U.S. Supreme Court
MARBURY v. MADISON, 5 U.S. 137 (1803)
5 U.S. 137 (Cranch)
JAMES MADISON, Secretary of State of the United States.
February Term, 1803
AT the December term 1801, William Marbury, Dennis Ramsay, Robert
Townsend Hooe, and William Harper, by their counsel [5 U.S. 137,
138] severally moved the court for a rule to James Madison,
secretary of state of the United States, to show cause why a mandamus
should not issue commanding him to cause to be delivered to them
respectively their several commissions as justices of the peace in the
district of Columbia.
This motion was supported by affidavits of the following facts: that
notice of this motion had been given to Mr. Madison; that Mr. Adams,
the late president of the United States, nominated the applicants to
the senate for their advice and consent to be appointed justices of the
peace of the district of Columbia; that the senate advised and
consented to the appointments; that commissions in due form were signed
by the said president appointing them justices, &c. and that the
seal of the United States was in due form affixed to the said
commissions by the secretary of state; that the applicants have
requested Mr. Madison to deliver them their said commissions, who has
not complied with that request; and that their said commissions are
withheld from them; that the applicants have made application to Mr.
Madison as secretary of state of the United States at his office, for
information whether the commissions were signed and sealed as
aforesaid; that explicit and satisfactory information has not been
given in answer to that inquiry, either by the secretary of state, or
any officer in the department of state; that application has been made
to the secretary of the senate for a certificate of the nomination of
the applicants, and of the advice and consent of the senate, who has
declined giving such a certificate; whereupon a rule was made to show
cause on the fourth day of this term. This rule having been duly
served-- [5 U.S. 137, 139] Mr. Jacob Wagner and Mr. Daniel
Brent, who had been summoned to attend the court, and were required to
give evidence, objected to be sworn, alleging that they were clerks in
the department of state, and not bound to disclose any facts relating
to the business or transactions of the office.
The court ordered the witnesses to be sworn, and their answers taken in
writing; but informed them that when the questions were asked they
might state their objections to answering each particular question, if
they had any.
Mr. Lincoln, who had been the acting secretary of state, when the
circumstances stated in the affidavits occurred, was called upon to
give testimony. He objected to answering. The questions were put in
The court said there was nothing confidential required to be disclosed.
If there had been, he was not obliged to answer it, and if he thought
any thing was communicated to him confidentially he was not bound to
disclose, nor was he obliged to state any thing which would criminate
The questions argued by the counsel for the relators were, 1. Whether
the supreme court can award the writ of mandamus in any case. 2.
Whether it will lie to a secretary of state, in any case whatever. 3.
Whether in the present case the court may award a mandamus to James
Madison, secretary of state.
[5 U.S. 137, 153]
Mr. Chief Justice MARSHALL delivered the opinion of the court.
At the last term, on the affidavits then read and filed with the clerk,
a rule was granted in this case, requiring the secretary of state to
show cause why a mandamus [5 U.S. 137, 154] should not
issue, directing him to deliver to William Marbury his commission as a
justice of the peace for the county of Washington, in the district of
No cause has been shown, and the present motion is for a mandamus. The
peculiar delicacy of this case, the novelty of some of its
circumstances, and the real difficulty attending the points which occur
in it, require a complete exposition of the principles on which the
opinion to be given by the court is founded.
These principles have been, on the side of the applicant, very ably
argued at the bar. In rendering the opinion of the court, there will be
some departure in form, though not in substance, from the points stated
in that argument.
In the order in which the court has viewed this subject, the following questions have been considered and decided.
1. Has the applicant a right to the commission he demands?
2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
3. If they do afford him a remedy, is it a mandamus issuing from this court?
The first object of inquiry is,
1. Has the applicant a right to the commission he demands?
His right originates in an act of congress passed in February 1801, concerning the district of Columbia.
After dividing the district into two counties, the eleventh section of
this law enacts, 'that there shall be appointed in and for each of the
said counties, such number of discreet persons to be justices of the
peace as the president of the United States shall, from time to time,
think expedient, to continue in office for five years. [5 U.S. 137,
155] It appears from the affidavits, that in compliance
with this law, a commission for William Marbury as a justice of peace
for the county of Washington was signed by John Adams, then president
of the United States; after which the seal of the United States was
affixed to it; but the commission has never reached the person for whom
it was made out.
In order to determine whether he is entitled to this commission, it
becomes necessary to inquire whether he has been appointed to the
office. For if he has been appointed, the law continues him in office
for five years, and he is entitled to the possession of those evidences
of office, which, being completed, became his property.
The second section of the second article of the constitution declares,
'the president shall nominate, and, by and with the advice and consent
of the senate, shall appoint ambassadors, other public ministers and
consuls, and all other officers of the United States, whose
appointments are not otherwise provided for.'
The third section declares, that 'he shall commission all the officers of the United States.'
An act of congress directs the secretary of state to keep the seal of
the United States, 'to make out and record, and affix the said seal to
all civil commissions to officers of the United States to be appointed
by the president, by and with the consent of the senate, or by the
president alone; provided that the said seal shall not be affixed to
any commission before the same shall have been signed by the president
of the United States.'
