Page 1 1 of 1 DOCUMENT WILLIAM MARBURY v. JAMES MADISON, SECRETARY OF STATE OF THE UNITED STATES. SUPREME COURT OF THE UNITED STATES 5 U.S. 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352; 1 Cranch 137 February 24, 1803, Decided PRIOR HISTORY: [***1] AT the last term, viz. December term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel, Charles Lee, esq. late attorney general of the United States, 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 the 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 [***2] 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 to that enquiry, either by the secretary of state or by any officer of 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 laid to show cause on the 4th day of this term. This rule having been duly served, DISPOSITION: The rule was discharged. CASE SUMMARY: PROCEDURAL POSTURE: At a prior term, the Court granted an applicant a rule directing the Secretary of State of the United States to show cause why a mandamus should not issue commanding him to deliver to the applicant his commission as a justice of the peace. No cause was shown, so the applicant moved for a mandamus. OVERVIEW: The applicant and two others contended that the late President of the United States had nominated them to the Senate and that the Senate had advised and consented to their appointments as justices of the peace. The commissions were signed by the late President and the seal of the United States was affixed to the commissions by the Secretary of State. The commissions were withheld from the applicants and they requested their delivery. The Court granted a rule to show cause, requiring the Secretary to show cause why a mandamus should not issue to direct him to deliver to the commissions. No cause was shown and the applicant filed a motion for a mandamus. The Court determined that the applicant had a vested legal right in his appointment because his commission had been signed by the President, sealed by the Secretary of State, and the appointment was not revocable. The Court found that because the Page 2 5 U.S. 137, *; 2 L. Ed. 60, **; 1803 U.S. LEXIS 352, ***2; 1 Cranch 137 applicant had a legal title to the office, the laws afforded him a remedy. However, the Court held that ?? 13 of the Act of 1789, giving the Court authority to issue writs of mandamus to an officer, was contrary to the Constitution as an act of original jurisdiction, and therefore void. OUTCOME: The rule was discharged. CORE TERMS: appointment, mandamus, secretary of state, appointed, seal, legal rights, original jurisdiction, removable, affixed, act of congress, vested, person appointed, written constitutions, secretary, authorize, signature, recorded, patent, heads of departments, repugnant, solemnity, inferior, supposed, enquire, declare, judicial power, transmission, transmitted, conclusive, examinable LexisNexis(R) Headnotes Constitutional Law > The Presidency > Appointment of Officials Military & Veterans Law > Defense Powers > U.S. President [HN1] U.S. Const. art. II, ?? 2 declares, that 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. U.S. Const. art. II, ?? 3 declares, that he shall commission all the officers of the United States. Administrative Law > Separation of Powers > Executive Controls Constitutional Law > The Presidency > Appointment of Officials [HN2] 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. Administrative Law > Separation of Powers > Executive Controls Constitutional Law > Congressional Duties & Powers > General Overview Constitutional Law > The Presidency > Appointment of Officials [HN3] U.S. Const. art. II, ?? 2 authorizes 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. Constitutional Law > The Presidency > Appointment of Officials [HN4] 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. Administrative Law > Separation of Powers > Executive Controls Constitutional Law > The Presidency > Appointment of Officials [HN5] 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. Constitutional Law > The Presidency > Appointment of Officials [HN6] 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. Constitutional Law > The Presidency > Appointment of Officials Page 3 5 U.S. 137, *; 2 L. Ed. 60, **; 1803 U.S. LEXIS 352, ***2; 1 Cranch 137 [HN7] 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. Constitutional Law > Substantive Due Process > Scope of Protection Governments > Legislation > Statutory Remedies & Rights [HN8] 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. Governments > Legislation > Statutory Remedies & Rights [HN9] Where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded. Constitutional Law > The Judiciary > Case or Controversy > Political Questions [HN10] 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. Constitutional Law > The Presidency > Foreign Affairs Constitutional Law > The Judiciary > Case or Controversy > Political Questions Constitutional Law > Separation of Powers [HN11] By the Constitution of the United States, the President is invested with certain important political powers, in the 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. Constitutional Law > The Judiciary > Case or Controversy > Political Questions Governments > Legislation > Statutory Remedies & Rights [HN12] 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. Constitutional Law > Separation of Powers Governments > Legislation > Statutory Remedies & Rights [HN13] The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority. Civil Procedure > Remedies > Writs > Common Law Writs > Mandamus [HN14] Whenever there is a right to execute an office, perform a service, or exercise a franchise (more specifically if it be in a matter of public concern, or attended with profit) and a person is kept out of the possession, or dispossessed of such right, and has no other specific legal remedy, the 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. 