ried them to Mr. that he made out the lift of . Daniel Brent teftified. that he did not remember certainly the names of any of the perfons in the com- miffions of juftices of the peace figned by Mr. were recorded. That commiffions are not ufually delivered out of the office before they are recorded . he did not know what became of them. that Mr. He repeated the ideas he had before fug- tefted. Adams. and they are recorded afterwards. he believed that the name of Mr. Adams .

He did not think himfelf bound to difclofe his of- . in rcply. Brent.1ing in this capacity. they would give him time . it . or . He ought not to be compelled to anfwer any thing which might tend to crim. totally independent of the Prefident. 4' * 2d. MARBURY ift. But that in the difcharge of the other part of his duties. and MADISON. and accountable tQ him for his condu&. and hoped the court would give him time to confider of the fubjcd. a colledor. Lincoln thought it was going a great way-to fay that every fecretary of tate flould at all times be liable to be called upon to appear as a Nvitnefs in a court of jutice. he was not bound to anfwer. but that the fadt whether fuch commiffions had been in the office or not. . 144 SUPREME COURT U. Lincoln was not bouid to difclofe any thing which might tend to criminate himfelf. If there had been he was not obliged to anfwcr it .'. bound to obey his orders. He felt himfelf delicately fituated between his duty to this court. He ifated that the du- ties of a fecretary of ftate were two-fold. and that as to any fads which came. Wagner an l Mr. but in the capacity of an agent of the Prefident. ficial tranfaaions while adiing as fecretary of ifate.nate himfef. while ad. but they had no doubt he ought to anfwer. There was nothing confidential required to be difelofed. nor was he obliged to ftate any thing which would criminate him- felif. And that as to any fads which came officially to his knowledge in the difcharge of this part of his duties. he was as much bound to anfwer as a marfhal. that if Mr. Lee. He agreed that Mr. S. Lincoln wifled time to confider what anfwers he fhould make. and teftify to facs which came to his knowledge officially. he did not a& as a public minifterial officer. Mr.any other minifterial officer. could not be a confidential fa. officially to his knowledge. and the duty he conceived he owed to an executive department. and if he thought that any thing was communicated to him in confidence he was not bound to difclofe it . In diftharging one part of thofe duties he aded as a public minifterial officer of the United States. The court faid. repeated the fubitance of the ob- fervations he had before made in anfwer to the objedions rf Mr. Mr.

Mr. If MABUlZr he thought any of the queftions improper. and the individuals whofe names were contained in this general commiffion were informed of their being thus. 1803. juftices of the peace. The queftion was. or col. never came to the poffeffion of Mr. excepting the laft which he did not think himfelf obliged to anfwer fully. He did not recolled whether any of them conifituted Mr. The court granted it and pofiponed further confideratioa of the caufe till the next day. there were when he went into the office feveral commiffions for juftices of peace of the diftri made oui . He had no heft- tation in faying that he did not know that they ever came to the poffeffion of Mr. Hooe. V. and fealed with the feal of the United States. and was confidered as fuperfeding the particular commiffions. At the opening of the court on the next morning. Madifon. Marbury. col. Ramfay. he might ftate M. but he was furnifhed with a lift of names to be put into a general commiffion. 145 is a fiCt which all the world have a right to know. He prayed the. it was immaterial to the prefent caufe. Adams. appointed. and did not believe that any one had been fent. if they. Lincoln faid he had no objelion to anfwering the quef- tions propofed. figned by Mr. his objedions. Mr. what had been done with the commillions. nor did he know that they were in the office when Mr. what had been done with them by others. . which was done. Madifon. Madifon took poffeffion of it. To the other' queftions he anfwered that he had feen commiffions of juftices of the peace of the diftri& of Columbia. He did not know that any one of tke commiflions was ever fent to the perfon for whom it was made out. FEBRUARY. Lincoln then prayed time till the next day to con- fider of his anfwers under this opinion of the court. opinion of the court whether he was obliged to difclofe what had been done with the corn- miffions. The court were of opinion that he was not bound to fay what had become of them.

'v.2. having been informed by fome perfon from Alexandria that there was reafou to apprehend riotous proceedings in that town on that night. That finding he could not conveniently carry the whole. commiffions of juftices for that county were delivered to him for which he gave a receipt. that on the 4 th of March i:o . but from the conftitution and laws of the United States. and one for William Harper. 70. Among the commiffions fo returped. Mr. ac- cording to the b&ft of his knowledge and belief. and by reafon of its fupre- macy muft have. 2d. for the commiffions of the juftices of the peace . he returned feveral of them. as he believed. in the receipt.mandamusto James Madifon. Whether in the prefent cafe the court may award a . Whether the fupreme court can award the writ of mandamus in any cafe. was one 'for colonel Hooe. that having proved the exift- encc of the commiffions. Infit. SUPREME COURT U. which he returneo. whether judicial or minifterial. fecretary of ftate. 71. 3. It ftated 4ATs°"N. /AARBURY Mr. which he left in the office. Lee then obferved. In this refped there is no difference between a judicial and a minifterial officer. This is the fipreme court. The argument upon the ift queftion is derived not only fronr f the principles and pradice of that country. he fhould confine fuch further remarks as he had to make in fupport of the rule to three queftions : ift. who had been alfo fummoned as a witnefs. that as many as . 3 d. the fuperintendance of the inferior tri- bunals and officers. From this principle alone the court of king's bench in England derives the power of iffuing the writs of mandamus and prohibition. Lee then read the affidavit of James Marflall. and ftruck a pen through the names of thofe. and to call at the office of the fecretary of flate. he was induced to return immediately home. Whether it will lie to a fecretary qf flate in any cafe whatever. . S. from whence we derive many of the principles of 'our political inftitutions.

The fecond felion of the third article of the . or at leaft fuppofes. and im- plies in its nature the right of fuperintending the inferior tribunals. and iffues in all cafes where "the party has a right to have any thing done. the power of one tribunal to review the pro. There muft then be a jurifdiffion fome where tompetent to ifAu that kind of procefs. and others by a writ of prohi2-tion." In the Federalift. corporation or inferior court. It is a fettled and invariable principle. p. ana to which they have given appellate jurif- dition ? Blakftone. i io. 239. The termn" appellate jurifdialion" is to be taken in its largeft fente. Whereare we to 16ok fot it but in that court which the conflitution and laws have made fupreme. judicature. and direCted to any "perfon. to bd "qonfonailt to right and juftice.confti- tution gives this court appellate jurifdifion in all cafes in law and equity arifing under the conftitution and laws f the United States (except the cafes in which it has ori- ginal jurifdifion) with fuch exceptions. 147 Shall it be faid that the tourt of king's Vexich has this MAitytit power in confequenc of its being. There are forne in- jurieswhich can only be redreffed by a writ of manda- mus. Proceedings in nature of appeals are of various kinds. but in its broadeft fei'fe. and every injury its proper redrefs. whieh .ls in the courfe of the civil -law. 3 BI. P. 2. FEBRUARY. apperiainsto their office and duty. W"--" and a neceffary power.fupreme court of I. 3 BI. vol. vol. 402. con. legal remedy. fpec/iic. muft have a remedy. and ihall we deny it to this court vhich the MADISoN conftitution makes thcfupreme court ? It is a beneficial. when withheld. the . 1803. in which it denotes nothing more than. It is a writ of L moft "extenfively remedial'nature. and under fuch re: gulations as congrefs fhall make. and hat "no ot/crfpecific means of compelling iti berfirmance. as ufed in reference to appe. according to the fubjeft matter. it is faid. 1o9. that the word It appellate" is not to be taken in its technical fenfe. requiring them " to do fome particular thing therein fpecified.r . and it can never be applied where there is another adequate. that every right. fays that a writ of mandamus is " a command iffuing in the king's name " from the court of king's bench. corn. 'and which the court has previoufly determined. 3.