These are the clauses of the constitution and laws of the United
States, which affect this part of the case. They seem to contemplate
three distinct operations:
1. The nomination. This is the sole act of the president, and is completely voluntary.
2. The appointment. This is also the act of the president, and is also
a voluntary act, though it can only be performed by and with the advice
and consent of the senate. [5 U.S. 137, 156] 3. The
commission. To grant a commission to a person appointed, might perhaps
be deemed a duty enjoined by the constitution. 'He shall,' says that
instrument, 'commission all the officers of the United States.'
The acts of appointing to office, and commissioning the person
appointed, can scarcely be considered as one and the same; since the
power to perform them is given in two separate and distinct sections of
the constitution. The distinction between the appointment and the
commission will be rendered more apparent by adverting to that
provision in the second section of the second article of the
constitution, which authorises congress 'to vest by law the appointment
of such inferior officers as they think proper, in the president alone,
in the courts of law, or in the heads of departments;' thus
contemplating cases where the law may direct the president to
commission an officer appointed by the courts or by the heads of
departments. In such a case, to issue a commission would be apparently
a duty distinct from the appointment, the performance of which perhaps,
could not legally be refused.
Although that clause of the constitution which requires the president
to commission all the officers of the United States, may never have
been applied to officers appointed otherwise than by himself, yet it
would be difficult to deny the legislative power to apply it to such
cases. Of consequence the constitutional distinction between the
appointment to an office and the commission of an officer who has been
appointed, remains the same as if in practice the president had
commissioned officers appointed by an authority other than his own.
It follows too, from the existence of this distinction, that, if an
appointment was to be evidenced by any public act other than the
commission, the performance of such public act would create the
officer; and if he was not removable at the will of the president,
would either give him a right to his commission, or enable him to
perform the duties without it.
These observations are premised solely for the purpose of rendering
more intelligible those which apply more directly to the particular
case under consideration. [5 U.S. 137, 157] This is an
appointment made by the president, by and with the advice and consent
of the senate, and is evidenced by no act but the commission itself. In
such a case therefore the commission and the appointment seem
inseparable; it being almost impossible to show an appointment
otherwise than by proving the existence of a commission: still the
commission is not necessarily the appointment; though conclusive
evidence of it.
But at what stage does it amount to this conclusive evidence?
The answer to this question seems an obvious one. The appointment being
the sole act of the president, must be completely evidenced, when it is
shown that he has done every thing to be performed by him.
Should the commission, instead of being evidence of an appointment,
even be considered as constituting the appointment itself; still it
would be made when the last act to be done by the president was
performed, or, at furthest, when the commission was complete.
The last act to be done by the president, is the signature of the
commission. He has then acted on the advice and consent of the senate
to his own nomination. The time for deliberation has then passed. He
has decided. His judgment, on the advice and consent of the senate
concurring with his nomination, has been made, and the officer is
appointed. This appointment is evidenced by an open, unequivocal act;
and being the last act required from the person making it, necessarily
excludes the idea of its being, so far as it respects the appointment,
an inchoate and incomplete transaction.
Some point of time must be taken when the power of the executive over
an officer, not removable at his will, must cease. That point of time
must be when the constitutional power of appointment has been
exercised. And this power has been exercised when the last act,
required from the person possessing the power, has been performed. This
last act is the signature of the commission. This idea seems to have
prevailed with the legislature, when the act passed converting the
department [5 U.S. 137, 158] of foreign affairs into the
department of state. By that act it is enacted, that the secretary of
state shall keep the seal of the United States, 'and shall make out and
record, and shall affix the said seal to all civil commissions to
officers of the United States, to be appointed by the president:'
'provided that the said seal shall not be affixed to any commission,
before the same shall have been signed by the president of the United
States; nor to any other instrument or act, without the special warrant
of the president therefor.'
The signature is a warrant for affixing the great seal to the
commission; and the great seal is only to be affixed to an instrument
which is complete. It attests, by an act supposed to be of public
notoriety, the verity of the presidential signature.
It is never to be affixed till the commission is signed, because the
signature, which gives force and effect to the commission, is
conclusive evidence that the appointment is made.
The commission being signed, the subsequent duty of the secretary of
state is prescribed by law, and not to be guided by the will of the
president. He is to affix the seal of the United States to the
commission, and is to record it.
This is not a proceeding which may be varied, if the judgment of the
executive shall suggest one more eligible, but is a precise course
accurately marked out by law, and is to be strictly pursued. It is the
duty of the secretary of state to conform to the law, and in this he is
an officer of the United States, bound to obey the laws. He acts, in
this respect, as has been very properly stated at the bar, under the
authority of law, and not by the instructions of the president. It is a
ministerial act which the law enjoins on a particular officer for a
If it should be supposed, that the solemnity of affixing the seal, is
necessary not only to the validity of the commission, but even to the
completion of an appointment, still when the seal is affixed the
appointment is made, and [5 U.S. 137, 159] the commission
is valid. No other solemnity is required by law; no other act is to be
performed on the part of government. All that the executive can do to
invest the person with his office, is done; and unless the appointment
be then made, the executive cannot make one without the co- operation
After searching anxiously for the principles on which a contrary
opinion may be supported, none have been found which appear of
sufficient force to maintain the opposite doctrine.
Such as the imagination of the court could suggest, have been very
deliberately examined, and after allowing them all the weight which it
appears possible to give them, they do not shake the opinion which has
In considering this question, it has been conjectured that the
commission may have been assimilated to a deed, to the validity of
which, delivery is essential.