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. Civil Procedure > Remedies > Writs > Common Law Writs > Mandamus [HN15] To render the mandamus a proper remedy, the officer to whom it is directed, must be one to whom, on legal Page 4 5 U.S. 137, *; 2 L. Ed. 60, **; 1803 U.S. LEXIS 352, ***2; 1 Cranch 137 principles, such writ may be directed; and the person applying for it must be without any other specific and legal remedy. Civil Procedure > Trials > Jury Trials > Province of Court & Jury Constitutional Law > The Judiciary > Case or Controversy > Political Questions Constitutional Law > Separation of Powers [HN16] The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the Constitution and laws, submitted to the executive, can never be made in this court. Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview Civil Procedure > Appeals > Appellate Jurisdiction > State Court Review Constitutional Law > The Judiciary > Jurisdiction > General Overview [HN17] 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 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. Civil Procedure > Jurisdiction > Jurisdictional Sources > Constitutional Sources Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview Constitutional Law > The Judiciary > Jurisdiction > General Overview [HN18] If Congress remains at liberty to give the Supreme 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. Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview Civil Procedure > Appeals > Appellate Jurisdiction > State Court Review Constitutional Law > Supremacy Clause > General Overview [HN19] 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 their obvious meaning. Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview Civil Procedure > Remedies > Writs > Common Law Writs > Mandamus Civil Procedure > U.S. Supreme Court Review > General Overview [HN20] 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 cause. 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 appellate, but to original jurisdiction. Constitutional Law > Supremacy Clause > General Overview [HN21] The Constitution of the United States establishes certain limits not to be transcended by the different departments of the government. 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 Page 5 5 U.S. 137, *; 2 L. Ed. 60, **; 1803 U.S. LEXIS 352, ***2; 1 Cranch 137 distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited 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. Constitutional Law > Supremacy Clause > General Overview [HN22] 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. Constitutional Law > The Judiciary > Case or Controversy > Constitutionality of Legislation > General Overview Constitutional Law > Separation of Powers [HN23] 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. 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 judicial duty. Constitutional Law > The Judiciary > Case or Controversy > Constitutional Questions > General Overview Constitutional Law > The Judiciary > Jurisdiction > General Overview Constitutional Law > Supremacy Clause > General Overview [HN24] The judicial power of the United States is extended to all cases arising under the Constitution. Constitutional Law > Supremacy Clause > General Overview [HN25] A law repugnant to the Constitution is void; the courts, as well as other departments, are bound by that instrument. LAWYERS' EDITION HEADNOTES: The Supreme Court of the United States has not power to issue a mandamus to a Secretary of State of the United States, it being an exercise of original jurisdiction not warranted by the constitution. Congress has not power to give original jurisdiction to the Supreme Court in other cases than those described in the constitution. An act of congress repugnant to the constitution cannot become a law. The courts of the United States are bound to take notice of the constitution. A commission is not necessary to the appointment of an officer by the executive; semb. A commission is only evidence of an appointment. Delivery is not necessary to the validity of letters patent. The president cannot authorize a Secretary of State to omit the performance of those duties which are enjoined by law. A justice of peace in the District of Columbia is not removable at the will of the president. When a commission for an officer not holding his office at the will of the president, is by him signed and transmitted to the Secretary of State, to be sealed and recorded, it is irrevocable; the appointment is complete. Page 6 5 U.S. 137, *; 2 L. Ed. 60, **; 1803 U.S. LEXIS 352, ***2; 1 Cranch 137 A mandamus is the proper remedy to compel a Secretary of State to deliver a commission to which the party is entitled. SYLLABUS REPORTER'S NOTES The supreme court of the United States has not power to issue a mandamus to a secretary of state of the United States, it being an exercise of original jurisdiction not warranted by the constitution. Congress have not power to give original jurisdiction to the supreme court in other case than those described in the constitution. An act of congress repugnant to the constitution can not become a law. The courts of U. States are bound to take notice of the constitution. [***3] A commission is not necessary to the appointment of an officer by the executive -- Semb. A commission is only evidence of an appointment. Delivery is not necessary to the validity of letters patent. The President cannot authorize a secretary of state to omit the performance of those duties which are enjoined by law. A justice of peace in the district of Columbia is not removable at the will of the President. When a commission for an officer not holding his office at the will of the President, is by him signed and transmitted to the secretary of state to be sealed and recorded, it is irrevocable; the appointment is complete. A mandamus is the proper remedy to compel a secretary of state to deliver a commission to which the party is entitled. COUNSEL: Mr. Lee, in support of the rule, observed that it was important to know on what ground a justice of peace in the district of Columbia holds his office, and what proceedings are necessary to constitute an appointment to an office no held at the will of the