MARBURY v. MADISON, 5 U.S.

137 (1803)
5 U.S. 137 (Cranch)
WILLIAM MARBURY
v.
AM!S MADISON, S"cr"#ar$ %& S#a#" %& #h" Un'#"( S#a#").
*"+r,ar$ -"r., 1803
AT the December term 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and
William Harper, by their counsel [ !"#" 1$%, 1$8& se'erally mo'ed the court (or a rule to )ames
Madison, secretary o( state o( the !nited #tates, to show cause why a mandamus should not
issue commandin* him to cause to be deli'ered to them respecti'ely their se'eral commissions
as +ustices o( the peace in the district o( ,olumbia"
This motion was supported by a((ida'its o( the (ollowin* (acts- that notice o( this motion had
been *i'en to Mr" Madison. that Mr" Adams, the late president o( the !nited #tates, nominated
the applicants to the senate (or their ad'ice and consent to be appointed +ustices o( the peace o(
the district o( ,olumbia. that the senate ad'ised and consented to the appointments. that
commissions in due (orm were si*ned by the said president appointin* them +ustices, /c" and
that the seal o( the !nited #tates was in due (orm a((i0ed to the said commissions by the
secretary o( state. that the applicants ha'e re1uested Mr" Madison to deli'er them their said
commissions, who has not complied with that re1uest. and that their said commissions are
withheld (rom them. that the applicants ha'e made application to Mr" Madison as secretary o(
state o( the !nited #tates at his o((ice, (or in(ormation whether the commissions were si*ned
and sealed as a(oresaid. that e0plicit and satis(actory in(ormation has not been *i'en in answer
to that in1uiry, either by the secretary o( state, or any o((icer in the department o( state. that
application has been made to the secretary o( the senate (or a certi(icate o( the nomination o( the
applicants, and o( the ad'ice and consent o( the senate, who has declined *i'in* such a
certi(icate. whereupon a rule was made to show cause on the (ourth day o( this term" This rule
ha'in* been duly ser'ed22 [ !"#" 1$%, 1$3& Mr" )acob Wa*ner and Mr" Daniel 4rent, who had
been summoned to attend the court, and were re1uired to *i'e e'idence, ob+ected to be sworn,
alle*in* that they were cler5s in the department o( state, and not bound to disclose any (acts
relatin* to the business or transactions o( the o((ice"
The court ordered the witnesses to be sworn, and their answers ta5en in writin*. but in(ormed
them that when the 1uestions were as5ed they mi*ht state their ob+ections to answerin* each
particular 1uestion, i( they had any"
Mr" 6incoln, who had been the actin* secretary o( state, when the circumstances stated in the
a((ida'its occurred, was called upon to *i'e testimony" He ob+ected to answerin*" The 1uestions
were put in writin*"
The court said there was nothin* con(idential re1uired to be disclosed" 7( there had been, he was
not obli*ed to answer it, and i( he thou*ht any thin* was communicated to him con(identially he
was not bound to disclose, nor was he obli*ed to state any thin* which would criminate himsel("
The 1uestions ar*ued by the counsel (or the relators were, 1" Whether the supreme court can
award the writ o( mandamus in any case" 8" Whether it will lie to a secretary o( state, in any case
whate'er" $" Whether in the present case the court may award a mandamus to )ames Madison,
secretary o( state"
[ !"#" 1$%, 1$&
Mr" ,hie( )ustice MAR#HA66 deli'ered the opinion o( the court"
At the last term, on the a((ida'its then read and (iled with the cler5, a rule was *ranted in this
case, re1uirin* the secretary o( state to show cause why a mandamus [ !"#" 1$%, 19& should
not issue, directin* him to deli'er to William Marbury his commission as a +ustice o( the peace
(or the county o( Washin*ton, in the district o( ,olumbia"
:o cause has been shown, and the present motion is (or a mandamus" The peculiar delicacy o(
this case, the no'elty o( some o( its circumstances, and the real di((iculty attendin* the points
which occur in it, re1uire a complete e0position o( the principles on which the opinion to be
*i'en by the court is (ounded"
These principles ha'e been, on the side o( the applicant, 'ery ably ar*ued at the bar" 7n
renderin* the opinion o( the court, there will be some departure in (orm, thou*h not in
substance, (rom the points stated in that ar*ument"
7n the order in which the court has 'iewed this sub+ect, the (ollowin* 1uestions ha'e been
considered and decided"
1. Has the applicant a ri*ht to the commission he demands;
/. 7( he has a ri*ht, and that ri*ht has been 'iolated, do the laws o( his country a((ord him a
remedy;
3. 7( they do a((ord him a remedy, is it a mandamus issuin* (rom this court;
The (irst ob+ect o( in1uiry is,
1. Has the applicant a ri*ht to the commission he demands;
His ri*ht ori*inates in an act o( con*ress passed in <ebruary 1801, concernin* the district o(
,olumbia"
A(ter di'idin* the district into two counties, the ele'enth section o( this law enacts, =that there
shall be appointed in and (or each o( the said counties, such number o( discreet persons to be
+ustices o( the peace as the president o( the !nited #tates shall, (rom time to time, thin5
e0pedient, to continue in o((ice (or (i'e years" [ !"#" 1$%, 1& 7t appears (rom the a((ida'its,
that in compliance with this law, a commission (or William Marbury as a +ustice o( peace (or the
county o( Washin*ton was si*ned by )ohn Adams, then president o( the !nited #tates. a(ter
which the seal o( the !nited #tates was a((i0ed to it. but the commission has ne'er reached the
person (or whom it was made out"
7n order to determine whether he is entitled to this commission, it becomes necessary to in1uire
whether he has been appointed to the o((ice" <or i( he has been appointed, the law continues him
in o((ice (or (i'e years, and he is entitled to the possession o( those e'idences o( o((ice, which,
bein* completed, became his property"
The second section o( the second article o( the constitution declares, =the president shall
nominate, and, by and with the ad'ice and consent o( the senate, shall appoint ambassadors,
other public ministers and consuls, and all other o((icers o( the !nited #tates, whose
appointments are not otherwise pro'ided (or"=
The third section declares, that =he shall commission all the o((icers o( the !nited #tates"=
An act o( con*ress directs the secretary o( state to 5eep the seal o( the !nited #tates, =to ma5e out
and record, and a((i0 the said seal to all ci'il commissions to o((icers o( the !nited #tates to be
appointed by the president, by and with the consent o( the senate, or by the president alone.