This idea is founded on the supposition that the commission is not
merely evidence of an appointment, but is itself the actual
appointment; a supposition by no means unquestionable. But for the
purpose of examining this objection fairly, let it be conceded, that
the principle, claimed for its support, is established.
The appointment being, under the constitution, to be made by the
president personally, the delivery of the deed of appointment, if
necessary to its completion, must be made by the president also. It is
not necessary that the livery should be made personally to the grantee
of the office: it never is so made. The law would seem to contemplate
that it should be made to the secretary of state, since it directs the
secretary to affix the seal to the commission after it shall have been
signed by the president. If then the act of livery be necessary to give
validity to the commission, it has been delivered when executed and
given to the secretary for the purpose of being sealed, recorded, and
transmitted to the party.
But in all cases of letters patent, certain solemnities are required by
law, which solemnities are the evidences [5 U.S. 137, 160]
of the validity of the instrument. A formal delivery to the person is
not among them. In cases of commissions, the sign manual of the
president, and the seal of the United States, are those solemnities.
This objection therefore does not touch the case.
It has also occurred as possible, and barely possible, that the
transmission of the commission, and the acceptance thereof, might be
deemed necessary to complete the right of the plaintiff.
The transmission of the commission is a practice directed by
convenience, but not by law. It cannot therefore be necessary to
constitute the appointment which must precede it, and which is the mere
act of the president. If the executive required that every person
appointed to an office, should himself take means to procure his
commission, the appointment would not be the less valid on that
account. The appointment is the sole act of the president; the
transmission of the commission is the sole act of the officer to whom
that duty is assigned, and may be accelerated or retarded by
circumstances which can have no influence on the appointment. A
commission is transmitted to a person already appointed; not to a
person to be appointed or not, as the letter enclosing the commission
should happen to get into the post-office and reach him in safety, or
It may have some tendency to elucidate this point, to inquire, whether
the possession of the original commission be indispensably necessary to
authorize a person, appointed to any office, to perform the duties of
that office. If it was necessary, then a loss of the commission would
lose the office. Not only negligence, but accident or fraud, fire or
theft, might deprive an individual of his office. In such a case, I
presume it could not be doubted, but that a copy from the record of the
office of the secretary of state, would be, to every intent and
purpose, equal to the original. The act of congress has expressly made
it so. To give that copy validity, it would not be necessary to prove
that the original had been transmitted and afterwards lost. The copy
would be complete evidence that the original had existed, and that the
appointment had been made, but not that the original had been
transmitted. If indeed it should appear that [5 U.S. 137,
161] the original had been mislaid in the office of state,
that circumstance would not affect the operation of the copy. When all
the requisites have been performed which authorize a recording officer
to record any instrument whatever, and the order for that purpose has
been given, the instrument is in law considered as recorded, although
the manual labour of inserting it in a book kept for that purpose may
not have been performed.
In the case of commissions, the law orders the secretary of state to
record them. When therefore they are signed and sealed, the order for
their being recorded is given; and whether inserted in the book or not,
they are in law recorded.
A copy of this record is declared equal to the original, and the fees
to be paid by a person requiring a copy are ascertained by law. Can a
keeper of a public record erase therefrom a commission which has been
recorded? Or can he refuse a copy thereof to a person demanding it on
the terms prescribed by law?
Such a copy would, equally with the original, authorize the justice of
peace to proceed in the performance of his duty, because it would,
equally with the original, attest his appointment.
If the transmission of a commission be not considered as necessary to
give validity to an appointment; still less is its acceptance. The
appointment is the sole act of the president; the acceptance is the
sole act of the officer, and is, in plain common sense, posterior to
the appointment. As he may resign, so may he refuse to accept: but
neither the one nor the other is capable of rendering the appointment a
That this is the understanding of the government, is apparent from the whole tenor of its conduct.
A commission bears date, and the salary of the officer commences from
his appointment; not from the transmission or acceptance of his
commission. When a person, appointed to any office, refuses to accept
that office, the successor is nominated in the place of the person who
[5 U.S. 137, 162] has declined to accept, and not in the
place of the person who had been previously in office and had created
the original vacancy.
It is therefore decidedly the opinion of the court, that when a
commission has been signed by the president, the appointment is made;
and that the commission is complete when the seal of the United States
has been affixed to it by the secretary of state.
Where an officer is removable at the will of the executive, the
circumstance which completes his appointment is of no concern; because
the act is at any time revocable; and the commission may be arrested,
if still in the office. But when the officer is not removable at the
will of the executive, the appointment is not revocable and cannot be
annulled. It has conferred legal rights which cannot be resumed.
The discretion of the executive is to be exercised until the
appointment has been made. But having once made the appointment, his
power over the office is terminated in all cases, where by law the
officer is not removable by him. The right to the office is then in the
person appointed, and he has the absolute, unconditional power of
accepting or rejecting it.
Mr. Marbury, then, since his commission was signed by the president and
sealed by the secretary of state, was appointed; and as the law
creating the office gave the officer a right to hold for five years
independent of the executive, the appointment was not revocable; but
vested in the officer legal rights which are protected by the laws of
To withhold the commission, therefore, is an act deemed by the court
not warranted by law, but violative of a vested legal right.