president. However notorious the facts are, upon the suggestion of which this rule has been laid, yet the applicants have been much embarrassed in obtaining evidence of them. [***4] Reasonable information has been denied at the office of the department of state. Although a respectful memorial has been made to the senate praying them to suffer their secretary to give extracts from their executive journals respecting the nomination of the applicants to the senate, and of their advice and consent to the appointments, yet their request has been denied, and their petition rejected. They have therefore been compelled to summon witnesses to attend in court, whose voluntary affidavits they could not obtain. Mr. Lee here read the affidavit of Dennis Ramsay, and the printed journals of the senate of 31 January, 1803, respecting the refusal of the senate to suffer their secretary to give the information requested. He then called Jacob Wagner and Daniel Brent, who had been summoned to attend the court, and who had, as it is understood, declined giving a voluntary affidavit. They objected to being sworn, alleging that they were clerks in the department of state and not bound to disclose any facts relating to the business or transactions in the office. Mr. Lee observed, that to show the propriety of examining these witnesses, he would make a few remarks on the nature [***5] of the office of secretary of state. His duties are of two kinds, and he exercises his functions in two distinct capacities; as a public ministerial officer of the United States, and as agent of the President. In the first his duty is to the United States or its citizens; in the other his duty is to the President; in the one he is an independent, and an accountable officer; in the other he is dependent upon the President, is his agent, and accountable to him alone. In the former capacity he is compellable by mandamus to do his duty; in the latter he is not. This distinction is clearly pointed out by the two acts of congress upon this subject. The first was passed 27th July, 1789, vol. 1. p. 359, entitled "an act for establishing an executive department, to be denominated the department of foreign affairs." The first section ascertains the duties of the secretary so far as he is considered as a mere executive agent. It is in these words, "Be it enacted, &c. that there shall be an executive department, to be denominated the department of foreign affairs, and that there shall be a principal officer therein, to be called the secretary of the department of foreign affairs, who shall [***6] perform and execute such duties as shall from time to time be enjoined on, or instructed to him by the President of the United States, agreeable to the constitution, relative to correspondences, commissions or instructions to or with public ministers or consuls from the United States; or to negotiations with public ministers from foreign states or princes, or to memorials or other applications from foreign public ministers, or other foreigners, or to such other matters respecting foreign affairs as the President of the United States shall assign to the said department; and furthermore, that the said principal Page 7 5 U.S. 137, *; 2 L. Ed. 60, **; 1803 U.S. LEXIS 352, ***6; 1 Cranch 137 officer shall conduct the business of the said department in such manner as the President of the United States shall from time to time order or instruct." The second section provides for the appointment of a chief clerk; the third section prescribes the oath to be taken which is simply, "well and faithfully to execute the trust committed to him;" and the fourth and last section gives him the custody of the books and papers of the department of foreign affairs under the old congress. Respecting the powers given and the duties imposed by this act, no mandamus will lie. The secretary [***7] is responsible only to the President. The other acts of congress respecting this department was passed at the same session of the 15th September 1789, vol. 1, p. 41, c. 14, and is entitled "An act to provide for the safe keeping of the acts and records, and seal of the United States, and for other purposes." The first section changes the name of the department and the secretary, calling the one the department and the other the secretary of state. The second section assigns new duties to the secretary, in the performance of which it is evident, from their nature, he cannot be lawfully controlled by the president, and for the non-performance of which he is not more responsible to the president than to any other citizen of the United States. It provides that he shall receive from the president all bills, orders, resolutions and votes of the senate and house of representatives, which shall have been approved and signed by him; and shall cause them to be published, and printed copies to be delivered to the senators and representatives and to the executives of the several states; and makes it his duty carefully to preserve the originals; and to cause them to be recorded in books to be [***8] provided for that purpose. The third section provides a seal of the United States. The fourth makes it his duty to keep the said seal, and to make out and record, and to affix the seal of the United States to all civil commissions, after they shall have been signed by the President. The fifth section provides for a seal of office, and that all copies of records and papers in his office, authenticated under that seal, shall be as good evidence as the originals. The sixth section establishes fees for copies, &c. The seventh and last section gives him the custody of the papers of the office of the secretary of the old congress. Most of the duties assigned by this act are of a public nature, and the secretary is bound to perform them, without the control of any person. The President has no right to prevent him from receiving the bills, orders, resolutions and votes of the legislature, or from publishing and distributing them, or from preserving or recording them. While the secretary remains in office the