13. Dal. MAtitisvr ceedings of another. Rep. S. and they may well declare a mandamus to be one. and fliall have power " to iffue writs of prohibition to the diftri& courts. The mandamus was refutfed. a prohibition in another. 42. 298. 3.p. This was the celebrated cafe of the French . In thecafe of the United States v. c" cuit courts. in cafes warranted by t. 58. In the cafe of the Un*'ted States v.v. was not a proper one to fupport 'the motion. to compel judge Lawrence to iffue a warrant againif captain Barre. and courts of the feveral flates. by a law paffed at the very firft feffion after the adoption of the confitution. in the cafes " herein after fpecially provided for.the attorney general at the inflance of the French minifter. i. In this cafe the power of the court to ifflue writs of mandamus." Congrcfs is not r~ftrained from conferring original jurisdifion in -other cafes than thofe mentioned in til conflitution. when ci proceeding as courts of admiralty and maritime juris- c diLion . or both. . 3. Congrefs. the principles and ufages of law. Rep. to any courts appoint- ed. was taken for granted in the arguments of counfel on both fides. or perfons bolding office.. 2 Dal. have cxprefsly given the fupreme court the power of iffu- ing writs of mandamus. fec. a mandamus was moved for by. SUPREME COURT U. This court has entertained jurisdiCion on a mandamus in one cafe. under the authority of the " United States. Rep. It has been recognifed by legiflative provifion as well as in judicial decifions in this court. to fa& as well as law. and feems to have been fo confidered by the court. and or. "The fupreme it court fihall alfo have appellate jurisdidion from the cir. It is competent for congrefs td ' * prefcribe the forms of procefs by which the fupreme court fllall exercife its appelhite jurisdi&ion. The words are. vol. 129. 121. becaufe the cafe in which it was required. The writ of mandamus is in the nature of an appeal as -MADI s. com- mander of the French fhip of war Le Perdrix. Dal. either as tb law or fa&. and writs of mandamus.judge Lawrence. But the power does not depend upon implication alone. grounded on an article of the confular convention with France. judge Peteis a writ of prohibition was granted.

as keeper of the great feal. becaufe the two a6ts of congrefs refpecing invalids. not to the Prefident in any cafe. was the power of this court to iffue a mandamus ever denied. I declare it to be my opinion. but is refponfible only in the mode pointed out in the conflitution. as before obferved. In none of thefe cafes.The fecond point is. . he is a minifterial officer of the people of the United States. at February term. of letters patent. to command him to admit a perfon to fubfcribe to the United States loan. Hopkins. The cafe of the United States v. a citizen of Con- ne6licut. As fuch he has duties afligned him by law. Hence it appears there has been a legiflative conftruction of the conftitution upon this point. 1794. loan officer for the diftri& of Virginia. and of commiffions. which afterwards became a fubje& MARIURY of diplomatic controverfy between the two nations. in two capacities. The fecretary of tate acts. FEBRUARY. he is not liable to a mandamus . but I am compelled to do it. that the Prefi- dent is not amenable to any court of judicature for the exercife of his high fun6ions. the court refufed the mandamus. corvette the Caffius. nor in any other. As the agent of the Prefident. for the whole time fince 6he formation of the government. 'but as a recorder of the laws of the United States . com- manding him to place Chandler on the invalid penfion lift. the 5th Feb. After argument. grounded on a comprehenfive view of the fubje&. It may not be proper to mention this pofition . and a judicial pratice under it. as recorder of deeds of land. An idea has gone forth. that any minifterial officer having public duties to perform. 2d. that a mandamus to a fecretary of fRate is equivalent to a mandamus to the Prefident of the United States. &c. in the execution of which he is independent of all control. 1803. or the manners of the citizens of the United States. but that of the laws. . did not fup- port the cafe on which the applicant grounded his motion. a motion was made to the fupreme MADISON. i7 94 was a motion for a mandamus to Hopkins. It is not confiftent with the policy of our political inflitutions. -It is true he is a high officer. On IV. court in behalf of one John Chandler. Upon argument the mandamus was refufed becaufe the ap- plicant had not fufficiently eftabliflhed his title. for a mandamus to thefecretary at war. but he is not above law. can a mandamus go to a fecre- tary of tate in any cafe ? It certainly cannot in all cafes.

he refufes to do it . Mr. but a fpecific civil remedy to the injured party can only be obtained by a writ of mandamus. it may iflue to a fec-retary of fiate . p. SUPREME COUR U." Many cafes may be fuppofed. It immediately becomes his duty to feal. for the a& of congrefs exprefsly gives the power to award it. and fees are given for making them out. Lee whether he un- derftood it to' be the duty of the fecretary to deliver a commiffion. copies under feal of the office of the depart- ment of ftate are made evidence in courts of law. record. and he refufes to deliver it fhall I have no remedy? In this refpea there is no difference between a patent for lands. 43. and de- . MA. Lee repliedi that after the Prefident has figned a commiffion for an office not held at his will. thofe duties. Suppofe the fecretary re. todohis duty. r. but that the fecretary perform thofe minifterial a&s which the law impofes upon him. The duty of the fecretary is precifely the fame. and if he refufes. and it comes to the fecretary to be fealed. to any perfons holding offices under the authority of the United States. is liable to indi&ment.the law muft have been. S. unlefs ordered fo to do by the Prefident. and nothing remains. vol. thall I not have a mark- damus to compel him ? Suppofe the feal is affixed. ought he not to be compelled ? Sup- pofe I am entitled to a patent for lands purchafed of the United States. the Prefident~has done with it. The intention of . in which a fecretary of flate ought to be compelled to perform his duty fpecifi- cally. By the 5 th and 6th fe&ions of the a& of congrefs. fhall he not be com- pelled ? Suppofe it recorded. If a mandamus can be awarded by this court in any cafe. it is made out and figned by the Prefident who gives a warrant to the'fecretary to affix the great feal to the patent . but the fecretary refufes to record it. Judge Patterfon enquired of Mr. As a minifterial officer he is compellable MADIsON.NIARY" f(hould be above the compulfion of law in the exercife o P. "in cafes warrant- ed by the principles and ufages of law. and the commiffion of a judicial officer. Y A profecution of this kind might be the means of punifh- ing the officer. fufes to give a copy. that every peifon needing a copy fhould be entitled to it.

The requifites to be performed by the fecretary a e minifterial.ught to be awarded to James Madi- fon. Lee begged leave agai n to refer to the Fe- deralift. The Prefident has thtn done with it.'. cretary does wrong if he withholds the commiffion. 4. almoft all the authority imme- diately exercifed over them is that of the juftices. 151 liver it on demand. fec. 78r and 79. §2. 273. 2.e figi. The a& of May 3 d. FEBRUARY.. and hold their office for five years. i8oi. afcerained by law. It is important to the citizens of this diftri6 that the juftices Ihould be independent. fecretary of ftate. aid provides the mode in which exe- cution ihall ifliie upon their judgiients. . page 27r. They contained the principles upon which this branch of our conftitution was conftru6lted. but muft perform them . and thq fenate have advifed and conf nted. 1803. In fuch a cafe the appointment be. confiders them as judicial offi ers. vol. An appointment of a judge once completed. fie holds under the conifitution. They hold their officcsiindependent of the will of the Prefident. Nos.ing and fealing . and the fe. is made forever. i i and 4. They contained obfervations and ideas which he wifhed might be generally read and un- derflood. 18o2. They ought therefore to be inde- pendent. 3 d.whether in the prefent cafe a writ of mandamus . fec. Mr. The juftices of the peace in the diftrid of Co lumbia are judicial officers. Thefe juftices exercife part of the judicial power of the United States." ch. and he has no difcretion. as containing a corredf' view of this fubjea. . and the Prefident has figned the commiffion and delivered it to the fecr'tary to be fealed. MARBURv comes c'mplete by th. entitled " An a& concerning the ifri& of Co'umb a. In con- templation of law they are as if done. Th iffice is eftablifhed by the ad of Congrefs pafltd the 27th of Feb. MADISON. *Thethird poin t is. The ap- pointment of fuch an officer is complete when the Preli- dent has nominated him to the fenate. ch. it becomes irre- vocable. They wifh to know whether the juflices of this diflridt are to hold their commillions at the will of a fecretary of flate. there is no difpenfing power. 86. They are authorized to hold courts and have cog- nizance of perfonal demands of the value of 2o dollars.