This brings us to the second inquiry; which is,
2. If he has a right, and that right has been violated, do the laws of
his country afford him a remedy? [5 U.S. 137, 163] The very
essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he receives an
injury. One of the first duties of government is to afford that
protection. In Great Britain the king himself is sued in the respectful
form of a petition, and he never fails to comply with the judgment of
In the third volume of his Commentaries, page 23, Blackstone states two
cases in which a remedy is afforded by mere operation of law.
'In all other cases,' he says, 'it is a
general and indisputable rule, that where there is a legal right, there
is also a legal remedy by suit or action at law whenever that right is
And afterwards, page 109 of the same volume, he says, 'I am next to
consider such injuries as are cognizable by the courts of common law.
And herein I shall for the present only remark, that all possible
injuries whatsoever, that did not fall within the exclusive cognizance
of either the ecclesiastical, military, or maritime tribunals, are, for
that very reason, within the cognizance of the common law courts of
justice; for it is a settled and invariable principle in the laws of
England, that every right, when withheld, must have a remedy, and every
injury its proper redress.'
The government of the United States has been emphatically termed a
government of laws, and not of men. It will certainly cease to deserve
this high appellation, if the laws furnish no remedy for the violation
of a vested legal right.
If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case.
It behoves us then to inquire whether there be in its composition any
ingredient which shall exempt from legal investigation, or exclude the
injured party from legal redress. In pursuing this inquiry the first
question which presents itself, is, whether this can be arranged [5
U.S. 137, 164] with that class of cases which come under
the description of damnum absque injuria-a loss without an injury.
This description of cases never has been considered, and it is believed
never can be considered as comprehending offices of trust, of honour or
of profit. The office of justice of peace in the district of Columbia
is such an office; it is therefore worthy of the attention and
guardianship of the laws. It has received that attention and
guardianship. It has been created by special act of congress, and has
been secured, so far as the laws can give security to the person
appointed to fill it, for five years. It is not then on account of the
worthlessness of the thing pursued, that the injured party can be
alleged to be without remedy.
Is it in the nature of the transaction? Is the act of delivering or
withholding a commission to be considered as a mere political act
belonging to the executive department alone, for the performance of
which entire confidence is placed by our constitution in the supreme
executive; and for any misconduct respecting which, the injured
individual has no remedy.
That there may be such cases is not to be questioned; but that every
act of duty to be performed in any of the great departments of
government constitutes such a case, is not to be admitted.
By the act concerning invalids, passed in June 1794, the secretary at
war is ordered to place on the pension list all persons whose names are
contained in a report previously made by him to congress. If he should
refuse to do so, would the wounded veteran be without remedy? Is it to
be contended that where the law in precise terms directs the
performance of an act in which an individual is interested, the law is
incapable of securing obedience to its mandate? Is it on account of the
character of the person against whom the complaint is made? Is it to be
contended that the heads of departments are not amenable to the laws of
Whatever the practice on particular occasions may be, the theory of
this principle will certainly never be main- [5 U.S. 137,
165] tained. No act of the legislature confers so
extraordinary a privilege, nor can it derive countenance from the
doctrines of the common law. After stating that personal injury from
the king to a subject is presumed to be impossible, Blackstone, Vol.
III. p. 255, says, 'but injuries to the rights of property can scarcely
be committed by the crown without the intervention of its officers: for
whom, the law, in matters of right, entertains no respect or delicacy;
but furnishes various methods of detecting the errors and misconduct of
those agents by whom the king has been deceived and induced to do a
By the act passed in 1796, authorizing the sale of the lands above the
mouth of Kentucky river, the purchaser, on paying his purchase money,
becomes completely entitled to the property purchased; and on producing
to the secretary of state the receipt of the treasurer upon a
certificate required by the law, the president of the United States is
authorized to grant him a patent. It is further enacted that all
patents shall be countersigned by the secretary of state, and recorded
in his office. If the secretary of state should choose to withhold this
patent; or the patent being lost, should refuse a copy of it; can it be
imagined that the law furnishes to the injured person no remedy?
It is not believed that any person whatever would attempt to maintain such a proposition.
It follows then that the question, whether the legality of an act of
the head of a department be examinable in a court of justice or not,
must always depend on the nature of that act.
If some acts be examinable, and others not, there must be some rule of
law to guide the court in the exercise of its jurisdiction.
In some instances there may be difficulty in applying the rule to
particular cases; but there cannot, it is believed, be much difficulty
in laying down the rule.
By the constitution of the United States, the president is invested
with certain important political powers, in the [5 U.S. 137,
166] exercise of which he is to use his own discretion, and
is accountable only to his country in his political character, and to
his own conscience. To aid him in the performance of these duties, he
is authorized to appoint certain officers, who act by his authority and
in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be
entertained of the manner in which executive discretion may be used,
still there exists, and can exist, no power to control that discretion.