President cannot take from his custody the seal of the United States, nor prevent him from recording, and affixing the seal to civil commissions of such officers as hold not their [***9] offices at the will of the President, after he has signed them and delivered them to the secretary for that purpose. By other laws he is to make out and record in his office patents for useful discoveries, and patents of lands granted under the authority of the United States. In the performance of all these duties he is a public ministerial officer of the United States. And the duties being enjoined upon him by law, he is, in executing them, uncontrollable by the President; and if he neglects or refuses to perform them, he may be compelled by mandamus, in the same manner as other persons holding offices under the authority of the United States. The President is no party to this case. The secretary is called upon to perform a duty over which the President has no control, and in regard to which he has no dispensing power, and for the neglect of which he is in no manner responsible. The secretary alone is the person to whom they are entrusted, and he alone is answerable for their due performance. The secretary of state, therefore, being in the same situation, as to these duties, as every other ministerial officer of the United States, and equally liable to be compelled to perform [***10] them, is also bound by the same rules of evidence. These duties are not of a confidential nature, but are of a public kind, and his clerks can have no exclusive privileges. There are undoubtedly facts, which may come to their knowledge by means of their connection with the secretary of state, respecting which they cannot be bound to answer. Such are the facts concerning foreign correspondences, and confidential communications between the head of the department and the President. This, however, can be no objection to their being sworn, but may be a ground of objection to any particular question. Suppose I claim title to land under a patent from the United States. I demand a copy of it from the secretary of state. He refuses. Surely he may be compelled by mandamus to give it. But in order to obtain a mandamus, I must show that the patent is recorded in his office. My case would be hard indeed if I could not call upon the clerks in the office to give evidence of that fact. Again, suppose a private act of congress had passed for my benefit. It becomes necessary for me to have the use of that act in a court of law. I apply for a copy. I am refused. Shall I not be permitted, [***11] on a motion for a mandamus, to call upon the clerks in the office to prove that such an act is among the rolls of the office, or that it is duly recorded? Surely it cannot be contended that although the laws are to be recorded, yet no access is to be had to the records, and no benefit to result therefrom. Page 8 5 U.S. 137, *; 2 L. Ed. 60, **; 1803 U.S. LEXIS 352, ***11; 1 Cranch 137 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. Wagner being examined under interrogatories, testified, that at this distance of time he could not recollect whether he had seen any commission in the office, constituting the applicants, or either of them justices of the peace. That Mr Marbury and Mr. Ramsey called on the secretary of state respecting their commissions. That the secretary referred them to him; he took them into another room and mentioned to them, that two of the commissions had been signed, but the other had not. That he did not know that fact of his own knowledge, but by the information of others. Mr. Wagner declined answering the question "who gave him that information;" and the [***12] court decided that he was not bound to answer it, because it was not pertinent to this cause. He further testified that some of the commissions of the justices, but he believed not all, were recorded. He did not know whether the commissions of the applicants were recorded, as he had not had recourse to the book for more than twelve months past. Mr. Daniel Brent testified, that he did not remember certainly the names of any of the persons in the commissions of justices of the peace signed by Mr. Adams; but believed, and was almost certain, that Mr. Marbury's and Col. Hooe's commissions were made out,, and that Mr. Ramsay's was not; that he made out the list of names by which the clerk who filled up the commissions was guided; he believed that the name of Mr. Ramsey was pretermitted by mistake, but to the best of his knowledge it contained the names of the other two; he believed none of the commissions for justices of the peace signed by Mr. Adams, were recorded. After the commissions of justices of peace were made out, he carried them to Mr. Adams for his signature. After being signed he carried them back to the secretary's office, where the seal of the United States was affixed [***13] to them. That commissions are not usually delivered out of the office before they are recorded; but sometimes they are, and a note of them only is taken, and they are recorded afterwards. He believed none of those commissions of justices were ever sent out, or delivered to the persons for whom they were intended; he did not know what became of them, nor did he know that they are now in the office of the secretary of state. Mr. Lincoln, attorney general, having been summoned, and now called, objected to answering. He requested that the questions might be put in writing, and that he might afterwards have time to determine whether he would answer. On the one hand he respected the jurisdiction of this court, and on the other he felt himself bound to maintain the rights of the executive. He was acting as secretary of state at the time when this transaction happened. He was of opinion, and his opinion was supported by that of others whom he highly respected, that he was not bound, and ought not to answer, as to any facts which came officially to his knowledge while acting as secretary of state. The questions being written were then read and handed to him. He repeated the ideas [***14] he had before suggested, and said his objections were of two kinds. 