pro'ided that the said seal shall not be a((i0ed to any commission be(ore the same shall ha'e
been si*ned by the president o( the !nited #tates"=
These are the clauses o( the constitution and laws o( the !nited #tates, which a((ect this part o(
the case" They seem to contemplate three distinct operations-
1. The nomination" This is the sole act o( the president, and is completely 'oluntary"
/. The appointment" This is also the act o( the president, and is also a 'oluntary act, thou*h it
can only be per(ormed by and with the ad'ice and consent o( the senate" [ !"#" 1$%, 1>& $" The
commission" To *rant a commission to a person appointed, mi*ht perhaps be deemed a duty
en+oined by the constitution" =He shall,= says that instrument, =commission all the o((icers o( the
!nited #tates"=
The acts o( appointin* to o((ice, and commissionin* the person appointed, can scarcely be
considered as one and the same. since the power to per(orm them is *i'en in two separate and
distinct sections o( the constitution" The distinction between the appointment and the
commission will be rendered more apparent by ad'ertin* to that pro'ision in the second section
o( the second article o( the constitution, which authorises con*ress =to 'est by law the
appointment o( such in(erior o((icers as they thin5 proper, in the president alone, in the courts
o( law, or in the heads o( departments.= thus contemplatin* cases where the law may direct the
president to commission an o((icer appointed by the courts or by the heads o( departments" 7n
such a case, to issue a commission would be apparently a duty distinct (rom the appointment,
the per(ormance o( which perhaps, could not le*ally be re(used"
Althou*h that clause o( the constitution which re1uires the president to commission all the
o((icers o( the !nited #tates, may ne'er ha'e been applied to o((icers appointed otherwise than
by himsel(, yet it would be di((icult to deny the le*islati'e power to apply it to such cases" ?(
conse1uence the constitutional distinction between the appointment to an o((ice and the
commission o( an o((icer who has been appointed, remains the same as i( in practice the
president had commissioned o((icers appointed by an authority other than his own"
7t (ollows too, (rom the e0istence o( this distinction, that, i( an appointment was to be e'idenced
by any public act other than the commission, the per(ormance o( such public act would create
the o((icer. and i( he was not remo'able at the will o( the president, would either *i'e him a ri*ht
to his commission, or enable him to per(orm the duties without it"
These obser'ations are premised solely (or the purpose o( renderin* more intelli*ible those
which apply more directly to the particular case under consideration" [ !"#" 1$%, 1%& This is
an appointment made by the president, by and with the ad'ice and consent o( the senate, and is
e'idenced by no act but the commission itsel(" 7n such a case there(ore the commission and the
appointment seem inseparable. it bein* almost impossible to show an appointment otherwise
than by pro'in* the e0istence o( a commission- still the commission is not necessarily the
appointment. thou*h conclusi'e e'idence o( it"
4ut at what sta*e does it amount to this conclusi'e e'idence;
The answer to this 1uestion seems an ob'ious one" The appointment bein* the sole act o( the
president, must be completely e'idenced, when it is shown that he has done e'ery thin* to be
per(ormed by him"
#hould the commission, instead o( bein* e'idence o( an appointment, e'en be considered as
constitutin* the appointment itsel(. still it would be made when the last act to be done by the
president was per(ormed, or, at (urthest, when the commission was complete"
The last act to be done by the president, is the si*nature o( the commission" He has then acted
on the ad'ice and consent o( the senate to his own nomination" The time (or deliberation has
then passed" He has decided" His +ud*ment, on the ad'ice and consent o( the senate concurrin*
with his nomination, has been made, and the o((icer is appointed" This appointment is
e'idenced by an open, une1ui'ocal act. and bein* the last act re1uired (rom the person ma5in*
it, necessarily e0cludes the idea o( its bein*, so (ar as it respects the appointment, an inchoate
and incomplete transaction"
#ome point o( time must be ta5en when the power o( the e0ecuti'e o'er an o((icer, not
remo'able at his will, must cease" That point o( time must be when the constitutional power o(
appointment has been e0ercised" And this power has been e0ercised when the last act, re1uired
(rom the person possessin* the power, has been per(ormed" This last act is the si*nature o( the
commission" This idea seems to ha'e pre'ailed with the le*islature, when the act passed
con'ertin* the department [ !"#" 1$%, 18& o( (orei*n a((airs into the department o( state" 4y
that act it is enacted, that the secretary o( state shall 5eep the seal o( the !nited #tates, =and shall
ma5e out and record, and shall a((i0 the said seal to all ci'il commissions to o((icers o( the
!nited #tates, to be appointed by the president-= =pro'ided that the said seal shall not be a((i0ed
to any commission, be(ore the same shall ha'e been si*ned by the president o( the !nited
#tates. nor to any other instrument or act, without the special warrant o( the president there(or"=
The si*nature is a warrant (or a((i0in* the *reat seal to the commission. and the *reat seal is only
to be a((i0ed to an instrument which is complete" 7t attests, by an act supposed to be o( public
notoriety, the 'erity o( the presidential si*nature"
7t is ne'er to be a((i0ed till the commission is si*ned, because the si*nature, which *i'es (orce
and e((ect to the commission, is conclusi'e e'idence that the appointment is made"
The commission bein* si*ned, the subse1uent duty o( the secretary o( state is prescribed by law,
and not to be *uided by the will o( the president" He is to a((i0 the seal o( the !nited #tates to the
commission, and is to record it"
This is not a proceedin* which may be 'aried, i( the +ud*ment o( the e0ecuti'e shall su**est one
more eli*ible, but is a precise course accurately mar5ed out by law, and is to be strictly pursued"
7t is the duty o( the secretary o( state to con(orm to the law, and in this he is an o((icer o( the
!nited #tates, bound to obey the laws" He acts, in this respect, as has been 'ery properly stated
at the bar, under the authority o( law, and not by the instructions o( the president" 7t is a
ministerial act which the law en+oins on a particular o((icer (or a particular purpose"
7( it should be supposed, that the solemnity o( a((i0in* the seal, is necessary not only to the
'alidity o( the commission, but e'en to the completion o( an appointment, still when the seal is
a((i0ed the appointment is made, and [ !"#" 1$%, 13& the commission is 'alid" :o other
solemnity is re1uired by law. no other act is to be per(ormed on the part o( *o'ernment" All that
the e0ecuti'e can do to in'est the person with his o((ice, is done. and unless the appointment be
then made, the e0ecuti'e cannot ma5e one without the co2 operation o( others"
A(ter searchin* an0iously (or the principles on which a contrary opinion may be supported, none
ha'e been (ound which appear o( su((icient (orce to maintain the opposite doctrine"
#uch as the ima*ination o( the court could su**est, ha'e been 'ery deliberately e0amined, and
a(ter allowin* them all the wei*ht which it appears possible to *i'e them, they do not sha5e the
opinion which has been (ormed"