Carthew 448. and a remedy- inequity. an)J al. It is for this reafon that this court MADOSON. The cafe of Rex. 2 Sid. 381 . Str. 283. 2 Term. W. Wilfon. 402 . The citizens of this difirit have caeir fears excited by every firetch of power by a pcrfon fo high in office as the fecretary of ftate. 2188. BI. This feems . to admit to an office. v. So it lies t3 put the corporate feal to an infirument. 4. and not to fuffer them to be violated by the hand of power. Term Rep. A mandamus gives no right. 2 Bur. Wils. 5 Mod. 2 Bur. but only puts the party in a way to try his right. A mandamus will fometimes lie in a . 3. Y. 3 '. Dr. iooo. 652. Rep. i. Barker. a mandamus iffued to admit one to adminifter an eflate. 1045 . In the cafe of Rex v. Rep. Hay. Rep. whereby they would be entitled to vote for members of parliament. 1067. i. and they believe it to be their duty to maintain the rights of their office.to be the refult of a view of all the cafes on the fubje&. Borough of Midhurft. Rep. So if there be a legal right. Term. A mandamus lies to ob- tain admiffion into a trading company. Turkey Company. portant in principle. legal remedy. 3 Term. The emoluments or thc dignity ' ' of the office. 5751 to deliver papers which concern the public. but it is im '. is now troubled with it. 3 Burrow." It is the general principle of law that a mandamus lies. 640. SUPREME COURT U. S. King v. Rex v. 64o-although there be a more tedious remedy. It only remains now to confider whether a mandamus to compel the delivery of a commiffion by a public mini- fterial officer. MARBupY This caufe may feem trivial at firft view. 4 Bur. 286. i. Sid. to commiffioners of the excife to grant a permit. are no objeds with the applicants. It lies to compel a minifterial aL which concerns the public. is one of " the cafes warranted by the prin- ciples and ufages of law. Rep. Ipeeiic. 1082. if there be no other adequate. was a mandamus to compel the prefentment of certain conveyances to purchafers of burgage tenements. 283. They conceive themfelves to be duly appointed juftices of the peace. 699 . BI.

At the laft term on tle affidavits then read and filed with the clerk. a peremptory mandamus is then awarded. 1 Siderfin. The procefs is as ancient as the time of Ed. he was a clerk in the department of flate. 2 Levinz. the court are bound to grant it. on that day. 14. tobe further confidered on MARBUSY thereturn. i I. of State. '-"€ 1265. and Robert r. MAP1SONq. If the applicant makes out a proper cafe. z Leviiz 123. requiring the fecretary of fRat to fhew caufe why a mandamus . 3. That there were in the office. it only commands the officer to do the thing or fhew caufe why he fbould not do it. Afterwards. IO43. Bur. They cai refufe juftice to no man. legal difcretion. but whofe return was not known to the applicant till after the argument of the cafe. 2d. x69. and before the court had given an opinion. who had been a clerk in the office of the Secretary. FEBRUARY. in the diftri&l of Columbia. not' an arbitrary will. 1803. On a fubfequent day. It lies to be admitted a member of a church.e- vinz 23. if not. Hooe a juftice of the peace for the county of Alexandria. a rule was granted in this cafe. there is an end of the proceeding. Mr. and had been to a diftant part of the United States. It fated that on the third of March. doubtful cafe. The firft writ of mandamus is not peremptory. on the 24 th of February the following opinion of the court was delivered by the chief juftice. appointing William Marbury a juftice of peace for the county of Wafhington . If the caufe returned be fufficient. commiffions made out and fAgned by the prefident. But the difcretion of a court always means a found. It is faid to be a writ of difcretion. Lee read the affidavit of Hazen Kimball. Opinion of the court. IV. 8oi.

require a complete expofition of the principles. ift Has the applicant a right. county of Waflhington. the faid counties. in the diftrid of Columbia. fuch num- ber of difcreet perfons to be juilices of the peace as the prefident of the United States fhall. from time to time. Has the applicant a right to the commiffion he de- mands ? His right originat s in an ad of congrefs paffed in February 8oi. to continue in office for five years. to the commiffion he demands? 2dly. do the laws of his country afford him a remedy ? 3dly. the following queflions have becen confidered and decid- ed. and that right has been violated. is founded. from the points flated in that. argued at the bar.4amus. and the real diffi. the i Ith fedion of this law. is it a mianda- mus iffluing from this court ? The firft obje& of enquiry is. SUPREME COURT U. culty attending the points which occur in it. on which the opi- nion to be given by the court. and the ptefent motion is for a man. In the order in which the court has viewed this fubje&. the novelty of fome of its circumftances. very ably. on the fide of the appli- cant. . MARBURY fhould not iffue. After dividing the diftri& into two counties. though not in fubfcaice. In rendering the opi- nion of the court. Thefe principles have been. there will be fome departure in form. The peculiar delicacy of this cafe. S. " that there fhall be ap- pointed in and for each of. No caufe has been fhewn. ift. concerning the diftri. argument. . think expedient. If they do afford him a remedy. of Columbia. If he has a'right. enats. direding him to deliver'to William V. Marbury his commiffion as a juftice of the peace for the MADISON.

. which. 1'to make out and record. The appointment. FEBRUARY. by and with the confent of the fenate.he fhall commiffion . by . that in compliance with MARUKIr- this law. fhall " appoint ambaffadors. after - which the feal of the United St ites wA-fixed to it. other public minifters and confuls. or by the Prefident alone. Which affe&t this part of the cafe. being completed. to be appointed by the Prefident. In order to determine whether he is entitled to this commiffion. 'The nomination. and is alfo a voluntary a&. trom the affidavits.'and with the advice and confent of the fenate. 2d. though it~can only be performed by and with the advice and confent of thle fenate.Unit-d States . and." Thefe are the claufes pf the conflitution and laws of the United States.all the officers of the United States. then prefident of the. 1803. that ". a commiffion for William Marbury as a juftice 0V. For if he has been ap- pointed. became his property. The 2d feaion of the 2d article of the conifitution. and he is entitled to the poffcffion of thofe evidences of Qffice. and is completely voluntary. This is alfo the at of the Pre- fident. whofe ap- " pointments are not otherwife ptovided for. declares. John Adams. and affix the faid feal to all civil commiffions to Officers of the United 'states. provided that the faid feal fhall not-be affixed to any commiffion before th*e fame hall have been figned by the Prefident of the United States. that. but the commiffion has never reached the perfon for whom it was made out. This is the fole aCk of the Pre- fident. was figned by Mvtsow. 1'the prefident (hall nominate.. It appears." An a& of congrefs direCts the fecretary of ifate to keep the feal of the United States." The third fe&ion declares. " and all other officers of the United States. of peace for the county-f Wafhington. the law continues him in office for five years. They feem to contemplate three diftin& operations: it. it becomes neceffary to enquire whetiher he has been appointed to the 6ffice.

Although that claufe of the conflitution which requires the Prefident to commiffion all the officers of the United States. Of confequence the confitutional diftin6tion between the ap- poirtment to an office and the commiffion of an officer. by adverting to that provifion in the fecond fedion of the fecond article of the conftitution." fays that inftru- ment. The commiffion. that. may never have been applied to officers appointed otherwife than by himfelf. remains the fame as if in prac- tice the Prfidet had commiffioned officers appointed by an authority other thanhis own. if an appointment was to be evidenced by any pub- lic ad. perfon appointed." thus contemplating cafes where the law may dire& the Prefident to commif- fion an officer appointed by the courts. duty diffiner from the appoint- ment. MARBURY 3 d. joined by the conflitution. . fuch cafes. perhaps. in the courts of law. or enable him to per- form the duties without it. the performance of which. as they think proper.'othLr than the commiffion. and commiffioning the perfon appointed. can fcarcly be confidered as one and the fame. in the Prcfident alone. It follows too. " He fhall. or by the heads of departments. would either give him a right to his commiffion. SUPREME COURT U. to iffue a commiffion would be apparently a. yet it would be difficult to deny the legiflative power to apply it to. who has been appointed. The diftintion between the appointment and the com- miffion will be rendered more apparent. and if he was not removeable at the will of the Prefident. S. To grant a commiffion to a IIV. which authorizes congrefs " to veft. or in the heads of departments . from the exiftence of this diftin6ion. In fuch a cafe. the appolitment of fuch inferior officers. the performance of fuch public at would create the officer . by law. " commiflion all the officers of the United States. could not legally be refufed. Th efe obfcrvaticns are premifed folely for the purpofe of rbndering more iiitelligible thofe which apply more dirce-ly tW the particular cafe under confideration. fince the power to peiform them is given in two feparate and diflindt fections of the conftitution. might perhaps be deemed a duty en- MAOsoN." The acts of appointing to office.