The subjects are political. They respect the nation, not individual
rights, and being entrusted to the executive, the decision of the
executive is conclusive. The application of this remark will be
perceived by adverting to the act of congress for establishing the
department of foreign affairs. This officer, as his duties were
prescribed by that act, is to conform precisely to the will of the
president. He is the mere organ by whom that will is communicated. The
acts of such an officer, as an officer, can never be examinable by the
But when the legislature proceeds to impose on that officer other
duties; when he is directed peremptorily to perform certain acts; when
the rights of individuals are dependent on the performance of those
acts; he is so far the officer of the law; is amenable to the laws for
his conduct; and cannot at his discretion sport away the vested rights
The conclusion from this reasoning is, that where the heads of
departments are the political or confidential agents of the executive,
merely to execute the will of the president, or rather to act in cases
in which the executive possesses a constitutional or legal discretion,
nothing can be more perfectly clear than that their acts are only
politically examinable. But where a specific duty is assigned by law,
and individual rights depend upon the performance of that duty, it
seems equally clear that the individual who considers himself injured
has a right to resort to the laws of his country for a remedy.
If this be the rule, let us inquire how it applies to the case under
the consideration of the court. [5 U.S. 137, 167] The power
of nominating to the senate, and the power of appointing the person
nominated, are political powers, to be exercised by the president
according to his own discretion. When he has made an appointment, he
has exercised his whole power, and his discretion has been completely
applied to the case. If, by law, the officer be removable at the will
of the president, then a new appointment may be immediately made, and
the rights of the officer are terminated. But as a fact which has
existed cannot be made never to have existed, the appointment cannot be
annihilated; and consequently if the officer is by law not removable at
the will of the president, the rights he has acquired are protected by
the law, and are not resumable by the president. They cannot be
extinguished by executive authority, and he has the privilege of
asserting them in like manner as if they had been derived from any
The question whether a right has vested or not, is, in its nature,
judicial, and must be tried by the judicial authority, If, for example,
Mr. Marbury had taken the oaths of a magistrate, and proceeded to act
as one; in consequence of which a suit had been instituted against him,
in which his defence had depended on his being a magistrate; the
validity of his appointment must have been determined by judicial
So, if he conceives that by virtue of his appointment he has a legal
right either to the commission which has been made out for him or to a
copy of that commission, it is equally a question examinable in a
court, and the decision of the court upon it must depend on the opinion
entertained of his appointment.
That question has been discussed, and the opinion is, that the latest
point of time which can be taken as that at which the appointment was
complete, and evidenced, was when, after the signature of the
president, the seal of the United States was affixed to the commission.
It is then the opinion of the court,
1. That by signing the commission of Mr. Marbury, the president of the
United States appointed him a justice [5 U.S. 137, 168] of
peace for the county of Washington in the district of Columbia; and
that the seal of the United States, affixed thereto by the secretary of
state, is conclusive testimony of the verity of the signature, and of
the completion of the appointment; and that the appointment conferred
on him a legal right to the office for the space of five years.
2. That, having this legal title to the office, he has a consequent
right to the commission; a refusal to deliver which is a plain
violation of that right, for which the laws of his country afford him a
It remains to be inquired whether,
3. He is entitled to the remedy for which he applies. This depends on,
1. The nature of the writ applied for. And,
2. The power of this court.
1. The nature of the writ.
Blackstone, in the third volume of his Commentaries, page 110, defines
a mandamus to be, 'a command issuing in the king's name from the court
of king's bench, and directed to any person, corporation, or inferior
court of judicature within the king's dominions, requiring them to do
some particular thing therein specified which appertains to their
office and duty, and which the court of king's bench has previously
determined, or at least supposes, to be consonant to right and justice.'
Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et
al. states with much precision and explicitness the cases in which this
writ may be used.
'Whenever,' says that very able judge,
'there is a right to execute an office, perform a service, or exercise
a franchise (more especially if it be in a matter of public concern or
attended with profit), and a person is kept out of possession, or
dispossessed of such right, and [5 U.S. 137, 169] has no
other specific legal remedy, this court ought to assist by mandamus,
upon reasons of justice, as the writ expresses, and upon reasons of
public policy, to preserve peace, order and good government.' In the
same case he says, 'this writ ought to be used upon all occasions where
the law has established no specific remedy, and where in justice and
good government there ought to be one.'
In addition to the authorities now particularly cited, many others were
relied on at the bar, which show how far the practice has conformed to
the general doctrines that have been just quoted.
This writ, if awarded, would be directed to an officer of government,
and its mandate to him would be, to use the words of Blackstone, 'to do
a particular thing therein specified, which appertains to his office
and duty, and which the court has previously determined or at least
supposes to be consonant to right and justice.' Or, in the words of
Lord Mansfield, the applicant, in this case, has a right to execute an
office of public concern, and is kept out of possession of that right.
These circumstances certainly concur in this case.
Still, to render the mandamus a proper remedy, the officer to whom it
is to be directed, must be one to whom, on legal principles, such writ
may be directed; and the person applying for it must be without any
other specific and legal remedy.
1. With respect to the officer to whom it would be directed. The
intimate political relation, subsisting between the president of the
United States and the heads of departments, necessarily renders any
legal investigation of the acts of one of those high officers
peculiarly irksome, as well as delicate; and excites some hesitation
with respect to the propriety of entering into such investigation.