7n considerin* this 1uestion, it has been con+ectured that the commission may ha'e been
assimilated to a deed, to the 'alidity o( which, deli'ery is essential"
This idea is (ounded on the supposition that the commission is not merely e'idence o( an
appointment, but is itsel( the actual appointment. a supposition by no means un1uestionable"
4ut (or the purpose o( e0aminin* this ob+ection (airly, let it be conceded, that the principle,
claimed (or its support, is established"
The appointment bein*, under the constitution, to be made by the president personally, the
deli'ery o( the deed o( appointment, i( necessary to its completion, must be made by the
president also" 7t is not necessary that the li'ery should be made personally to the *rantee o( the
o((ice- it ne'er is so made" The law would seem to contemplate that it should be made to the
secretary o( state, since it directs the secretary to a((i0 the seal to the commission a(ter it shall
ha'e been si*ned by the president" 7( then the act o( li'ery be necessary to *i'e 'alidity to the
commission, it has been deli'ered when e0ecuted and *i'en to the secretary (or the purpose o(
bein* sealed, recorded, and transmitted to the party"
4ut in all cases o( letters patent, certain solemnities are re1uired by law, which solemnities are
the e'idences [ !"#" 1$%, 1>0& o( the 'alidity o( the instrument" A (ormal deli'ery to the person
is not amon* them" 7n cases o( commissions, the si*n manual o( the president, and the seal o(
the !nited #tates, are those solemnities" This ob+ection there(ore does not touch the case"
7t has also occurred as possible, and barely possible, that the transmission o( the commission,
and the acceptance thereo(, mi*ht be deemed necessary to complete the ri*ht o( the plainti(("
The transmission o( the commission is a practice directed by con'enience, but not by law" 7t
cannot there(ore be necessary to constitute the appointment which must precede it, and which is
the mere act o( the president" 7( the e0ecuti'e re1uired that e'ery person appointed to an o((ice,
should himsel( ta5e means to procure his commission, the appointment would not be the less
'alid on that account" The appointment is the sole act o( the president. the transmission o( the
commission is the sole act o( the o((icer to whom that duty is assi*ned, and may be accelerated
or retarded by circumstances which can ha'e no in(luence on the appointment" A commission is
transmitted to a person already appointed. not to a person to be appointed or not, as the letter
enclosin* the commission should happen to *et into the post2o((ice and reach him in sa(ety, or
to miscarry"
7t may ha'e some tendency to elucidate this point, to in1uire, whether the possession o( the
ori*inal commission be indispensably necessary to authori@e a person, appointed to any o((ice,
to per(orm the duties o( that o((ice" 7( it was necessary, then a loss o( the commission would lose
the o((ice" :ot only ne*li*ence, but accident or (raud, (ire or the(t, mi*ht depri'e an indi'idual o(
his o((ice" 7n such a case, 7 presume it could not be doubted, but that a copy (rom the record o(
the o((ice o( the secretary o( state, would be, to e'ery intent and purpose, e1ual to the ori*inal"
The act o( con*ress has e0pressly made it so" To *i'e that copy 'alidity, it would not be necessary
to pro'e that the ori*inal had been transmitted and a(terwards lost" The copy would be complete
e'idence that the ori*inal had e0isted, and that the appointment had been made, but not that
the ori*inal had been transmitted" 7( indeed it should appear that [ !"#" 1$%, 1>1& the ori*inal
had been mislaid in the o((ice o( state, that circumstance would not a((ect the operation o( the
copy" When all the re1uisites ha'e been per(ormed which authori@e a recordin* o((icer to record
any instrument whate'er, and the order (or that purpose has been *i'en, the instrument is in
law considered as recorded, althou*h the manual labour o( insertin* it in a boo5 5ept (or that
purpose may not ha'e been per(ormed"
7n the case o( commissions, the law orders the secretary o( state to record them" When there(ore
they are si*ned and sealed, the order (or their bein* recorded is *i'en. and whether inserted in
the boo5 or not, they are in law recorded"
A copy o( this record is declared e1ual to the ori*inal, and the (ees to be paid by a person
re1uirin* a copy are ascertained by law" ,an a 5eeper o( a public record erase there(rom a
commission which has been recorded; ?r can he re(use a copy thereo( to a person demandin* it
on the terms prescribed by law;
#uch a copy would, e1ually with the ori*inal, authori@e the +ustice o( peace to proceed in the
per(ormance o( his duty, because it would, e1ually with the ori*inal, attest his appointment"
7( the transmission o( a commission be not considered as necessary to *i'e 'alidity to an
appointment. still less is its acceptance" The appointment is the sole act o( the president. the
acceptance is the sole act o( the o((icer, and is, in plain common sense, posterior to the
appointment" As he may resi*n, so may he re(use to accept- but neither the one nor the other is
capable o( renderin* the appointment a nonentity"
That this is the understandin* o( the *o'ernment, is apparent (rom the whole tenor o( its
conduct"
A commission bears date, and the salary o( the o((icer commences (rom his appointment. not
(rom the transmission or acceptance o( his commission" When a person, appointed to any o((ice,
re(uses to accept that o((ice, the successor is nominated in the place o( the person who [ !"#"
1$%, 1>8& has declined to accept, and not in the place o( the person who had been pre'iously in
o((ice and had created the ori*inal 'acancy"
7t is there(ore decidedly the opinion o( the court, that when a commission has been si*ned by the
president, the appointment is made. and that the commission is complete when the seal o( the
!nited #tates has been a((i0ed to it by the secretary o( state"
Where an o((icer is remo'able at the will o( the e0ecuti'e, the circumstance which completes his
appointment is o( no concern. because the act is at any time re'ocable. and the commission may
be arrested, i( still in the o((ice" 4ut when the o((icer is not remo'able at the will o( the e0ecuti'e,
the appointment is not re'ocable and cannot be annulled" 7t has con(erred le*al ri*hts which
cannot be resumed"
The discretion o( the e0ecuti'e is to be e0ercised until the appointment has been made" 4ut
ha'in* once made the appointment, his power o'er the o((ice is terminated in all cases, where by
law the o((icer is not remo'able by him" The ri*ht to the o((ice is then in the person appointed,
and he has the absolute, unconditional power o( acceptin* or re+ectin* it"
Mr" Marbury, then, since his commission was si*ned by the president and sealed by the
secretary o( state, was appointed. and as the law creatin* the o((ice *a'e the o((icer a ri*ht to
hold (or (i'e years independent o( the e0ecuti'e, the appointment was not re'ocable. but 'ested
in the o((icer le*al ri*hts which are protected by the laws o( his country"
To withhold the commission, there(ore, is an act deemed by the court not warranted by law, but
'iolati'e o( a 'ested le*al ri*ht"
This brin*s us to the second in1uiry. which is,
/. 7( he has a ri*ht, and that ri*ht has been 'iolated, do the laws o( his country a((ord him a
remedy; [ !"#" 1$%, 1>$& The 'ery essence o( ci'il liberty certainly consists in the ri*ht o( e'ery
indi'idual to claim the protection o( the laws, whene'er he recei'es an in+ury" ?ne o( the (irst