not removeable at his will. 1803. be taken when the power of -the executive over an officer. ftUll the commiffion is not neceffarily the appoint- ment . nomination. it being almoft impoffible to fhew an appoint. mull be completely evidenced. That point of time mufl be when the con- flitutional power of appointment has been exercifed. has been performed. frill it would be made when the laft ud to be done by the Prefident was performed. is the figna- thire of the commiffion. at furtheft. even be confidered as conftituting. and being the laft ad requireAt from the perfon making it. .a6ked on the ad- vice and confent of the fenate to his own. an inchoate and incomplete tranfadion. mull ceafe. ment otherwife than by proving the exiffence of a com- miffion. The time for deliberation has then paffed. and the officer'is appointed. . The appointment being the fole a& of the Prefident. and is evi. converting the department . fo far as refpeds the appointment. or. He has then. necellarily excludes the. vhen the commiffion was complete. unequivgcal a. His judgment. has been made. re- quired from the perfon poffeffing the power. when the ad paffed. This laft a& is the . idea of its beihg. the appointment itfelf . He has de- cided. This appointment is e'vi- denced by an open. by and MADBuIv with the advice and confent of tje fenate. though conclufive evidence of it. Some point of time mull. inftead of being evidence of an appointment.miffion. when it is ihewn that he has done every thing to be performed by him. IS7 This is an appointment made by the Prefident. And this power has been exercifed when the laf a&. The laft a& to be done by the Prefident.V - denced by no ad but the commiffion itfelf. This idea feems to have prevailed with the le- giflature. The anfwer to this queftion feems an obvious one.'fignature of the com. Should the commiffion. cafe therefore the commiffion and the appointment feem " infeparable. . In fuch a MADISo1i. IBut at what ftage does itamount to this conclufive evidence?. on the advice and confent of the fenate concurring with his nomination. FEBRUARY.

that the folemnity of affixing tfie feal. " to officers of the United States. bound to obey the laws. and the great feal is only to be affixed to an inftrument which is complete. and (hall affix the faid feal to all civil commiffion. He is to affix the feal of the United States to the commiffion. the verity of the Prefidential fignature. without the fpecial war- . and .'IV. taIs3uti of foreign affairs. to be appointed by the " Prefident :" " Provided that the faid real (hall not be af- it fixed to any commiffion. and not to be guided by the will of the Prefident. It is a miinifterial ait which the law enjoins on a particular officer for a particular pur- pofe. and in this he is an of- ficer of the United States. before the fame (hall have been "figned by the Prefident of the United States . and not by the in- ftruitions of the Prefident. be- caufe the fignature. IS& . He afts. but even to the completion of an appointment. If it. It attefts. This is not a proceeding which may be varied. The commiffion being figned.. is'neceffary not only to the validity of the com- miffion. into the-department of ftate. and is to be ftritly purfued. the fubfequent duty of the fecretary of ftate is prefcribed by law. feal of the United States. nor to " any other inftrument or atL. S.SUPREME CQURT U. is conclufive evidence. which gives force and effeit to the commiflion. under the authority of law. and is to re- cord it. a& it is ena&edi that the fecretary of ftate fhall keep the MDlssON. if the judgment of the executive fhall fuggeft one more eligible.fhould be fuppofed.that the appointment.rant of the Prefident therefor. It is never to be affixed till the commiffion is figned. By that . lill when the feal is affixed the appointment is made. g and ihall make odE and re- cord. is made. by an a& fuppofed to be of public notoriety. in this refpe&." The fignature is a warrant for affixing the great feal to the commiffion. as has been very properly ifated at the bar. ut is a precife courfe accurately marked out by law. It is the duty of the fecretary of ftate to conform to the law.

delivery is effential. This idea is founded on the fuppofition that the com- miffion is not merely evidence of an appointment. that the principle. It is not neceffary that the livery fhould be made perfonally to the grantee of the of- fice : It never is fo made. the executive cannot make one with- out the co-operation of others. none have been found which appear of fufficient force to maintain the op. court could fuggeft. they do not fhake the opinion which has been formed. a fuppofition by no means unqueftionable. If then the at of livery be neceffary to give validity to the commiffion. it has been conje&ured that the commiffion may have been affimilated to a deed. and after allowing them all the weight which it appeats poffible to givethem. Such as the imagination of the. certain folemnities are required by law. is eftablifhed. In confidering this queftion. 'perfon with his office. the commiffion is valid. by liw . and unlefs the appoint- ment be then made. which folemnities are the evidences . to the validity of which. no other a& is to be performed on the part of '. and tranfmitted to the party. FEBRUARY. But for the purpofe of examining this objeffion fairly. it has been delivered whin executed and given to the fecretary for the purpofe of being fealedi recorded. pofite dofrine. under the conftitution. muft be made by the Prefident alfo. fince it dire~ts the fecretary to affix the feal to the com- miffion after it fliall have been figned by the Prefident. government. claimed for its fupport. to be made by the Prefident perfonally.con- template that it (hould be made to the fecretary of Qrate. but is itfelf the atual appointment. the delivery of the deed of app6intment. No other folemnity is required MARUIT. have been very deliberately examined. let it be conceded. But in all cafes of letters patent. is done. The law would feem to. if neceffary to its completion. The appointment being. After fearching anxioufly for the principles on which a contraxy opinion may be fupported. 1o83. All that the executive'can do to inveft the MADISON.

In cafes of cormmiffions. ap- pointed to any office. but that a copy from the record of the office of the fecretary of ftate. but accident or fraud. The tranfmiffion of the commiffion. and that the appointment had been made. but. If it-was neceffary. and the accept- ance thereof. -the appointnent would not be the lefs valid on that account. The a&t of congrefs has exprefsly made it fo. not that the original had been tranfmitted.origiual had exifted. is a pra&ice di- redfted by convenience. 14AILBUIY of the validity of the inftrument. might deprive an individual of his office. fire or theft. A commif- fion is tranfmitted to a perfon already appointed. fhould himfelf take means to pro- cure his commiffion. it would nbt be neceffary to prove'that the original. and barely poffible. as . In fuch a cafe. the perfon is not among them. and the feal' of the S v -United States. S. had been tranf- mitted and afterwards loft. A formal delivery to . The appointment is the fole aa of the Prefident . and which is the mere aa of the Prefi- dent. or to mifcarry. to every intent and purpofe. MADISO. not to a perfon to be appointed or not. the tranfmiFi6n of the commiflon is the fole a& of the officer to whom that duty is afligned. It has alfo occurred as poffible. W.the letter enclofing the commiffion fhould happen to get into the poft-office and reach him in f~afety. whether thle pofefefion of the original commif- fion be indifpenfably ncceffary to authorize a perfon. might be deemed neceffary to complete the right of the"plaintiff. I prefume it could not be doubted. It cannot there- fore be' neceffary to coniltute the appointment which muft precede it. the fign manual of the Prefident. but not by law. would be. that the tranfmiffion of the commiffion. to enquire. equal to the original. then a lofs of the commiffion would lofe the office. The copy vould be com- plete evidence that the. and may be accelerated or retarded by circutnftances which can have no influence on the appointment. to perform the duties of that of- fice. Not only negligence. if indeed it fhould appear that . If the executive required that every perfon ap- pointed to an office. are t'ofe folmnities. To give that copy validity. It may have ome" tendency to elucidate this point. This obje&ion therefore does not touch the cafe. SUPREME COURT U.

v. That this is the underftanding of the government. is apparent from the whole tenor of its condud. and the order for that purpofe has been given.Orcan he refufe a copy thereof to a perfon demanding it on the terms prefcribed by law ? Such a copy would. the inftrument is. equally with the original. atteft his appointment. FEBRUARY. in plain'common fenfe. although the manual labour of inferting it in a book kept for that purpofe may not have been performed. the law orders the fecretary of ftate to record them. A copy of this record is declared equal to the original. As he may refign. The appointment is the fole a&t of the Prefident. erafe therefrom a commiffion which has been recorded? . When a per- fon. becaufe it would. not from the tranf- miffion or acceptance of his comnrion. and the fees. When all the requifites have been performed which au. they are in law recorded. If the tranfmiffion of a commiffion be not confidered as neceffary to give validity to an appointment. the acceptance is the fole acl of the of- ficer. z6X the original had been miflaid in the office of"fate. MADIsoW1 thoriae a recording Qfficer to record any intrument what-. refufes to accept that office. nor the other. and is. 1803. appointed to any office. lefs is its acceptance. and the fialary of the officer commences from his appointment. is capable of -rendering the appointment a non-entity. A commiffion bears date. in law.. to be paid by a perfon requiring a copy. When therefore they are figned and fealed. frill. eqially with the original. pofterior to the ap- pointment. authorize the j'uftice of peace to proceed in the performance of his duty. are afcertained by law. the order for their being recorded is given. confidered as recorded. Can a keeper of a public record. that MAINUuT circumftance would not affed the operation of the copy. and whether inferted in the book or not. the fucceffor is nominated in the place of the perfon who x . In the cafe of commiffions. ever. fo may he refufe to ac- cept: but neither the one.