Impressions are often received without much reflection or examination;
and it is not wonderful that in such a case as this, the assertion, by
an individual, of his legal claims in a court of justice, to which
claims it is the duty of that court to attend, should at first view be
considered [5 U.S. 137, 170] by some, as an attempt to
intrude into the cabinet, and to intermeddle with the prerogatives of
It is scarcely necessary for the court to disclaim all pretensions to
such a jurisdiction. An extravagance, so absurd and excessive, could
not have been entertained for a moment. The province of the court is,
solely, to decide on the rights of individuals, not to inquire how the
executive, or executive officers, perform duties in which they have a
discretion. Questions, in their nature political, or which are, by the
constitution and laws, submitted to the executive, can never be made in
But, if this be not such a question; if so far from being an intrusion
into the secrets of the cabinet, it respects a paper, which, according
to law, is upon record, and to a copy of which the law gives a right,
on the payment of ten cents; if it be no intermeddling with a subject,
over which the executive can be considered as having exercised any
control; what is there in the exalted station of the officer, which
shall bar a citizen from asserting, in a court of justice, his legal
rights, or shall forbid a court to listen to the claim; or to issue a
mandamus, directing the performance of a duty, not depending on
executive discretion, but on particular acts of congress and the
general principles of law?
If one of the heads of departments commits any illegal act, under
colour of his office, by which an individual sustains an injury, it
cannot be pretended that his office alone exempts him from being sued
in the ordinary mode of proceeding, and being compelled to obey the
judgment of the law. How then can his office exempt him from this
particular mode of deciding on the legality of his conduct, if the case
be such a case as would, were any other individual the party complained
of, authorize the process?
It is not by the office of the person to whom the writ is directed, but
the nature of the thing to be done, that the propriety or impropriety
of issuing a mandamus is to be determined. Where the head of a
department acts in a case in which executive discretion is to be
exercised; in which he is the mere organ of executive will; it is [5
U.S. 137, 171] again repeated, that any application to a
court to control, in any respect, his conduct, would be rejected
But where he is directed by law to do a certain act affecting the
absolute rights of individuals, in the performance of which he is not
placed under the particular direction of the president, and the
performance of which the president cannot lawfully forbid, and
therefore is never presumed to have forbidden; as for example, to
record a commission, or a patent for land, which has received all the
legal solemnities; or to give a copy of such record; in such cases, it
is not perceived on what ground the courts of the country are further
excused from the duty of giving judgment, that right to be done to an
injured individual, than if the same services were to be performed by a
person not the head of a department.
This opinion seems not now for the first time to be taken up in this country.
It must be well recollected that in 1792 an act passed, directing the
secretary at war to place on the pension list such disabled officers
and soldiers as should be reported to him by the circuit courts, which
act, so far as the duty was imposed on the courts, was deemed
unconstitutional; but some of the judges, thinking that the law might
be executed by them in the character of commissioners, proceeded to act
and to report in that character.
This law being deemed unconstitutional at the circuits, was repealed,
and a different system was established; but the question whether those
persons, who had been reported by the judges, as commissioners, were
entitled, in consequence of that report, to be placed on the pension
list, was a legal question, properly determinable in the courts,
although the act of placing such persons on the list was to be
performed by the head of a department.
That this question might be properly settled, congress passed an act in
February 1793, making it the duty of the secretary of war, in
conjunction with the attorney general, to take such measures as might
be necessary to obtain an adjudication of the supreme court of the
United [5 U.S. 137, 172] States on the validity of any such
rights, claimed under the act aforesaid.
After the passage of this act, a mandamus was moved for, to be directed
to the secretary at war, commanding him to place on the pension list a
person stating himself to be on the report of the judges.
There is, therefore, much reason to believe, that this mode of trying
the legal right of the complainant, was deemed by the head of a
department, and by the highest law officer of the United States, the
most proper which could be selected for the purpose.
When the subject was brought before the court the decision was, not,
that a mandamus would not lie to the head of a department, directing
him to perform an act, enjoined by law, in the performance of which an
individual had a vested interest; but that a mandamus ought not to
issue in that case-the decision necessarily to be made if the report of
the commissioners did not confer on the applicant a legal right.
The judgment in that case is understood to have decided the merits of
all claims of that description; and the persons, on the report of the
commissioners, found it necessary to pursue the mode prescribed by the
law subsequent to that which had been deemed unconstitutional, in order
to place themselves on the pension list.
The doctrine, therefore, now advanced is by no means a novel one.
It is true that the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute.
It is to deliver a commission; on which subjects the acts of congress
are silent. This difference is not considered as affecting the case. It
has already been stated that the applicant has, to that commission, a
vested legal right, of which the executive cannot deprive him. He has
been appointed to an office, from which he is not removable at the will
of the executive; and being so [5 U.S. 137, 173] appointed,
he has a right to the commission which the secretary has received from
the president for his use. The act of congress does not indeed order
the secretary of state to send it to him, but it is placed in his hands
for the person entitled to it; and cannot be more lawfully withheld by
him, than by another person.
It was at first doubted whether the action of detinue was not a
specific legal remedy for the commission which has been withheld from
Mr. Marbury; in which case a mandamus would be improper. But this doubt
has yielded to the consideration that the judgment in detinue is for
the thing itself, or its value. The value of a public office not to be
sold, is incapable of being ascertained; and the applicant has a right
to the office itself, or to nothing. He will obtain the office by
obtaining the commission, or a copy of it from the record.
This, then, is a plain case of a mandamus, either to deliver the
commission, or a copy of it from the record; and it only remains to be
Whether it can issue from this court.
The act to establish the judicial courts of the United States
authorizes the supreme court 'to issue writs of mandamus, in cases
warranted by the principles and usages of law, to any courts appointed,
or persons holding office, under the authority of the United States.'