duties o( *o'ernment is to a((ord that protection" 7n Areat 4ritain the 5in* himsel( is sued in the
respect(ul (orm o( a petition, and he ne'er (ails to comply with the +ud*ment o( his court"
7n the third 'olume o( his ,ommentaries, pa*e 8$, 4lac5stone states two cases in which a
remedy is a((orded by mere operation o( law"
=7n all other cases,= he says, =it is a *eneral and indisputable rule, that where there is a le*al ri*ht,
there is also a le*al remedy by suit or action at law whene'er that ri*ht is in'aded"=
And a(terwards, pa*e 103 o( the same 'olume, he says, =7 am ne0t to consider such in+uries as are
co*ni@able by the courts o( common law" And herein 7 shall (or the present only remar5, that all
possible in+uries whatsoe'er, that did not (all within the e0clusi'e co*ni@ance o( either the
ecclesiastical, military, or maritime tribunals, are, (or that 'ery reason, within the co*ni@ance o(
the common law courts o( +ustice. (or it is a settled and in'ariable principle in the laws o(
Bn*land, that e'ery ri*ht, when withheld, must ha'e a remedy, and e'ery in+ury its proper
redress"=
The *o'ernment o( the !nited #tates has been emphatically termed a *o'ernment o( laws, and
not o( men" 7t will certainly cease to deser'e this hi*h appellation, i( the laws (urnish no remedy
(or the 'iolation o( a 'ested le*al ri*ht"
7( this oblo1uy is to be cast on the +urisprudence o( our country, it must arise (rom the peculiar
character o( the case"
7t beho'es us then to in1uire whether there be in its composition any in*redient which shall
e0empt (rom le*al in'esti*ation, or e0clude the in+ured party (rom le*al redress" 7n pursuin* this
in1uiry the (irst 1uestion which presents itsel(, is, whether this can be arran*ed [ !"#" 1$%,
1>9& with that class o( cases which come under the description o( damnum abs1ue in+uria2a
loss without an in+ury"
This description o( cases ne'er has been considered, and it is belie'ed ne'er can be considered
as comprehendin* o((ices o( trust, o( honour or o( pro(it" The o((ice o( +ustice o( peace in the
district o( ,olumbia is such an o((ice. it is there(ore worthy o( the attention and *uardianship o(
the laws" 7t has recei'ed that attention and *uardianship" 7t has been created by special act o(
con*ress, and has been secured, so (ar as the laws can *i'e security to the person appointed to
(ill it, (or (i'e years" 7t is not then on account o( the worthlessness o( the thin* pursued, that the
in+ured party can be alle*ed to be without remedy"
7s it in the nature o( the transaction; 7s the act o( deli'erin* or withholdin* a commission to be
considered as a mere political act belon*in* to the e0ecuti'e department alone, (or the
per(ormance o( which entire con(idence is placed by our constitution in the supreme e0ecuti'e.
and (or any misconduct respectin* which, the in+ured indi'idual has no remedy"
That there may be such cases is not to be 1uestioned. but that e'ery act o( duty to be per(ormed
in any o( the *reat departments o( *o'ernment constitutes such a case, is not to be admitted"
4y the act concernin* in'alids, passed in )une 1%39, the secretary at war is ordered to place on
the pension list all persons whose names are contained in a report pre'iously made by him to
con*ress" 7( he should re(use to do so, would the wounded 'eteran be without remedy; 7s it to be
contended that where the law in precise terms directs the per(ormance o( an act in which an
indi'idual is interested, the law is incapable o( securin* obedience to its mandate; 7s it on
account o( the character o( the person a*ainst whom the complaint is made; 7s it to be
contended that the heads o( departments are not amenable to the laws o( their country;
Whate'er the practice on particular occasions may be, the theory o( this principle will certainly
ne'er be main2 [ !"#" 1$%, 1>& tained" :o act o( the le*islature con(ers so e0traordinary a
pri'ile*e, nor can it deri'e countenance (rom the doctrines o( the common law" A(ter statin* that
personal in+ury (rom the 5in* to a sub+ect is presumed to be impossible, 4lac5stone, Col" 777" p"
8, says, =but in+uries to the ri*hts o( property can scarcely be committed by the crown without
the inter'ention o( its o((icers- (or whom, the law, in matters o( ri*ht, entertains no respect or
delicacy. but (urnishes 'arious methods o( detectin* the errors and misconduct o( those a*ents
by whom the 5in* has been decei'ed and induced to do a temporary in+ustice"=
4y the act passed in 1%3>, authori@in* the sale o( the lands abo'e the mouth o( Dentuc5y ri'er,
the purchaser, on payin* his purchase money, becomes completely entitled to the property
purchased. and on producin* to the secretary o( state the receipt o( the treasurer upon a
certi(icate re1uired by the law, the president o( the !nited #tates is authori@ed to *rant him a
patent" 7t is (urther enacted that all patents shall be countersi*ned by the secretary o( state, and
recorded in his o((ice" 7( the secretary o( state should choose to withhold this patent. or the
patent bein* lost, should re(use a copy o( it. can it be ima*ined that the law (urnishes to the
in+ured person no remedy;
7t is not belie'ed that any person whate'er would attempt to maintain such a proposition"
7t (ollows then that the 1uestion, whether the le*ality o( an act o( the head o( a department be
e0aminable in a court o( +ustice or not, must always depend on the nature o( that act"
7( some acts be e0aminable, and others not, there must be some rule o( law to *uide the court in
the e0ercise o( its +urisdiction"
7n some instances there may be di((iculty in applyin* the rule to particular cases. but there
cannot, it is belie'ed, be much di((iculty in layin* down the rule"
4y the constitution o( the !nited #tates, the president is in'ested with certain important
political powers, in the [ !"#" 1$%, 1>>& e0ercise o( 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 per(ormance o( these duties, he is authori@ed to appoint certain o((icers, who act by his
authority and in con(ormity with his orders"
7n such cases, their acts are his acts. and whate'er opinion may be entertained o( the manner in
which e0ecuti'e discretion may be used, still there e0ists, and can e0ist, no power to control that
discretion" The sub+ects are political" They respect the nation, not indi'idual ri*hts, and bein*
entrusted to the e0ecuti'e, the decision o( the e0ecuti'e is conclusi'e" The application o( this
remar5 will be percei'ed by ad'ertin* to the act o( con*ress (or establishin* the department o(
(orei*n a((airs" This o((icer, as his duties were prescribed by that act, is to con(orm precisely to
the will o( the president" He is the mere or*an by whom that will is communicated" The acts o(
such an o((icer, as an o((icer, can ne'er be e0aminable by the courts"
4ut when the le*islature proceeds to impose on that o((icer other duties. when he is directed
peremptorily to per(orm certain acts. when the ri*hts o( indi'iduals are dependent on the
per(ormance o( those acts. he is so (ar the o((icer o( the law. is amenable to the laws (or his
conduct. and cannot at his discretion sport away the 'ested ri*hts o( others"
The conclusion (rom this reasonin* is, that where the heads o( departments are the political or
con(idential a*ents o( the e0ecuti'e, merely to e0ecute the will o( the president, or rather to act
in cases in which the e0ecuti'e possesses a constitutional or le*al discretion, nothin* can be
more per(ectly clear than that their acts are only politically e0aminable" 4ut where a speci(ic
duty is assi*ned by law, and indi'idual ri*hts depend upon the per(ormance o( that duty, it