This brings us to the fecond enquiry. then. It has conferred legal rights which cannot be refumed. by law. and not in the place of the perfos' V. and that the commiffion is com- plete. the appointment was not revocable. To withhold his commiffion. which are proteaed by the laws of his country. which is. the officer is not removeable by him. but veft- ed in the officer legal rights. the appointment is not revoca- ble. Mr. and that right has been violated. power of accepting or rejedting it. and the commiffion may be arrefted. But having once nmde the appointment. his power over the office is ter- minated in all cafes. independent of the executive. that when a commiffion has been figned by the Prefident. and fealed by the fecretary of ftate. 2dly. is an ad deem- ed by the court not warranted by law. gave the officer a right to hold for five years. The right to the office is then in the perfon appointed. But when the officer is not removeable at the will of the executive. SUPREME COURT U. Marbury. when the feal of the United States has been affix- ed to it by the fecretary of Rtate. the circumftance which completes his appoint- ment is of no concern . and he has the abfolute. original vacancy. Where an officer is rernoveable at the will of the ex- ecutive. the appointment is made. do the laws of hiscountry afford him a remedy? . and as the law creating the office. becaufe the ad is at any time revocable. uncondi- tional. If he has a right. The difcretion of the executive is to be exercifed un- til the appointment has been made. It is therefore decidedly the opinion of the court. $AaDL ua" has declined to accept. therefore. where. fince his commiffion was figned by the Prefident. and had created the MAbmsoW. who had been previoufly in office. S. and cannot be annulled. but violative of a vefted legal right. was appointed . if Rtill in the office.

and he never fails to. are for that very reafon. In purfuing this enquiry. 4 Y'- In Great Britain the king himfelf is fued in the refpecful form of a petition. and not of men. military. or maritime tribu- " nals.the firft queftion which prefents itfelf." And afterwards. whether this can be arranged . And herein I thall for "Cthe prefent only 4 emark.RtIIo the right of every individual. i09. comply with the judgment of his court. " In all other cafes.that right is invaded. that where there is a legal right. that did not fall within the exclufive cognizance " of either the ecclefiaftical. p. muft. there ii " alfo a legal remedy by fuit or aftion at law. FEBRUARY. that "every right. 03 The very effience of civil liberty certainly confifts in MA. One of the MADISON. he fays. or exclude the injured party from le- gal redrefs.. when withheld. that all poffible injuries whai- ic foever.. It behoves us then to enquire whether there be in its compofition any ingredient which Thall exempt it from legal inveftigation. within the cognizance "of the common law courts of juftice. the laws. if I " am next to confider fuch injuries as are cognizabli by cthe courts of the common law. is. Blackftone ftates two cafes in which a remedy is aforded by mere ope- ration of law. firft duties of government is to afford that prote~ion. If this obloquy is to be caft on the jurifprudence of our country." The government of the United States has been em- phatically termed a government of laws. of his commentaries.have a rediedy. In the 3d vol. if the lawq furnifh no remedy for the violation of a vefted legal right. p. for it is a fettled " and invariable principle in the laws of England. to claim the protefion of I. It will certainly ceafe to deferve this high appellation. whenever he receives an injury. 1803. it muft arife from the peculiar charaaer of the cafe." he fays. whenever c. "it is a general and indif- " putable rule. 23. of the fame vol. and "every injury its proper redrefs.

it is the. By the a& concerning invalids... all perfons whofe names are contain- ed in a report previoufly made by him' to coogrefs. *confltitites fuch a. in which an individual is interefted. the injured individual has no remedy. is not to be admitted. It is not then on account of the worthlefsnefs of the thing purfued. 3. entire confidence is placed by our conftitution in the fupreme executive. T12. the law is inca. as comp're- hending offices of trufi. 1v*' This defcription of cafes never has been confidered.cafe. that the injured party can be alleged to be without remedy. That there may be fuch cafds is not to be queftioned. belonging to the executive de- pariment alone. but that every a& of duty. and for any mifcondu& refpe&ing which. of damnnum abfque injuria-alofs without an injury. the theory. of this Principle will certainly never be main- .do fo. MADISON. The of- fice of juflice of peace in the difiri& of Columbia is fuch an office . to be performed in any of the great departments of government. would the wounded veteran be without remedy ? Is it to be contended that where the law in precife terms. S.fo far as the laws can give fecurity to the-perfon appointed to fill it. and it is believed never can be confidered. vol. SUPREME COURT U. Is it in the nature of the tranfadion ? Is the ad of delivering or withholding a comrpiffion to be confidered as a mere political a&.uiur with that clafs ot cafes which come under the defcription M. the fecretary at war is ordered to place on the penfion lift. for the performance of which. of honor or of profit. for five years. in June. It has been created by fpecial ad of congrefs. dirxs the performance of an ad. 1794. If he fhould refufe to .efore worthy of the attention and guardianfhbp of the laws. Atit. It has received that at- tention and guardianfhip. paffe4.' and has been fecured.. p. pable of fecuring obedience to its mandate ? Is it on account of the chara&er of the perfon againft whom the complaint is made ? Is it to be contended that'the heads of departments are not amenable to the laws of their country ? Whatever the pradice on particular occafions may be.

It follows then that the queftion. 255. p. By the conftitution of the United States. fhould refufe a copy of it. there muft be fome rule of law to guide the court in the exercife of its jurifdi&ion. MADISON. in matters of right. 299) the purchafer. P. for cc whom." By the a& paffed in 1796. can it be imagined that the law fur- nifhes to the injured perfon no remedy ? It isnot believed that any perfon whatever would attempt to maintain fuch a propofition. the prefident of the United States is authorifed to grant him a patent. vol. i 8o3. In fome . After flating that per. "but injuries cc to the rights of property can fcarcely be committed by " the crown without the intervention of its officers. and recorded in his office. the Prefident is' invefted with certain important political powerg. and on producing to the fecretary of ftate. authorifing the fale of the lands above the mouth of l(entucky river (vol. fonal injury from the ldng to a fubje& is prefumed to be impoffible. in the . and others not. 1 fpe& or delicacy. 3 d. nor can it derive countenance from the IV. but furtifhes various methods of de- " teding the errors and mifcondu& of thofe agents. muff always depend on the nature of that ad.but there cannot. No a& of the fegifiature confers fo extraordi. It is further enadted that all patents fhall be count6rfigned by the fecretary of ftate. the law.inftances there may be difficulty in applying the rule to particular cafes . MARBtRT nary a privilege. If the fecretary of ftate fhould choofe to withhold this patent . the receipt of the treafurer upon a certificate required by the law. whether the legality of an aCt of the head of a department be examinable in a court of juftice or not. Blackftone. 3. entertaihs no re. do&rines of the common law. it is believ- ed. tained. comes completely entitled to the property purchafed.. by "cwhom the king has been deceived and induced to do a "c temporary i. fays. on paying his purchafe money. be-.-juftice. If fome a&s be examinable. FEBRUARY. or the patent being loft. be much difficulty in laying down the rule.

The fubjeds are political. and individual rights depend upon the performance of that duty. fiill there exifts. accountable only to his country in his political chara&er. when he is direted peremptorily to perform certain ats . it feems equally clear that the individual who confiders himfelf injured. can never be exa- minable by the courts. the decifion of the executive is conclufive. who ad by his authority and in conformity with his orders. The a&s of fuch an officer. he is authorized to appoint certain officers. But when the legiflature proeeeds to impofe on that officer other duties. The conclufion from this reafoning is. he is fo far the ofFicer of the law . and cannot at his difcretion fport away the vefted rights of others. not individual rights. their ads are his ads . is amenable to the laws for his coDdu6 . SUPREME COURT U. If this be the rule. or rather to ad in cafes in which the exe- cutive poffeffes a conftitutional or legal difcretion. and whatever opinion may be entertained of the manner in which exe- cutive difcretion may be ufed. and is 'V. has a right to re- fort to the laws of hi's country for a remedy. and to his own confcience. that where the heads of departments are the political or confidential agents of the executive. merely to execute the will of the Prefident. when the rights of individuals are dependent on the performance of thofe a6s . and can exift. as his duties were prefcribed by that ad. as an officer. is to conform precifely to the will of the Prefident. 5. In fuch cafes. They refped the nation. This officer. let us enquire how it applies to the cafe under the confideration of the court. MARBUxY exercife of which he is to ufe his own difcretion. MADISON. . nothing can be more perfedly clear than that their ads are only politically examinable. He is the mere organby whom that will is communicated. and being entrufted to the executive. To aid him in the perform- ahce of thefe duties. But where a fpecific duty is af- figned by law. The application of this remark will be perceived by adverting to the a& of con- grefs for eftablifhing the department of foreign affairs. no power to control that difcretion.