1st. He did not think himself bound to disclose his official transactions while acting as secretary of state; and 2d. He ought not to be compelled to answer any thing which might tend to criminate himself. Mr. Lee, in reply, repeated the substance of the observations he had before made in answer to the objections of Mr. Wagner and Mr. Brent. He stated that the duties of a secretary of state were two-fold. In discharging one part of those duties he acted as a public ministerial officer of the United States, totally independent of the President, and that as to any facts which came officially to his knowledge, while acting in that capacity, he was as much bound to answer as a marshal, a collector, or any other ministerial officer. But that in the discharge of the other part of his duties, he did not act as public ministerial officer, but in the capacity of an agent of the President, bound to obey his orders, and accountable to him for his conduct. And that as to any facts which came officially to his knowledge in the discharge of this part of his duties, he was not bound to answer. He agreed that Mr. Lincoln [***15] was not bound to disclose any thing which might tend to criminate himself. Page 9 5 U.S. 137, *; 2 L. Ed. 60, **; 1803 U.S. LEXIS 352, ***15; 1 Cranch 137 Mr. Lincoln thought it was going a great way to say that every secretary of state should at all times be liable to be called upon to appear as a witness in a court of justice, and testify to facts which came to his knowledge officially. He felt himself delicately situated between his duty to this court, and the duty he conceived he owed to an executive department; and hoped the court would give him time to consider of the subject. The court said, that if Mr. Lincoln wished time to consider what answers he should make, they would give him time; but they had no doubt he ought to answer. There was nothing confidential required to be disclosed. If there had been he was not obliged to answer it; and if he thought that any thing was communicated to him in confidence he was not bound to disclose it; nor was he obliged to state any thing which would criminate himself; but that the fact whether such commissions had been in the office or not, could not be a confidential fact; it is a fact which all the world have a right to know. If he thought any of the questions improper, he might state his objections. [***16] Mr. Lincoln then prayed time till the next day to consider of his answers under this opinion of the court. The court granted it and postponed further consideration of the cause till the next day. At the opening of the court on the next morning, Mr. Lincoln said he had no objection to answering the questions proposed, excepting the last which he did not think himself obliged to answer fully. The question was, what had been done with the commissions. He had no hesitation in saying that he did not know that they ever came to the possession of Mr. Madison, nor did he know that they were in the office when Mr. Madison took possession of it. He prayed the opinion of the court whether he was obliged to disclose what had been done with the commissions. The court were of opinion that he was not bound to say what had become of them; if they never came to the possession of Mr. Madison, it was immaterial to the present cause, what had been done with them by others. To the other questions he answered that he had seen commissions of justices of the peace of the district of Columbia, signed by Mr. Adams, and sealed with the seal of the United States. He did not recollect whether [***17] any of them constituted Mr. Marbury, Col. Hooe, or Col. Ramsay, justices of the peace; there were when he went into the office several commissions for justices of peace of the district made out; but he was furnished with a list of names to be put into a general commission, which was done, and was considered as superseding the particular commissions; and the individuals whose names were contained in this general commission were informed of their being thus appointed. He did not know that any one of the commissions was ever sent to the person for whom it was made out, and did not believe that any one had been sent. Mr. Lee then read the affidavit of James Marshall, who had been also summoned as a witness. It stated that on the 4th of March 1801, having been informed by some person from Alexandria that there was reason to apprehend riotous proceedings in that town on that night, he was induced to return immediately home, and to call at the office of the secretary of state, for the commissions of the justices of the peace; that as many as 2, as he believed, commissions of justices for that county were delivered to him for which he gave a receipt, which he left in the office. That [***18] finding he could not conveniently carry the whole, he returned several of them, and struck a pen through the names of those, in the receipt, which he returned. Among the commissions so returned, according to the best of his knowledge and belief, was one for colonel Hooe, and one for William Harper. Mr. Lee then observed, that having proved the existence of the commissions, he should confine such further remarks as he had to make in support of the rule to three questions: 1st.Whether the supreme court can award the writ of mandamus in any case. 2d. Whether it will lie to a secretary of state in any case whatever. Page 10 5 U.S. 137, *; 2 L. Ed. 60, **; 1803 U.S. LEXIS 352, ***18; 1 Cranch 137 3d. Whether in the present case the court may award a mandamus to James Madison, secretary of state. The argument upon the 1st question is derived not only from the principles and practice of that country, from whence we derive many of the principles of our political institutions, but from the constitution and laws of the United States. This is the supreme court, and by reason of its supremacy must have the superintendence of the inferior tribunals and officers, whether judicial or ministerial. In this respect there is no difference between a judicial and [***19] ministerial officer. From this principle alone the court of King's Bench in England derives the power of issuing the writs of mandamus and prohibition. 