seems e1ually clear that the indi'idual who considers himsel( in+ured has a ri*ht to resort to the
laws o( his country (or a remedy"
7( this be the rule, let us in1uire how it applies to the case under the consideration o( the
court" [ !"#" 1$%, 1>%& The power o( nominatin* to the senate, and the power o( appointin* the
person nominated, are political powers, to be e0ercised by the president accordin* to his own
discretion" When he has made an appointment, he has e0ercised his whole power, and his
discretion has been completely applied to the case" 7(, by law, the o((icer be remo'able at the will
o( the president, then a new appointment may be immediately made, and the ri*hts o( the o((icer
are terminated" 4ut as a (act which has e0isted cannot be made ne'er to ha'e e0isted, the
appointment cannot be annihilated. and conse1uently i( the o((icer is by law not remo'able at
the will o( the president, the ri*hts he has ac1uired are protected by the law, and are not
resumable by the president" They cannot be e0tin*uished by e0ecuti'e authority, and he has the
pri'ile*e o( assertin* them in li5e manner as i( they had been deri'ed (rom any other source"
The 1uestion whether a ri*ht has 'ested or not, is, in its nature, +udicial, and must be tried by
the +udicial authority, 7(, (or e0ample, Mr" Marbury had ta5en the oaths o( a ma*istrate, and
proceeded to act as one. in conse1uence o( which a suit had been instituted a*ainst him, in
which his de(ence had depended on his bein* a ma*istrate. the 'alidity o( his appointment must
ha'e been determined by +udicial authority"
#o, i( he concei'es that by 'irtue o( his appointment he has a le*al ri*ht either to the commission
which has been made out (or him or to a copy o( that commission, it is e1ually a 1uestion
e0aminable in a court, and the decision o( the court upon it must depend on the opinion
entertained o( his appointment"
That 1uestion has been discussed, and the opinion is, that the latest point o( time which can be
ta5en as that at which the appointment was complete, and e'idenced, was when, a(ter the
si*nature o( the president, the seal o( the !nited #tates was a((i0ed to the commission"
7t is then the opinion o( the court,
1. That by si*nin* the commission o( Mr" Marbury, the president o( the !nited #tates appointed
him a +ustice [ !"#" 1$%, 1>8& o( peace (or the county o( Washin*ton in the district o(
,olumbia. and that the seal o( the !nited #tates, a((i0ed thereto by the secretary o( state, is
conclusi'e testimony o( the 'erity o( the si*nature, and o( the completion o( the appointment.
and that the appointment con(erred on him a le*al ri*ht to the o((ice (or the space o( (i'e years"
/. That, ha'in* this le*al title to the o((ice, he has a conse1uent ri*ht to the commission. a
re(usal to deli'er which is a plain 'iolation o( that ri*ht, (or which the laws o( his country a((ord
him a remedy"
7t remains to be in1uired whether,
3. He is entitled to the remedy (or which he applies" This depends on,
1. The nature o( the writ applied (or" And,
/. The power o( this court"
1. The nature o( the writ"
4lac5stone, in the third 'olume o( his ,ommentaries, pa*e 110, de(ines a mandamus to be, =a
command issuin* in the 5in*=s name (rom the court o( 5in*=s bench, and directed to any person,
corporation, or in(erior court o( +udicature within the 5in*=s dominions, re1uirin* them to do
some particular thin* therein speci(ied which appertains to their o((ice and duty, and which the
court o( 5in*=s bench has pre'iously determined, or at least supposes, to be consonant to ri*ht
and +ustice"=
6ord Mans(ield, in $ 4urrows, 18>>, in the case o( The Din* '" 4a5er et al" states with much
precision and e0plicitness the cases in which this writ may be used"
=Whene'er,= says that 'ery able +ud*e, =there is a ri*ht to e0ecute an o((ice, per(orm a ser'ice, or
e0ercise a (ranchise Emore especially i( it be in a matter o( public concern or attended with
pro(itF, and a person is 5ept out o( possession, or dispossessed o( such ri*ht, and [ !"#" 1$%,
1>3& has no other speci(ic le*al remedy, this court ou*ht to assist by mandamus, upon reasons
o( +ustice, as the writ e0presses, and upon reasons o( public policy, to preser'e peace, order and
*ood *o'ernment"= 7n the same case he says, =this writ ou*ht to be used upon all occasions where
the law has established no speci(ic remedy, and where in +ustice and *ood *o'ernment there
ou*ht to be one"=
7n addition to the authorities now particularly cited, many others were relied on at the bar,
which show how (ar the practice has con(ormed to the *eneral doctrines that ha'e been +ust
1uoted"
This writ, i( awarded, would be directed to an o((icer o( *o'ernment, and its mandate to him
would be, to use the words o( 4lac5stone, =to do a particular thin* therein speci(ied, which
appertains to his o((ice and duty, and which the court has pre'iously determined or at least
supposes to be consonant to ri*ht and +ustice"= ?r, in the words o( 6ord Mans(ield, the applicant,
in this case, has a ri*ht to e0ecute an o((ice o( public concern, and is 5ept out o( possession o(
that ri*ht"
These circumstances certainly concur in this case"
#till, to render the mandamus a proper remedy, the o((icer to whom it is to be directed, must be
one to whom, on le*al principles, such writ may be directed. and the person applyin* (or it must
be without any other speci(ic and le*al remedy"
1. With respect to the o((icer to whom it would be directed" The intimate political relation,
subsistin* between the president o( the !nited #tates and the heads o( departments, necessarily
renders any le*al in'esti*ation o( the acts o( one o( those hi*h o((icers peculiarly ir5some, as well
as delicate. and e0cites some hesitation with respect to the propriety o( enterin* into such
in'esti*ation" 7mpressions are o(ten recei'ed without much re(lection or e0amination. and it is
not wonder(ul that in such a case as this, the assertion, by an indi'idual, o( his le*al claims in a
court o( +ustice, to which claims it is the duty o( that court to attend, should at (irst 'iew be
considered [ !"#" 1$%, 1%0& by some, as an attempt to intrude into the cabinet, and to
intermeddle with the prero*ati'es o( the e0ecuti'e"
7t is scarcely necessary (or the court to disclaim all pretensions to such a +urisdiction" An
e0tra'a*ance, so absurd and e0cessi'e, could not ha'e been entertained (or a moment" The
pro'ince o( the court is, solely, to decide on the ri*hts o( indi'iduals, not to in1uire how the
e0ecuti'e, or e0ecuti'e o((icers, per(orm duties in which they ha'e a discretion" Guestions, in
their nature political, or which are, by the constitution and laws, submitted to the e0ecuti'e, can
ne'er be made in this court"
4ut, i( this be not such a 1uestion. i( so (ar (rom bein* an intrusion into the secrets o( the
cabinet, it respects a paper, which, accordin* to law, is upon record, and to a copy o( which the
law *i'es a ri*ht, on the payment o( ten cents. i( it be no intermeddlin* with a sub+ect, o'er
which the e0ecuti'e can be considered as ha'in* e0ercised any control. what is there in the
e0alted station o( the o((icer, which shall bar a citi@en (rom assertin*, in a court o( +ustice, his
le*al ri*hts, or shall (orbid a court to listen to the claim. or to issue a mandamus, directin* the
per(ormance o( a duty, not dependin* on e0ecuti'e discretion, but on particular acts o( con*ress
and the *eneral principles o( law;
7( one o( the heads o( departments commits any ille*al act, under colour o( his o((ice, by which