If. The queftion whether a right has vefted or not. V. Marbury had taken the oaths of a magiffrate.MA PBU RY er of appointing the perfon nominated. ers. he has a legal right.so N. and evidenced. in confe- quence of which a fuit had been infiituted againft him. and the decifion of the court upon it muft depend on the opinion enter- tained of his appointment. the validity of his appointment muft have been determined by judicial authority. ift. and confequently if the of- ficer is by law not removable at the will of the Prefident . But as a fa& which has ex- ifted cannot be made never to have exifted. are political pow. 167 The power of nominating to the fenate. If. he has made an appointment. judicial. then a new ap- pointment may be immediately made. is. for example. that the lateft point of time which can be taken as that at which the appointment was complete. Marbury. the prefident of the United States appointed him'ajuftice . FEBRUARY. in its nature. the officer be removable at the will of the Prefident. and he has the privi- lege of afferting them ih like manner as if they had been derived from any other fource. was when. difcretion. 1803. he has '-v'-- exercifed his whole power. and muft be tried by the judicial autho- rity. That by figning the commiffion of Mr. They cannot be ex- tinguifhed by executive authority. and are not refumable by the Prefident. after the fignature of the prefident. That queftion has been difcuffed. eithe to the commiffion which has been made out for him. When. and the rights of the officer are terminated. the appoint- ment cannot be annihilated . by law. it is equally a queftion examinable in a court. the rights he has acquired are protected by the law. in which his defence had depended on his being a magif- trate . Mr. the feal of the United States was affixed to the commiflion It is then the opinion of the court. and the opinion is. and proceeded to aft as one . or to a copy of that commiffion. and his difcretion has been completely applied to the cafe. to be exerifed by the Prefident according to his own MAD. and the pow. by virtue of his appointment. if he conceives that. So.

The nature of the writ. ift.WWhenevir. and of the com- pletion of the appointment . to be confonant to right cc and juftice.V. is conclufive tef- 'timony of the verity of the fignature. to the commiffion .quiring them to do fome particular thing therein fpeci- c fled. defines a mandamus to be. This depends on. et al. af- MAD ToN. corporati n. " a command if- cc Cuing in the king's name from the court of king'6 bench. or at leaf fuppofes. That. Blackftone. The nature of the wriE applied for. perform a fervice. and that the feal of the United States. Baker.and . for the county of Wafhington in the diftri& . or inferior " court of judicature within the king's dominions. he has a confequent right. or exercife cc a franchife (more efpecially if it be in a matter of pub- cc lic. re- . having this legal title to the office. in 3 d Burrows 1266. in the 3 d volume of his commentaries. which appertains to their office and duty. fixed thereto by the fecretary of ftate. It remains to be enquired whether. 2dly. SUPREME COURT U." fays that very able judge. The power of this court. of Columbia .and dire&ed to any perfon. . fates with much precifion and ex- plicitnefs the cafes in which this writ may be ufed. page i 1o. MARDURY of peace. or attended with -profit) and a perfon is is kept out of poffeffion. is a plain violation of that right. in the cafr of the King v. . concern. and "which the court of king's bench has previoufly deter- cc mined.. and that the appointment conferred on him a legal right to the office for the fpace of five years. ift. and. 3dly. or difpoffeffed of fuch right. He is entitled to the remedy for which he ap- plies. 2dly. " there is a " right to execute an office. S.." Lord Mansfield. a re fufal to deliver which. for which the laws of his country afford him a remedy..

in this cafe. Thefe circumftances certainly concur in this cafe. ift. This writ. 1803. "9to affift by mandamus. this court ought MAkBUIL-. to which claims it is the duty of that court to attend j fhould at firft view be confidered . and its mandate to him would be. and excites fome hefitation with refpe& to the propriety of entering into fuch inveftigation. Still. has a right to execute an office of pub- lic concern. as the IV. "9preferve peace. to MADISON. With refpe& to the officer to whom it would." In the fame cafe he fays. by an individual. to be confonant to right and juf- "ctice. cc or at leaft fuppofes. neceffarily renders any legal inveftigation of the aks of one of thofe high officers peculiarly irkfome. Im- preffions are often received without much reflefion or examination. which appertains to his office and "c duty and which the court has previoufly determined. "this writ ought to be ufed upon all "4occafions where the law has eftablifhed no fpecific "c remedy. the officer to whom it is to be direed.' fubfifting be- tween the prefident of. of his legal claims in a court of juftice." Or. and it is not wonderful that in fuch a cafe as this. to ufe the words of Blackftone. and upon reafons of public policy. fuch writ may be direted . as well as delicate. muft be one to whom. 169 V has no other fpecific legal remedy. the appli- cant.I direaed. upon reafons of juftice. and where in juftice and good government "9there ought to be one. many others were relied on at the bar." In addition to the authorities now particularly cited. and the perfon applying for it muft be without any other fpecific and legal remedy. the United States and the heads of departments. in the words of Lord Mansfield. The intimate political relation. FEBRUARY. if awarded. on legal principles. the affertion. "9writ expreffes. and is kept out of poffeffion of that right. " to do a particular thing " therein fpecified. which fhow how far the praalice has conformed to the general dotrines that have been juft quoted. would be direded to an officer of government. government. order and good. to render the mandamus a proper remedy.

it is . in which executive difcretion is to be exercifed . perform duties in which they have a difcretion. could not have been entertained for a moment. which fhall bar a citizen from afferting. but the nature of the thing to be done that the propriety or impropriety of iffuing a mandamus. How then can his office exempt him from this particular mode of deciding on the legality of his condu&. or which are. ' It is fcarcely neceffary for the court to difclaim all pre- tenfions to fuch a jurifdiaion. But. authorize the procefs ? It is nt by the office of the perfon to whom the writ is dire&ed. as an attempt to intrude into the cabinet. it cannot be pretended that his office alone exempts him from being fued in the ordinary mode of proceeding. if the cafe be fuch a cafe as would. direking the performance of a duty. and to IV. if this be not fuch a queftiori . by which an individual fuftains an injury. if it be no intermeddling with a fubje&. bMABvURY by fome. over which the executive can be confidered as having exercifed any control . in which he is the mere organ of executive will . ind to a copy of which the law gives a right. in a court ofjuftice. is upon record. not depending on executive diferetion. QOeftions. or executive officers. to decide on the rights of individuals. Thr province of the court is. S. ly the conftitution and laws. or to iffue a mandamus. not to enquire how the exe- cutive. An extravagance. SUPREME COURT U. what is there in the exalted tation of the officer. but on particular a&s of congrefs and the general principles of law? If one of the heads of departments commits any ille- gal a&. folely. MADISON. intermeddle with the prerogatives of the executive. fubmitted to the executive. can never be made in this court. it re- fpe~ls a paper. fo ab- furd and exceffive. and being compelled to obey the judgment of the law. were 'any other individual the party complained of. according to law. which. Where the head oI*a department aas in a cafe. or fhall for- bid a court to liften to the claim . is to be determined. under color of his office. his legal rights. if fo far from being an intrufion into the fecrets of the cabinet. on the pay- ment of ten cents . in their nature political.