3 Inst. 70, 71. Shall it be said that the court of King's Bench has this power in consequence to its being the supreme court of judicature, and shall we deny it to this court which the constitution makes the supreme court? It is beneficial, and a necessary power; and it can never be applied where there is another adequate, specific, legal remedy. The second section of the third article of the constitution gives this court appellate jurisdiction in all cases in law and equity arising under the constitution and laws of the United States (except the cases in which it has original jurisdiction) with such exceptions, and under such regulations as congress shall make. The term "appellate jurisdiction" is to be taken in its largest sense, and implies in its nature the right of superintending the inferior tribunals. Proceedings in nature of appeals are of various kinds, according to the subject matter. 3 Bl. Com. 402. It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury [***20] its proper redress. 3 Bl. Com. 109. There are some injuries which can only be redressed by a writ of mandamus, and others by a writ of prohibition. There must then be a jurisdiction some where competent to issue that kind of process. Where are we to look for it but in that court which the constitution and laws have made supreme, and to which they have given appellate jurisdiction? Blakstone, vol. 3, p. 110. says that a writ of mandamus is "a command issuing in the King's name from the court of King's Bench, and directed to any person, corporation or inferior court, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court has previously determined, or at least supposes, to be consonant to right and justice. It is a writ of most extensively remedial nature, and issues in all cases where the party has a right to have any thing done, and has no other specific means of compelling its performance." In the Federalist, vol. 2, p. 239, it is said, that the word "appellate" is not to be taken in its technical sense, as used in reference to appeals in the course of the civil law, but in its broadest sense, in which it [***21] denotes nothing more than the power of one tribunal to review the proceedings of another, either as to law or facts, or both. The writ of mandamus is in the nature of an appeal as to facts as well as law. It is competent for congress to prescribe the forms of process by which the supreme court shall exercise its appellate jurisdiction, and they may well declare a mandamus to be one. But the power does not depend upon implication alone. It has been recognized by legislative provision as well as in judicial decisions in this court. Congress, by a law passed at the very first session after the adoption of the constitution, vol. 1. p. 58, ?? 13, have expressly given the supreme court the power of issuing writs of mandamus. The words are, "The supreme court shall also have appellate jurisdiction from the circuit courts, and the courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under [***22] the authority of the United States." Congress is not restrained from conferring original jurisdiction in other cases than those mentioned in the constitution. 2 Dal. Rep. 298. This court has entertained jurisdiction on a mandamus in one case, and on a prohibition in another. In the case of the United States v. judge Lawrence, 3 Dal. Rep. 42, a mandamus was moved for by the attorney general at the instance of Page 11 5 U.S. 137, *; 2 L. Ed. 60, **; 1803 U.S. LEXIS 352, ***22; 1 Cranch 137 the French minister, to compel judge Lawrence to issue a warrant against captain Barre, commander of the French ship of war Le Perdrix, grounded on an article of the consular convention with France. In this case the power of the court to issue writs of mandamus, was taken for granted in the arguments of counsel on both sides, and seems to have been so considered by the court. The mandamus was refused, because the case in which it was required, was not a proper one to support the motion. In the case of the United States v. judge Peters a writ of prohibition was granted, 3 Dal. Rep. 121, 129.This was the celebrated case of the French corvette the Cassius, which afterwards became a subject of diplomatic controversy between the two nations. On the 5th Feb. 1794, a motion [***23] was made to the supreme court in behalf of one John Chandler, a citizen of Connecticut, for a mandamus to the secretary of war, commanding him to place Chandler on the invalid pension list. After argument, the court refused the mandamus, because the two acts of congress respecting invalids, did not support the case on which the applicant grounded his motion. The case of the United States v. Hopkins, at February term, 1794, was a motion for a mandamus to Hopkins, loan officer for the district of Virginia, to command him to admit a person to subscribe to the United States loan. Upon argument the mandamus was refused because the applicant had not sufficiently established his title. In none of these cases, nor in any other, was the power of this court to issue a mandamus ever denied. Hence it appears there has been a legislative construction of the constitution upon this point, and a judicial practice under it, for the whole time since the formation of that government. 