an indi'idual sustains an in+ury, it cannot be pretended that his o((ice alone e0empts him (rom
bein* sued in the ordinary mode o( proceedin*, and bein* compelled to obey the +ud*ment o( the
law" How then can his o((ice e0empt him (rom this particular mode o( decidin* on the le*ality o(
his conduct, i( the case be such a case as would, were any other indi'idual the party complained
o(, authori@e the process;
7t is not by the o((ice o( the person to whom the writ is directed, but the nature o( the thin* to be
done, that the propriety or impropriety o( issuin* a mandamus is to be determined" Where the
head o( a department acts in a case in which e0ecuti'e discretion is to be e0ercised. in which he
is the mere or*an o( e0ecuti'e will. it is [ !"#" 1$%, 1%1& a*ain repeated, that any application to
a court to control, in any respect, his conduct, would be re+ected without hesitation"
4ut where he is directed by law to do a certain act a((ectin* the absolute ri*hts o( indi'iduals, in
the per(ormance o( which he is not placed under the particular direction o( the president, and
the per(ormance o( which the president cannot law(ully (orbid, and there(ore is ne'er presumed
to ha'e (orbidden. as (or e0ample, to record a commission, or a patent (or land, which has
recei'ed all the le*al solemnities. or to *i'e a copy o( such record. in such cases, it is not
percei'ed on what *round the courts o( the country are (urther e0cused (rom the duty o( *i'in*
+ud*ment, that ri*ht to be done to an in+ured indi'idual, than i( the same ser'ices were to be
per(ormed by a person not the head o( a department"
This opinion seems not now (or the (irst time to be ta5en up in this country"
7t must be well recollected that in 1%38 an act passed, directin* the secretary at war to place on
the pension list such disabled o((icers and soldiers as should be reported to him by the circuit
courts, which act, so (ar as the duty was imposed on the courts, was deemed unconstitutional.
but some o( the +ud*es, thin5in* that the law mi*ht be e0ecuted by them in the character o(
commissioners, proceeded to act and to report in that character"
This law bein* deemed unconstitutional at the circuits, was repealed, and a di((erent system was
established. but the 1uestion whether those persons, who had been reported by the +ud*es, as
commissioners, were entitled, in conse1uence o( that report, to be placed on the pension list,
was a le*al 1uestion, properly determinable in the courts, althou*h the act o( placin* such
persons on the list was to be per(ormed by the head o( a department"
That this 1uestion mi*ht be properly settled, con*ress passed an act in <ebruary 1%3$, ma5in* it
the duty o( the secretary o( war, in con+unction with the attorney *eneral, to ta5e such measures
as mi*ht be necessary to obtain an ad+udication o( the supreme court o( the !nited [ !"#" 1$%,
1%8& #tates on the 'alidity o( any such ri*hts, claimed under the act a(oresaid"
A(ter the passa*e o( this act, a mandamus was mo'ed (or, to be directed to the secretary at war,
commandin* him to place on the pension list a person statin* himsel( to be on the report o( the
+ud*es"
There is, there(ore, much reason to belie'e, that this mode o( tryin* the le*al ri*ht o( the
complainant, was deemed by the head o( a department, and by the hi*hest law o((icer o( the
!nited #tates, the most proper which could be selected (or the purpose"
When the sub+ect was brou*ht be(ore the court the decision was, not, that a mandamus would
not lie to the head o( a department, directin* him to per(orm an act, en+oined by law, in the
per(ormance o( which an indi'idual had a 'ested interest. but that a mandamus ou*ht not to
issue in that case2the decision necessarily to be made i( the report o( the commissioners did not
con(er on the applicant a le*al ri*ht"
The +ud*ment in that case is understood to ha'e decided the merits o( all claims o( that
description. and the persons, on the report o( the commissioners, (ound it necessary to pursue
the mode prescribed by the law subse1uent to that which had been deemed unconstitutional, in
order to place themsel'es on the pension list"
The doctrine, there(ore, now ad'anced is by no means a no'el one"
7t is true that the mandamus, now mo'ed (or, is not (or the per(ormance o( an act e0pressly
en+oined by statute"
7t is to deli'er a commission. on which sub+ects the acts o( con*ress are silent" This di((erence is
not considered as a((ectin* the case" 7t has already been stated that the applicant has, to that
commission, a 'ested le*al ri*ht, o( which the e0ecuti'e cannot depri'e him" He has been
appointed to an o((ice, (rom which he is not remo'able at the will o( the e0ecuti'e. and bein*
so [ !"#" 1$%, 1%$& appointed, he has a ri*ht to the commission which the secretary has
recei'ed (rom the president (or his use" The act o( con*ress does not indeed order the secretary
o( state to send it to him, but it is placed in his hands (or the person entitled to it. and cannot be
more law(ully withheld by him, than by another person"
7t was at (irst doubted whether the action o( detinue was not a speci(ic le*al remedy (or the
commission which has been withheld (rom Mr" Marbury. in which case a mandamus would be
improper" 4ut this doubt has yielded to the consideration that the +ud*ment in detinue is (or the
thin* itsel(, or its 'alue" The 'alue o( a public o((ice not to be sold, is incapable o( bein*
ascertained. and the applicant has a ri*ht to the o((ice itsel(, or to nothin*" He will obtain the
o((ice by obtainin* the commission, or a copy o( it (rom the record"
This, then, is a plain case o( a mandamus, either to deli'er the commission, or a copy o( it (rom
the record. and it only remains to be in1uired,
Whether it can issue (rom this court"
The act to establish the +udicial courts o( the !nited #tates authori@es the supreme court =to
issue writs o( mandamus, in cases warranted by the principles and usa*es o( law, to any courts
appointed, or persons holdin* o((ice, under the authority o( the !nited #tates"=
The secretary o( state, bein* a person, holdin* an o((ice under the authority o( the !nited #tates,
is precisely within the letter o( the description. and i( this court is not authori@ed to issue a writ
o( mandamus to such an o((icer, it must be because the law is unconstitutional, and there(ore
absolutely incapable o( con(errin* the authority, and assi*nin* the duties which its words
purport to con(er and assi*n"
The constitution 'ests the whole +udicial power o( the !nited #tates in one supreme court, and
such in(erior courts as con*ress shall, (rom time to time, ordain and establish" This power is
e0pressly e0tended to all cases arisin* under the laws o( the !nited #tates. and conse1uently, in
some (orm, may be e0ercised o'er the present [ !"#" 1$%, 1%9& case. because the ri*ht claimed
is *i'en by a law o( the !nited #tates"
7n the distribution o( this power it is declared that =the supreme court shall ha'e ori*inal
+urisdiction in all cases a((ectin* ambassadors, other public ministers and consuls, and those in
which a state shall be a party" 7n all other cases, the supreme court shall ha'e appellate
+urisdiction"=
7t has been insisted at the bar, that as the ori*inal *rant o( +urisdiction to the supreme and
in(erior courts is *eneral, and the clause, assi*nin* ori*inal +urisdiction to the supreme court,
contains no ne*ati'e or restricti'e words. the power remains to the le*islature to assi*n ori*inal
+urisdiction to that court in other cases than those speci(ied in the article which has been recited.