It muft be well recollected that in 1792. but fome of the judges. which adt. in fuch cafes. was a legal queftion. for the firft time. was deemed unconflitutional. hefitation. 180 3. that any application to a 'court to control.M so. than if the fame fervices were to be perform. although the acd of placing fuch perfons on the lift was to be performed by the head. of a department. in conjundion with the attorney gene- . but the queftion whether thofe perfons. to be taken up inthis country. or to give a -copy of fuch record . This opinion feems not now. 17. and a different fyftem was eftablifhed. again repeated. which has re- ceived all the legal folemnities . an a& pafted. in confequence of that report. and therefore is never prefumed to . and tlhe performance of which. to take fuch meafures.al. that right be done to an injured individual. That this queftion might be properly fettled. by the circuit courts. directing the fecretary at war to place on the penfion lift fuch difabled officers and foldiers as fhould be reported to him. 1793. his cordu&. would be rejeaed without r. thinking that the law might be executed by them in the charader of commiffioners. as commiffioners. it is not perceived on what ground the cburts of the country are further excufed from the duty of giving judgment. ance of which he is not placed under the particular di- redion of the Prefident.. or a patent for land. to be placed on the penfion lift. in the perform. This law being deemed unconftitutional at the circuits. was repealed. who had been re- ported by the judges. But where he is direCted by law to do a certain ad af- fe&ing the abfolute rights of individuals. as might be neceffary to obtain an adjudication of the fupreme court of the United .have forbidden. the Prefident cannot lawfully forbid. ed by a perfon not the head of a department. to record a commiffion. FEBRUARY. were entitled. properly determinable in the courts. as for example. fo far as the duty was impofed on the courts. MAItBuR inany rcfpe&. making it the duty of the fecretary of war. congrefs paffed an a& in February. pro- ceeded to ad and to report in that charaaer.

~v~'After the paffage of this a&. in order to place themfelves orl the peifion lift. from which he is not removable at the will of the executive . much reafon to believe. is underftood to have de- cided the merits of all claims of that defcription. When the fubjeHl was brought before the court the de- cifion was. the a& aforefaid. now advanced. SUPREME COURT U. and being fo . claimed under v. in the performance of which an individual had a vefted intereft . of which the executive cannot deprive him. now moved for. on which fubjeS the afts of Congrefs are filent. is by no means a novel one. to that commiffion. and by the higheft law officer of the United States. a perfon ftating himfelf to be on the report of the judges. to be direc&ed to the fecretary at war. S. a mandamus was movea for. the moft proper which could be felected-for the purpofe. The judgment in that cafe. a vefted legal right. that this mode of trying the legal right of the complainant. Tlhis difference is not con- fidered as affe~ting the cafe. direffing him to perform an aC. MAl1URY States on the validity of any fuch rights. He has been appointed to an office. The doctrine. is not for the peiformance of an aCt exprefsly enjoined by ftatute. and the perfons on the report of the commiffioners found it neceffary to purfue the mode prefcribed by the law fub- fequent to that which had been deemed unconftitutional. It is to dpliver a commiffion . was deemed by the head of a department. but that a mandamus ought not to iffue in that cafe-the decifion neceffarily to be made if the re- port of the commiffioners did not confer on the appli- cant a legal right. not that a mandamus would not lie to the head of a department. MADISON. It is true that the mandamus. therefore. commanding him to place on the penfion lift. It has already been ftated that the applicant has. enjoin- ed by law. therefore. There is.

He will obtain the office by obtaining the com- miffion. but it is placed in his hands '*Y for the perfon entitled to it. and if this court is not authorized to. It was at firft doubted whether the a~tion of detinue was not a fpecific legal remedy for the commifflon which has been withheld from Mr. or to nothing. The value of a public office not to be fold. The a& to eftabli{h the judicial courts of the United States authorizes the fupreme court " to iffue writs of " mandamus. :and it only remains to be enquired. in cafes warranted by the principles and " ufages of law. being a perfon holding an office under the authority of the United States. This. than by any other perfon. either to deliver the commi~fion. Whether it can iffue from this court. from time to time. The conftitution vefts the who]. it muft be becaufe the law is unconflitutional. may be exercifed over the prefent . in fome form. is a plain cafe for a mandamus. in which cafe a mandamus would be improper. and therefore abfolutely incapable of conferring the authority. and cannot be more law- fully withheld by him. of ftate to: fend it to him. and confe- quently. or its value. But this doubt has yielded to the confideration that the judgment in detinue is for the thing itfelf.judicial power of the United States in one fupreme court. and fuch inferior courts as congrefs fhall. or a copy of it from the record. unde. he has a right to the commiffion which the MARDURY fecretary has 'received from the prefident for his ufe. then. is precifely within the letter of the defcription . ordain and efta- blifh. Marbury . FEBRUARY." The fecretary of ftate. to aipy courts appointed. iffue a writ of mandamus to fuch an officer.r"ie authority of the United States. is incapable of being afcertained . V. This power is exprefsly extended to all cafes arifing under the laws of the United States . The a& of congrefs does not indeed order the fecretary MADISON. and the applicant has a right to the office itfelf. 1803. or perfons hold " ing office. and affigning the duties which its words purport to confer and affign. appointed. or a cqpy of it from the record.

contains no negative or rctlri&ive words . MADISON. to the fupreme and inferior c urts&. and original jurifdidion where the conftitu- tion has declared it fhall be appellate . is form without fubftance. S. SUPREME COURT U. . and the tribunals in which it fhould be vefted. at the bar. and the claufe. made in the conftitution. provided thofe cafes belong to the judicial power of the United States. affigning original jurifdi&ion to the fupreme court. where the conftitution has declared their jurifdi6ion fhall be original. to 0flign original jurifdi&ion to that court in other cafes than thofe fpecified in the article which has been recited . and thofe in which a ftate fhall be a party. If it had been intended to leave it in the difcretion of the legiflature to apportion the judicial power between the fupreme and inferior courts according to the will of that body. Affirmative words are often. unlefs the words require it. that as the original grant of jurifdiition. a negative or exclufive fenfe muft be given to them or they have no operation at all. if fuch is to be the conftru6lion. and therefore fuch a conftruaion is inadmiffible." It has been infifted. is general. It cannot be prefumed that any claufe in the confti- tution is intended to be without effe&t . nega- tive of other obje&s than thofe affirmed . other public minifters and " confuls. If congrefs remains at liberty to give this court appellate jurifdi&ion. the fupreme court fhall have appellate 4c jurifdi&ion. the diftribution of jurifdidion. ~v'In the diftribution 9f this power it is declared that (( the " fupreme court fhall have original jurifdi&ion in all " cafes affeding ambaffadors. is entirely without meaning. The fubfequent part of the fe&ion is mere furpluffage. becaufe the right claimed is given by a law of the 'V. "In all other cafes. MALuRT cafe . the power remains to the legiflature. it would certainly have been ufelefs to have proceed- ed further than to have defined the judicial power. in their operation. United States. and in this cafe.

is in effet the fame as to fuftain an original a~tion for that paper. with fuch exceptions ae congrefs might make. therefore. and therefore feems not to be!ong to . It has been flated at the bar that the appellate jurif- diction may be exercifed in a variety of forms. late. as to define the jurifdi&ion of the fupreme courf- by declaring the cafes in which it fihall take original jurifm. refpeaing our peace MARDBUIr with foreign powers. x83. be direcded to courts. a mandamus -may. or to be neceffary to enable them to exercife appellate jurifdic- tion. Although. -divides it into one fupreme. and for adhering to their obvious meaning. andnot appel. and proceeds fo far to diftribute them. yet the jurifdiCion muft be appellate. might be fuppofed to affe& them . and that in others it Thall take appellate jurifdic- tion . FEBRUARY. This is true. To enable this court then to iffue a mandamus. if no further reftri&ion on the powers of congrefs had been intended. and does not create that caufe. It is the effential criterion of appellate jurifdi&ion. the plain import of the words feems to be. that will muft be obeyed. yet to iffue fuch a writ to an officer for the delivery of a pa- per. When an inftrument organizing fundamentally a judi- cial fyftem. di&ion. That they fhould have appellate jurifdi&ion in all other cafes. not original. that in one clafs of cafes itsjurifdi&ion is original. and fo many infe- rior courts as the legiflature may ordain and eftablifh. If the folicitude of the convention. unlefs the words be deemed exclufive of origirlal jurifdiaion. induced a provifion that the fupreme M. then enumerates its powers. yet the claufe would have proceeded no further than to provide for fuch cafes. in the other it is appellate. it muft be fhewn to be an exercife of appellate jurifdi&ion. and that if it be the will of the legiflature that a mandamus flould be ufed for that purpofe. and not original. that it revifes and correts the proceedings in a caufe al- ready inftituted. court fhould take original jurifdi&ion in cafes which MAIsoN. If any other conftruaion would render the claufe inopera- tive. that is an additional reafon for reje&ing fuch other conftru&ion. is no reftri&ion .