2d. The second point is, can a mandamus go to a secretary of state in any case? It certainly cannot in all cases; nor to the President in any case. It may not be proper to mention this position; but I am compelled [***24] to do it. An idea has gone forth, that a mandamus to a secretary of state is equivalent to a mandamus to the President of the United States. I declare it to be my opinion, grounded on a comprehensive view of the subject, that the President is not amenable to any court of judicature for the exercise of his high functions, but is responsible only in the mode pointed out in the constitution. The secretary of state acts, as before observed, in two capacities. As the agent of the President, he is not liable to a mandamus; but as a recorder of the laws of the United States; as keeper of the great seal, as recorder of deeds of land, of letters patent, and of commissions, &c. he is a ministerial officer of the people of the United States. As such he has duties assigned him by law, in the execution of which he is independent of all control, but that of the laws. It is true he is a high officer, but is not above law. It is not consistent with the policy of our political institutions, or the manners of the citizens of the United States, that any ministerial officer having public duties to perform, should be above the compulsion of law in the exercise of those duties. As a ministerial [***25] officer he is compellable to do his duty, and if he refuses, is liable to indictment. A prosecution of this kind might be the means of punishing the officer, but a specific civil remedy to the injured party can only be obtained by a writ of mandamus. If a mandamus can be awarded by this court in any case, it may issue to a secretary of state; for the act of congress expressly gives the power to award it, "in cases warranted by the principles and usages of law, to any persons holding offices under the authority of the United States." Many cases may be supported, in which a secretary of state ought to be compelled to perform his duty specifically. By the 5th and 6th sections of the act of congress, vol. 1. p. 43, copies under seal of the office of the department of state are made evidence in courts of law, and fees are given for making them out. The intention of the law must have been, that every person needing a copy should be entitled to it. Suppose the secretary refuses to give a copy, ought he not to be compelled? Suppose I am entitled to a patent for lands purchased of the United States; it is made out and signed by the President who gives a warrant to the secretary to affix [***26] the great seal to the patent; he refuses to do it; shall I not have a mandamus to compel him? Suppose the seal is affixed, but the secretary refuses to record it; shall he not be compelled? Suppose it recorded, and he refuses to deliver it; shall I have no remedy? In this respect there is no difference between the patent for lands, and the commission of a judicial officer. The duty of the secretary is precisely the same. Judge Patterson enquired of Mr. Lee whether he understood it to be the duty of the secretary to deliver a commission, unless ordered so to do by the President. Mr. Lee replied, that after the President has signed a commission for an office not held at his will, and it comes to the Page 12 5 U.S. 137, *; 2 L. Ed. 60, **; 1803 U.S. LEXIS 352, ***26; 1 Cranch 137 secretary to be sealed, the President has done with it, and nothing remains, but that the secretary perform those ministerial acts which the law imposes upon him. It immediately becomes his duty to seal, record, and deliver it on demand. In such a case the appointment becomes complete by the signing and sealing; and the secretary does wrong if he withholds the commission. 3d. The third point is, whether in the present case a writ of mandamus ought to be awarded to James [***27] Madison, secretary of state. The justices of the peace in the district of Columbia are judicial officers, and hold their office for five years. The office is established by the act of Congress passed the 27th of Feb. 1803, entitled "An act concerning the district of Columbia," ch. 86, ?? 11 and 4; page 271, 273. They are authorized to hold courts and have cognizance of personal demands of the value of 20 dollars. The act of May 3d, 1802, ch. 52, ?? 4, considers them as judicial officers, and provides the mode in which execution shall issue upon their judgments. They hold their offices independent of the will of the President. The appointment of such an officer is complete when the President has nominated him to the senate, and the senate have advised and consented, and the President has signed the commission and delivered it to the secretary to be sealed. The President has then done with it; it become irrevocable. An appointment of a judge once completed, is made forever. He holds under the constitution. The requisites to be performed by the secretary are ministerial, ascertained by law, and he has no discretion, but must perform them; there is no dispensing power. In [***28] contemplation of law they are as if done. These justices exercise part of the judicial power of the United States. They ought therefore to be independent. Mr. Lee begged leave again to refer to the Federalist, vol. 2, Nos. 78 and 79, as containing a correct view of this subject. They contained observations and ideas which he wished might be generally read and understood. They contained the principles upon which this branch of our constitution was constructed. It is important to the citizens of this district that the justices should be independent; almost all the authority immediately exercised over them is that of the justices. They wish to know whether the justices of this district are to hold their commissions at the will of a secretary of state. This cause may seem trivial at first view, but it is important in principle. It is for this reason that this court is now troubled with it. The emoluments or the dignity of the office, are no objects with the applicants. They conceive themselves to be duly appointed justices of the peace, and they believe it to be their duty to maintain the rights of their office, and not to suffer them to be violated by the hand of power. The [***29] citizens of this district have their fears excited by every stretch of power by a person so high in office as the secretary of state. It only remains now to consider whether a mandamus to compel the delivery of a commission by a public ministerial officer, is one of "the cases warranted by the principles and usages of law." It is the general principle of law that a mandamus lies, if there be no other adequate, specific, legal remedy; 3 Burrow, 1067, King v. Barker, et al. This seems to be the result of a view of all the cases on the subject. The case of Rex v. Borough of Midhurst, 1 Wils. 283, was a mandamus to compel the presentment of certain conveyances to purchasers of burgage tenements, whereby they would be entitled to vote for members of parliament. In the case of Rex v. Dr. Hay, 1 W. Bl. Rep. 640, a mandamus issued to admit one to administer an estate. A mandamus gives no right, but only puts the party in a way to try his right. Sid. 286. It lies to compel a ministerial act which concerns the public. 