pro'ided those cases belon* to the +udicial power o( the !nited #tates"
7( it had been intended to lea'e it in the discretion o( the le*islature to apportion the +udicial
power between the supreme and in(erior courts accordin* to the will o( that body, it would
certainly ha'e been useless to ha'e proceeded (urther than to ha'e de(ined the +udicial power,
and the tribunals in which it should be 'ested" The subse1uent part o( the section is mere
surplusa*e, is entirely without meanin*, i( such is to be the construction" 7( con*ress remains at
liberty to *i'e this court appellate +urisdiction, where the constitution has declared their
+urisdiction shall be ori*inal. and ori*inal +urisdiction where the constitution has declared it
shall be appellate. the distribution o( +urisdiction made in the constitution, is (orm without
substance"
A((irmati'e words are o(ten, in their operation, ne*ati'e o( other ob+ects than those a((irmed.
and in this case, a ne*ati'e or e0clusi'e sense must be *i'en to them or they ha'e no operation at
all"
7t cannot be presumed that any clause in the constitution is intended to be without e((ect. and
there(ore such construction is inadmissible, unless the words re1uire it" [ !"#" 1$%, 1%& 7( the
solicitude o( the con'ention, respectin* our peace with (orei*n powers, induced a pro'ision that
the supreme court should ta5e ori*inal +urisdiction in cases which mi*ht be supposed to a((ect
them. yet the clause would ha'e proceeded no (urther than to pro'ide (or such cases, i( no
(urther restriction on the powers o( con*ress had been intended" That they should ha'e
appellate +urisdiction in all other cases, with such e0ceptions as con*ress mi*ht ma5e, is no
restriction. unless the words be deemed e0clusi'e o( ori*inal +urisdiction"
When an instrument or*ani@in* (undamentally a +udicial system, di'ides it into one supreme,
and so many in(erior courts as the le*islature may ordain and establish. then enumerates its
powers, and proceeds so (ar to distribute them, as to de(ine the +urisdiction o( the supreme court
by declarin* the cases in which it shall ta5e ori*inal +urisdiction, and that in others it shall ta5e
appellate +urisdiction, the plain import o( the words seems to be, that in one class o( cases its
+urisdiction is ori*inal, and not appellate. in the other it is appellate, and not ori*inal" 7( any
other construction would render the clause inoperati'e, that is an additional reason (or re+ectin*
such other construction, and (or adherin* to the ob'ious meanin*"
To enable this court then to issue a mandamus, it must be shown to be an e0ercise o( appellate
+urisdiction, or to be necessary to enable them to e0ercise appellate +urisdiction"
7t has been stated at the bar that the appellate +urisdiction may be e0ercised in a 'ariety o(
(orms, and that i( it be the will o( the le*islature that a mandamus should be used (or that
purpose, that will must be obeyed" This is true. yet the +urisdiction must be appellate, not
ori*inal"
7t is the essential criterion o( appellate +urisdiction, that it re'ises and corrects the proceedin*s
in a cause already instituted, and does not create that case" Althou*h, there(ore, a mandamus
may be directed to courts, yet to issue such a writ to an o((icer (or the deli'ery o( a paper, is in
e((ect the same as to sustain an ori*inal action (or that paper, and there(ore seems not to belon*
to [ !"#" 1$%, 1%>& appellate, but to ori*inal +urisdiction" :either is it necessary in such a case
as this, to enable the court to e0ercise its appellate +urisdiction"
The authority, there(ore, *i'en to the supreme court, by the act establishin* the +udicial courts o(
the !nited #tates, to issue writs o( mandamus to public o((icers, appears not to be warranted by
the constitution. and it becomes necessary to in1uire whether a +urisdiction, so con(erred, can be
e0ercised"
The 1uestion, whether an act, repu*nant to the constitution, can become the law o( the land, is a
1uestion deeply interestin* to the !nited #tates. but, happily, not o( an intricacy proportioned to
its interest" 7t seems only necessary to reco*nise certain principles, supposed to ha'e been lon*
and well established, to decide it"
That the people ha'e an ori*inal ri*ht to establish, (or their (uture *o'ernment, such principles
as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole
American (abric has been erected" The e0ercise o( this ori*inal ri*ht is a 'ery *reat e0ertion. nor
can it nor ou*ht it to be (re1uently repeated" The principles, there(ore, so established are
deemed (undamental" And as the authority, (rom which they proceed, is supreme, and can
seldom act, they are desi*ned to be permanent"
This ori*inal and supreme will or*ani@es the *o'ernment, and assi*ns to di((erent departments
their respecti'e powers" 7t may either stop here. or establish certain limits not to be transcended
by those departments"
The *o'ernment o( the !nited #tates is o( the latter description" The powers o( the le*islature
are de(ined and limited. and that those limits may not be mista5en or (or*otten, the constitution
is written" To what purpose are powers limited, and to what purpose is that limitation
committed to writin*. i( these limits may, at any time, be passed by those intended to be
restrained; The distinction between a *o'ernment with limited and unlimited powers is
abolished, i( those limits do not con(ine the persons on whom they are imposed, and i( acts
pro2 [ !"#" 1$%, 1%%& hibited and acts allowed are o( e1ual obli*ation" 7t is a proposition too
plain to be contested, that the constitution controls any le*islati'e act repu*nant to it. or, that
the le*islature may alter the constitution by an ordinary act"
4etween these alternati'es there is no middle *round" The constitution is either a superior,
paramount law, unchan*eable by ordinary means, or it is on a le'el with ordinary le*islati'e
acts, and li5e other acts, is alterable when the le*islature shall please to alter it"
7( the (ormer part o( the alternati'e be true, then a le*islati'e act contrary to the constitution is
not law- i( the latter part be true, then written constitutions are absurd attempts, on the part o(
the people, to limit a power in its own nature illimitable"
,ertainly all those who ha'e (ramed written constitutions contemplate them as (ormin* the
(undamental and paramount law o( the nation, and conse1uently the theory o( e'ery such
*o'ernment must be, that an act o( the le*islature repu*nant to the constitution is 'oid"