nor can it. It feems only neceffary to recognife certain principles. MAARtBURT appellate. neceffary in fuch a cafe as this. be paired by thofe intended to be reftrained ? The diftindion. nor ought it to be frequently repeat- ed. and limited and that thofe limits may not be miftaken. or eftablifh certain limits not to be tranfcended by thole departments. in their opi- nion. to enable the court to MADISO . Neither is it 'r. S. if thefe limits may. can become the law of the land. therefore. fuppofed to have been long and well eftablifhed. The principles. The powers of the legiflature are defined. To what pur- pofe are powers limited. fhall moft conduce to their own happinefs. whether an a&. and it becomes necefirv to eniquire whether a jurifdiffion. The quef ion. to decide it. is a queftion deeply interefting to the United States. between a government with limited and unli- mited powers. is the bafis. That the people have an original right to eftablifli. on which the whole American fabric has been erewed. fuch principles as. and can feldom at. for their future government. and to what purpofe is that limi- tation committed to writing. is fupreme. repugnant to the confli- tution.to different departments. they are defigned to be permanent. are deemed fundamental. exercife its appellate j urifdic ion. at any time.. The exercife of this original right is a very great exertion . can be exercifed. This original and fupreme will organizes the govern- ment. fo conferred. And as the authority. SUPREME COURT U. but to original jurifdicftion. the conftitution is written. The authority. and affigns. happily. by the a& eftablifhing the judicial courts of the United States. to iffue writs of mandamus to public officers. or forgotten. ap- pears not to be warranted by the confitution . fo eftablifhed. given to the fupreme court. their refpetive powers. is abolifhed. therefore. It may either ftop here . The government of 'the United States is of the latter defcription. if thofe limits do not confine the perfons on whom they are impofed. and if aCts pro- . but. not of an intricacy proportioned to its intereft. from which they proceed.

does it conflitute a rule as operative as if it was a law ? This would be to overthrow in fad what was efabfiifhed in-theory. or. and is confequently to be confidered. are of equal obliggtlon. that the conifitution . however. paramount law. or it is on a level with ordi- nary legiflative a&s. that the MADISON. muft of necefity expound and interpret that rule. is void. notwithfhanding its invalidity. repugnant to the Conftitu- tion. It is not therefore to be loft fight of in the further confidera- tion of this fubjt&. controls any legiflative a& repugnant to it . an abfurdity too grofs to be in-' fifted on. If the former part of the alternative be true. then written conflitutions are ab- furd attempts. and obiige them to give it effed ? Or. receive a more attentive confideration. to limit a pow- er. on the part of the people. If an ad of the legiflature. Thofe who apply the rule to particular cafes. If two laws conflid with each *ther. un- changeable by ordinary means. is alterable when the legiflature fhall pleafe to alter it. The conititution is either a fupcrior. and like othcr ads. then a legiflative ad contrary to the conflitution is not law : if the latter part be true. It is emphatically the province and duty of the judicial department to fay what the law is. at firft view. It is a M0ARut propofition too plain to be contefted. repugnant to the conftitucion. is void. by this court. 177 hibited and ads allowed. and confequently the the- ory of every fuch government nuft be. Between thefe alternatives there is no middle groune.. in its own nature illimitable. FEBRUARY. Certainly all thofe who have framed writtefi conftitu- tions contemplate them as forming the undamental and paramount law of the nation. It 'hail. in other words.' This theory is effcntially attached to a written confti- tution. does it. z . and would feem. 1803. that an ad of the legiflature. though it be not law. legiflature may alteN the conftitutiou by an ordinariy a&. the courts muft decide on thr operation of each. bind the courts. as one of the fundamental principles of our fociety.

as a paramount law. in America. muff govern the cafe to which they both apply. It would declare that an ad. fuch a&. This dodrine would fubvert the very foundationi of all written conftitutions. improvement on political inftitutions-a written conftitution-would of itfelf be fufficient. difregarding the law. Thofe then who controvert the principle that the con- Ritution is to be confidered. where written conititutions have been viewed withfo much reverence. and declaring that thofe limits may be paffed at pleafure. . It would be giving to the legiflature a practical and real omnipo- tence. and not fuch ordinary ad. is yct. and the conftitution is fuperior to any ordinary adlt of the legiflature. MABuPT So if a law be in oppofition to the conifitution . notwithftanding the exprefs prohibition. SUPREME COURT U. with the fame breath which profeffes to reftrid their powers within narrow limits. completely obligatory. This is of the very effence of judicial duty. and fee only the law. The judicial power of the United States is extended to all cafes arifing under the conftitution. if 'u. It would declare. That it thus reduces to nothing what we have deemed the greateft. the court muff determime which of thefe confliding rules governs the cafe. It is preferibing li- mits.. is in reality effedual. 'formably to the law. S. for rejeding the conftrudion. or conformably to the conifitution.ON. that if the legiflature (ball do what is exprefsly forbiden. which.' the conftitution. is entirely void. in pradice. both the law and the conflitution apply to a particular M cafe fo that the court muff either decide that cafe con- oT. difregarding the conftitution . in court. according to the principles and theory of our go- vernment. But' the peculiar expreffions of the conflitution of the United States furnifh additional arguments in favour of its rejedion. If then the courts are to regard the conflitution . are reduced to the neceffity of maintaining that courts muff clofe their eyes on the conftitution.

1803. the conftitution (hould not -T. fuch a bill 1hould be paired and a perfon fhould be profecuted under it . that the framers of the confti- . It prefcrit)es. That a cafe arifing under the conftitu. and only fee the law." fays the conftitution.. fufficient for convilion. or of flour. under which it arites-? This istoo extravagant to be maintained. or to obey? There are many other parts of the conititution which ferve to illuftrate this fubje&. 179 Could it be the intention of thofe who gave this pow. "(hall be convi&ed " of treafon unlefs on the te~fimony of two witneffes to "cthe fame overt aa. muft the conftitutional principle yield to the legiflative a& ? From thefe. and many other feleaions which might be made. however. of tobacco. and declare one witnefs. In fome cafes then. If the legiflatur¢ Thould change that rule." Here the language of the conftitution is addreffed efpe- cially to the courts. or a con- feffion out of court. it is apparent. FEBRUARY.no tax or duty fhall be laid on arti- " cles exported from any ftate. muff the court condemn to death thofe viffims whom the conititution endeavours to preferve ? " No perfon." If. what part of it are they forbidden to read. MAlnULr er. - It is declared that." Suppofe a duty on the export of cotton. The conifitution declares that " no hill of attainder or " exp/fao law (hall be paired. the conftitution muft be looked in- to by the judges. be looked into . direaly for them. And if they can open it at all. Ought judgment to be rendered in fuch a cafe ? ought the judges to clofe their eyes on the conftitution. to fay that. a rule of evidence not to be departed from. in ufing it. and a fuit in- ftituted to recover it. or on confeffion in open court. !VAD SON tion fhould be decided without examining the inftrument.

vernment of courts. It is alfo not entirely unworthy of obfervation. have that rank. or to take this oath. and the knowing inftrumepts. SUPREME COURT U. as well as of the legiflature. S. and that rourts. the conftitution is void . be- comes equally a crime. It' is in thefe words. this is worfe than tolemn mockery. if they were to be ufed as the inftruments. for .vio- lating what they fwear to fupport ! rhe oath of office. as well as other departments. and do equal right to the poor and to the "rich . and that I will faithfully and impartially difcharge CC all the duties incumbent on me as accord- " ing to the beft of my abilities and underftanding. the particular phrafeology of the conftitution of the United States confiris and ftrengthens the principle. impofed by the legiflature. if that confti- tution forms no rule for his government ? if it is clofed upon him. Thus. but thofe only which fhall be made in purfuance of the conftitution. agree- "ably-to the confitution." Why does a judge fwear to difchargc his duties agrea- bly to the conftitution of the United States. . is completely demonftrative of the legiflative opinion on this fubjei. too. R4ARtSURY tution contemplated that inftrument. in an efpecial manne . *'Why otherwife does it dired the judges to take an oath to fupport it ? This oath certainly applies. 'The rule muftobe difcharged. and laws of the United States. To prefcribe. " I do folemnly " fwear that I will adminifter juftice without refpe& "to perfons. are bound by that inftrument. and not the laws of the United States generally. to their condut in their official charater. and cannot be infpeaed by him ? If fuch be the real flate of things. as a rule for the go- v. that a law repugnant to. •MA0I 'O N. the eonj/itution itfelf is firft mentioned .. How immoral to impofe it on them. fuppofed to be effential to all written conftitutions. that in declaring what fhall be the fupreme law of the land.