1 Wilson, 283. 1 Bl. Rep. 640 -- although there be a more tedious remedy, Str. 1082. 4 Bur. 2188. 2 Bur. 1045; So if there be a legal right, and a remedy in equity, [***30] 3. Term. Rep. 652. A mandamus lies to obtain admission into a trading company. Rex v. Turkey Company, 2 Bur. 1000. Carthew 448. 5 Mod. 402; So it lies to put the corporate seal to an instrument. 4 Term. Rep. 699; to commissioners of the excise to grant a permit, 2 Term Rep. 381; to admit to an office, 3 Term. Rep. 575; to deliver papers which concern the public, 2 Sid. 31. A mandamus will sometimes lie in a doubtful case, 1 Levinz 123, to be further considered on the Page 13 5 U.S. 137, *; 2 L. Ed. 60, **; 1803 U.S. LEXIS 352, ***30; 1 Cranch 137 return, 2 Levinz, 14. 1 Siderfin, 169. It lies to be admitted a member of a church, 3 Bur. 1265, 1043. The process is as ancient as the time of Ed. 2d. 1 Levinz 23. The first writ of mandamus is not peremptory, it only commands the officer to do the thing or show cause why he should not do it. If the cause returned be sufficient, there is an end of the proceeding, if not, a peremptory mandamus is then awarded. It is said to be a writ of discretion. But the discretion of a court always means a sound, legal discretion, not an arbitrary will. If the applicant makes out a proper case, the court are bound to grant it. They can refuse justice to no man. On a subsequent day, and before the court had given [***31] an opinion, Mr. Lee read the affidavit of Hazen Kimball, who had been a clerk in the office of the Secretary of State, and has been to a distant part of the United States, but whose return was not known to the applicant till after the argument of the case. It stated that on the third of March, 1801, he was a clerk in the department of state. That there were in the office, on that day, commissions made out and signed by the president, appointing William Marbury a justice of peace for the county of Washington; and Robert T. Hooe a justice of the peace for the county of Alexandria, in the district of Columbia. OPINION BY: MARSHALL OPINION [*153] [**66] Afterwards, on the 24th of February the following opinion of the court was delivered by the chief justice. 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 [*154] should not issue, directing him to deliver to William Marbury his commission as a justice of the peace of the county of Washington, in the district of Columbia. No cause has been shown, and the present motion is for a mandamus. [***32] 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. 1st. Has the applicant a right to the commission he demands? 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3dly. If they do afford him a remedy, is it a mandamus issuing from this court? The first object of enquiry is, 1st. Has the applicant a right to the commission he demands? Page 14 5 U.S. 137, *154; 2 L. Ed. 60, **66; 1803 U.S. LEXIS 352, ***32; 1 Cranch 137 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 11th section of this law, enacts, "that there shall be appointed in and for [***33] 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. [*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 enquire 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. [HN1] The 2d section of the 2d article of the constitution, declares, that "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 [***34] otherwise provided for." The third section declares, that "he shall commission all the officers of the United States." [HN2] 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: 1st, The nomination. This is the sole act of the President, and is completely voluntary. 2d. 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. [*156] 3d. 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 [***35] 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 [**67] adverting to that provision in [HN3] the second section of the second article of the constitution, which authorizes 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 [***36] 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 will. It follows too, from the existence of this distinction, that, if an appointment was to be evidenced by any public act, other Page 15 5 U.S. 137, *156; 2 L. Ed. 60, **67; 1803 U.S. LEXIS 352, ***36; 1 Cranch 137 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. [*157] This is an appointment 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 [***37] the appointment; though conclusive evidence of it. But at what state 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 deliberations 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 respects the appointment, an inchoate and incomplete transaction. Some point of [***38] 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 [*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 asserts, by an [***39] 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 regard, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose. Page 16 5 U.S. 137, *158; 2 L. Ed. 60, **67; 1803 U.S. LEXIS 352, ***39; 1 Cranch 137 If it should be supposed, that the solemnity of affixing the seal, is necessary not only to the validity of the [***40] commission, but even to the completion of an appointment, still when the seal is affixed the appointment is made, and [*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 of others. 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 been formed. In considering this question, it has been conje