The secretary of state, being a person, holding an office under the
authority of the United States, is precisely within the letter of the
description; and if this court is not authorized to issue a writ of
mandamus to such an officer, it must be because the law is
unconstitutional, and therefore absolutely incapable of conferring the
authority, and assigning the duties which its words purport to confer
The constitution vests the whole judicial power of the United States in
one supreme court, and such inferior courts as congress shall, from
time to time, ordain and establish. This power is expressly extended to
all cases arising under the laws of the United States; and
consequently, in some form, may be exercised over the present [5 U.S.
137, 174] case; because the right claimed is given by a law
of the United States.
In the distribution of this power it is declared that 'the supreme
court shall have original jurisdiction in all cases affecting
ambassadors, other public ministers and consuls, and those in which a
state shall be a party. In all other cases, the supreme court shall
have appellate jurisdiction.'
It has been insisted at the bar, that as the original grant of
jurisdiction to the supreme and inferior courts is general, and the
clause, assigning original jurisdiction to the supreme court, contains
no negative or restrictive words; the power remains to the legislature
to assign original jurisdiction to that court in other cases than those
specified in the article which has been recited; provided those cases
belong to the judicial power of the United States.
If it had been intended to leave it in the discretion of the
legislature to apportion the judicial power between the supreme and
inferior courts according to the will of that body, it would certainly
have been useless to have proceeded further than to have defined the
judicial power, and the tribunals in which it should be vested. The
subsequent part of the section is mere surplusage, is entirely without
meaning, if such is to be the construction. If congress remains at
liberty to give this court appellate jurisdiction, where the
constitution has declared their jurisdiction shall be original; and
original jurisdiction where the constitution has declared it shall be
appellate; the distribution of jurisdiction made in the constitution,
is form without substance.
Affirmative words are often, in their operation, negative of other
objects than those affirmed; and in this case, a negative or exclusive
sense must be given to them or they have no operation at all.
It cannot be presumed that any clause in the constitution is intended
to be without effect; and therefore such construction is inadmissible,
unless the words require it. [5 U.S. 137, 175] If the
solicitude of the convention, respecting our peace with foreign powers,
induced a provision that the supreme court should take original
jurisdiction in cases which might be supposed to affect them; yet the
clause would have proceeded no further than to provide for such cases,
if no further restriction on the powers of congress had been intended.
That they should have appellate jurisdiction in all other cases, with
such exceptions as congress might make, is no restriction; unless the
words be deemed exclusive of original jurisdiction.
When an instrument organizing fundamentally a judicial system, divides
it into one supreme, and so many inferior courts as the legislature may
ordain and establish; then enumerates its powers, and proceeds so far
to distribute them, as to define the jurisdiction of the supreme court
by declaring the cases in which it shall take original jurisdiction,
and that in others it shall take appellate jurisdiction, the plain
import of the words seems to be, that in one class of cases its
jurisdiction is original, and not appellate; in the other it is
appellate, and not original. If any other construction would render the
clause inoperative, that is an additional reason for rejecting such
other construction, and for adhering to the obvious meaning.
To enable this court then to issue a mandamus, it must be shown to be
an exercise of appellate jurisdiction, or to be necessary to enable
them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be
exercised in a variety of forms, and that if it be the will of the
legislature that a mandamus should be used for that purpose, that will
must be obeyed. This is true; yet the jurisdiction must be appellate,
It is the essential criterion of appellate jurisdiction, that it
revises and corrects the proceedings in a cause already instituted, and
does not create that case. Although, therefore, a mandamus may be
directed to courts, yet to issue such a writ to an officer for the
delivery of a paper, is in effect the same as to sustain an original
action for that paper, and therefore seems not to belong to [5 U.S.
137, 176] appellate, but to original jurisdiction. Neither
is it necessary in such a case as this, to enable the court to exercise
its appellate jurisdiction.
The authority, therefore, given to the supreme court, by the act
establishing the judicial courts of the United States, to issue writs
of mandamus to public officers, appears not to be warranted by the
constitution; and it becomes necessary to inquire whether a
jurisdiction, so conferred, can be exercised.
The question, whether an act, repugnant to the constitution, can become
the law of the land, is a question deeply interesting to the United
States; but, happily, not of an intricacy proportioned to its interest.
It seems only necessary to recognise certain principles, supposed to
have been long and well established, to decide it.
That the people have an original right to establish, for their future
government, such principles as, in their opinion, shall most conduce to
their own happiness, is the basis on which the whole American fabric
has been erected. The exercise of this original right is a very great
exertion; nor can it nor ought it to be frequently repeated. The
principles, therefore, so established are deemed fundamental. And as
the authority, from which they proceed, is supreme, and can seldom act,
they are designed to be permanent.
This original and supreme will organizes the government, and assigns to
different departments their respective powers. It may either stop here;
or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The
powers of the legislature are defined and limited; and that those
limits may not be mistaken or forgotten, the constitution is written.