This theory is essentially attached to a written constitution, and is conse1uently to be considered
by this court as one o( the (undamental principles o( our society" 7t is not there(ore to be lost
si*ht o( in the (urther consideration o( this sub+ect"
7( an act o( the le*islature, repu*nant to the constitution, is 'oid, does it, notwithstandin* its
in'alidity, bind the courts and obli*e them to *i'e it e((ect; ?r, in other words, thou*h it be not
law, does it constitute a rule as operati'e as i( it was a law; This would be to o'erthrow in (act
what was established in theory. and would seem, at (irst 'iew, an absurdity too *ross to be
insisted on" 7t shall, howe'er, recei'e a more attenti'e consideration"
7t is emphatically the pro'ince and duty o( the +udicial department to say what the law is" Those
who apply the rule to particular cases, must o( necessity e0pound and interpret that rule" 7( two
laws con(lict with each other, the courts must decide on the operation o( each" [ !"#" 1$%,
1%8& #o i( a law be in opposition to the constitution- i( both the law and the constitution apply
to a particular case, so that the court must either decide that case con(ormably to the law,
disre*ardin* the constitution. or con(ormably to the constitution, disre*ardin* the law- the
court must determine which o( these con(lictin* rules *o'erns the case" This is o( the 'ery
essence o( +udicial duty"
7( then the courts are to re*ard the constitution. and he constitution is superior to any ordinary
act o( the le*islature. the constitution, and not such ordinary act, must *o'ern the case to which
they both apply"
Those then who contro'ert the principle that the constitution is to be considered, in court, as a
paramount law, are reduced to the necessity o( maintainin* that courts must close their eyes on
the constitution, and see only the law"
This doctrine would sub'ert the 'ery (oundation o( all written constitutions" 7t would declare
that an act, which, accordin* to the principles and theory o( our *o'ernment, is entirely 'oid, is
yet, in practice, completely obli*atory" 7t would declare, that i( the le*islature shall do what is
e0pressly (orbidden, such act, notwithstandin* the e0press prohibition, is in reality e((ectual" 7t
would be *i'in* to the le*islature a practical and real omnipotence with the same breath which
pro(esses to restrict their powers within narrow limits" 7t is prescribin* limits, and declarin* that
those limits may be passed at pleasure"
That it thus reduces to nothin* what we ha'e deemed the *reatest impro'ement on political
institutions2a written constitution, would o( itsel( be su((icient, in America where written
constitutions ha'e been 'iewed with so much re'erence, (or re+ectin* the construction" 4ut the
peculiar e0pressions o( the constitution o( the !nited #tates (urnish additional ar*uments in
(a'our o( its re+ection"
The +udicial power o( the !nited #tates is e0tended to all cases arisin* under the constitution" [
!"#" 1$%, 1%3& ,ould it be the intention o( those who *a'e this power, to say that, in usin* it, the
constitution should not be loo5ed into; That a case arisin* under the constitution should be
decided without e0aminin* the instrument under which it arises;
This is too e0tra'a*ant to be maintained"
7n some cases then, the constitution must be loo5ed into by the +ud*es" And i( they can open it at
all, what part o( it are they (orbidden to read, or to obey;
There are many other parts o( the constitution which ser'e to illustrate this sub+ect"
7t is declared that =no ta0 or duty shall be laid on articles e0ported (rom any state"= #uppose a
duty on the e0port o( cotton, o( tobacco, or o( (lour. and a suit instituted to reco'er it" ?u*ht
+ud*ment to be rendered in such a case; ou*ht the +ud*es to close their eyes on the constitution,
and only see the law"
The constitution declares that =no bill o( attainder or e0 post (acto law shall be passed"=
7(, howe'er, such a bill should be passed and a person should be prosecuted under it, must the
court condemn to death those 'ictims whom the constitution endea'ours to preser'e;
=:o person,= says the constitution, =shall be con'icted o( treason unless on the testimony o( two
witnesses to the same o'ert act, or on con(ession in open court"=
Here the lan*ua*e o( the constitution is addressed especially to the courts" 7t prescribes, directly
(or them, a rule o( e'idence not to be departed (rom" 7( the le*islature should chan*e that rule,
and declare one witness, or a con(ession out o( court, su((icient (or con'iction, must the
constitutional principle yield to the le*islati'e act;
<rom these and many other selections which mi*ht be made, it is apparent, that the (ramers o(
the consti2 [ !"#" 1$%, 180& tution contemplated that instrument as a rule (or the *o'ernment
o( courts, as well as o( the le*islature"
Why otherwise does it direct the +ud*es to ta5e an oath to support it; This oath certainly applies,
in an especial manner, to their conduct in their o((icial character" How immoral to impose it on
them, i( they were to be used as the instruments, and the 5nowin* instruments, (or 'iolatin*
what they swear to supportH
The oath o( o((ice, too, imposed by the le*islature, is completely demonstrati'e o( the le*islati'e
opinion on this sub+ect" 7t is in these words- =7 do solemnly swear that 7 will administer +ustice
without respect to persons, and do e1ual ri*ht to the poor and to the rich. and that 7 will
(aith(ully and impartially dischar*e all the duties incumbent on me as accordin* to the best o(
my abilities and understandin*, a*reeably to the constitution and laws o( the !nited #tates"=
Why does a +ud*e swear to dischar*e his duties a*reeably to the constitution o( the !nited
#tates, i( that constitution (orms no rule (or his *o'ernment; i( it is closed upon him and cannot
be inspected by him"
7( such be the real state o( thin*s, this is worse than solemn moc5ery" To prescribe, or to ta5e
this oath, becomes e1ually a crime"
7t is also not entirely unworthy o( obser'ation, that in declarin* what shall be the supreme law o(
the land, the constitution itsel( is (irst mentioned. and not the laws o( the !nited #tates
*enerally, but those only which shall be made in pursuance o( the constitution, ha'e that ran5"
Thus, the particular phraseolo*y o( the constitution o( the !nited #tates con(irms and
stren*thens the principle, supposed to be essential to all written constitutions, that a law
repu*nant to the constitution is 'oid, and that courts, as well as other departments, are bound
by that instrument"
The rule must be dischar*ed"