To what purpose are powers limited, and to what purpose is that
limitation committed to writing; if these limits may, at any time, be
passed by those intended to be restrained? The distinction between a
government with limited and unlimited powers is abolished, if those
limits do not confine the persons on whom they are imposed, and if acts
pro- [5 U.S. 137, 177] hibited and acts allowed are of
equal obligation. It is a proposition too plain to be contested, that
the constitution controls any legislative act repugnant to it; or, that
the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution
is either a superior, paramount law, unchangeable by ordinary means, or
it is on a level with ordinary legislative acts, and like other acts,
is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act
contrary to the constitution is not law: if the latter part be true,
then written constitutions are absurd attempts, on the part of the
people, to limit a power in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate
them as forming the fundamental and paramount law of the nation, and
consequently the theory of every such government must be, that an act
of the legislature repugnant to the constitution is void.
This theory is essentially attached to a written constitution, and is
consequently to be considered by this court as one of the fundamental
principles of our society. It is not therefore to be lost sight of in
the further consideration of this subject.
If an act of the legislature, repugnant to the constitution, is void,
does it, notwithstanding its invalidity, bind the courts and oblige
them to give it effect? Or, in other words, though it be not law, does
it constitute a rule as operative as if it was a law? This would be to
overthrow in fact what was established in theory; and would seem, at
first view, an absurdity too gross to be insisted on. It shall,
however, receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to
say what the law is. Those who apply the rule to particular cases, must
of necessity expound and interpret that rule. If two laws conflict with
each other, the courts must decide on the operation of each. [5 U.S.
137, 178] So if a law be in opposition to the constitution:
if both the law and the constitution apply to a particular case, so
that the court must either decide that case conformably to the law,
disregarding the constitution; or conformably to the constitution,
disregarding the law: the court must determine which of these
conflicting rules governs the case. This is of the very essence of
If then the courts are to regard the constitution; and he constitution
is superior to any ordinary act of the legislature; the constitution,
and not such ordinary act, must govern the case to which they both
Those then who controvert the principle that the constitution is to be
considered, in court, as a paramount law, are reduced to the necessity
of maintaining that courts must close their eyes on the constitution,
and see only the law.
This doctrine would subvert the very foundation of all written
constitutions. It would declare that an act, which, according to the
principles and theory of our government, is entirely void, is yet, in
practice, completely obligatory. It would declare, that if the
legislature shall do what is expressly forbidden, such act,
notwithstanding the express prohibition, is in reality effectual. It
would be giving to the legislature a practical and real omnipotence
with the same breath which professes to restrict their powers within
narrow limits. It is prescribing limits, and declaring that those
limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest
improvement on political institutions-a written constitution, would of
itself be sufficient, in America where written constitutions have been
viewed with so much reverence, for rejecting the construction. But the
peculiar expressions of the constitution of the United States furnish
additional arguments in favour of its rejection.
The judicial power of the United States is extended to all cases
arising under the constitution. [5 U.S. 137, 179] Could it
be the intention of those who gave this power, to say that, in using
it, the constitution should not be looked into? That a case arising
under the constitution should be decided without examining the
instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the constitution must be looked into by the judges.
And if they can open it at all, what part of it are they forbidden to
read, or to obey?
There are many other parts of the constitution which serve to illustrate this subject.
It is declared that 'no tax or duty shall be laid on articles exported
from any state.' Suppose a duty on the export of cotton, of tobacco, or
of flour; and a suit instituted to recover it. Ought judgment to be
rendered in such a case? ought the judges to close their eyes on the
constitution, and only see the law.
The constitution declares that 'no bill of attainder or ex post facto law shall be passed.'
If, however, such a bill should be passed and a person should be
prosecuted under it, must the court condemn to death those victims whom
the constitution endeavours to preserve?
'No person,' says the constitution,
'shall be convicted of treason unless on the testimony of two witnesses
to the same overt act, or on confession in open court.'
Here the language of the constitution is addressed especially to the
courts. It prescribes, directly for them, a rule of evidence not to be
departed from. If the legislature should change that rule, and declare
one witness, or a confession out of court, sufficient for conviction,
must the constitutional principle yield to the legislative act?
From these and many other selections which might be made, it is
apparent, that the framers of the consti- [5 U.S. 137, 180]
tution contemplated that instrument as a rule for the government of
courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it?
This oath certainly applies, in an especial manner, to their conduct in
their official character. How immoral to impose it on them, if they
were to be used as the instruments, and the knowing instruments, for
violating what they swear to support!
The oath of office, too, imposed by the legislature, is completely
demonstrative of the legislative opinion on this subject. It is in
these words: 'I do solemnly swear that I will administer justice
without respect to persons, and do equal right to the poor and to the
rich; and that I will faithfully and impartially discharge all the
duties incumbent on me as according to the best of my abilities and
understanding, agreeably to the constitution and laws of the United
Why does a judge swear to discharge his duties agreeably to the
constitution of the United States, if that constitution forms no rule
for his government? if it is closed upon him and cannot be inspected by
If such be the real state of things, this is worse than solemn mockery.
To prescribe, or to take this oath, becomes equally a crime.
It is also not entirely unworthy of observation, that in declaring what
shall be the supreme law of the land, the constitution itself is first
mentioned; and not the laws of the United States generally, but those
only which shall be made in pursuance of the constitution, have that
Thus, the particular phraseology of the constitution of the United
States confirms and strengthens the principle, supposed to be essential
to all written constitutions, that a law repugnant to the constitution
is void, and that courts, as well as other departments, are bound by
The rule must be discharged.