From: V.K.Durham@comcast.net
To: V.K.Durham@comcast.net
Sent: 3/29/2013 7:11:43 P.M. Eastern Daylight Time
Subj: Marbury v. Madison, the US Supreme Court ruled that any law that violates
the Constitution is automatically void.
We live under a
government that passes unconstitutional laws, then drags its feet when hauled
before the Supreme Court to test that law's Constitutionality. But under
Marbury v. Madison, the US Supreme Court ruled that any law that violates the
Constitution is automatically void. And under John Bad Elk vs United States,
any citizen has a right to resist with lethal force any violation of their
civil rights by the application of unconstitutional laws.
Joe Biden's claim to a
government right to determine what guns We The People may be allowed to own
violates both the Second and Tenth Amendments, and under Marbury v. Madison,
any laws passed to limit our Second Amendment rights are automatically null and
void.
Mr. Chief Justice
MARSHALL delivered the opinion of the Court.
At the last term, on the
affidavits then read and filed with the clerk, a rule was granted in this case
requiring the Secretary of State to show cause why a mandamus [p154] should not
issue directing him to deliver to William Marbury his commission as a justice
of the peace for the county of Washington, in the District of Columbia.
No cause has been shown,
and the present motion is for a mandamus. The peculiar delicacy of this case,
the novelty of some of its circumstances, and the real difficulty attending the
points which occur in it require a complete exposition of the principles on
which the opinion to be given by the Court is founded.
These principles have
been, on the side of the applicant, very ably argued at the bar. In rendering
the opinion of the Court, there will be some departure in form, though not in
substance, from the points stated in that argument.
In the order in which
the Court has viewed this subject, the following questions have been considered
and decided.
1. Has the applicant a
right to the commission he demands?
2. If he has a right,
and that right has been violated, do the laws of his country afford him a
remedy?
3. If they do afford him
a remedy, is it a mandamus issuing from this court?
The first object of
inquiry is:
1. Has the applicant a
right to the commission he demands?
His right originates in
an act of Congress passed in February, 1801, concerning the District of
Columbia.
After dividing the
district into two counties, the eleventh section of this law enacts,
that there shall be
appointed in and for each of the said counties such number of discreet persons
to be justices of the peace as the President of the United States shall, from
time to time, think expedient, to continue in office for five years. [p155]
It appears from the
affidavits that, in compliance with this law, a commission for William Marbury
as a justice of peace for the County of Washington was signed by John Adams,
then President of the United States, after which the seal of the United States
was affixed to it, but the commission has never reached the person for whom it
was made out.
In order to determine
whether he is entitled to this commission, it becomes necessary to inquire
whether he has been appointed to the office. For if he has been appointed, the
law continues him in office for five years, and he is entitled to the
possession of those evidences of office, which, being completed, became his
property.
The second section of
the second article of the Constitution declares, "The President shall
nominate, and, by and with the advice and consent of the Senate, shall appoint
ambassadors, other public ministers and consuls, and all other officers of the
United States, whose appointments are not otherwise provided for."
The third section declares,
that "He shall commission all the officers of the United States."
An act of Congress
directs the Secretary of State to keep the seal of the United States, to make
out and record, and affix the said seal to all civil commissions to officers of
the United States to be appointed by the President, by and with the consent of
the Senate, or by the President alone; provided that the said seal shall not be
affixed to any commission before the same shall have been signed by the
President of the United States.
These are the clauses of
the Constitution and laws of the United States which affect this part of the
case. They seem to contemplate three distinct operations:
1. The nomination. This
is the sole act of the President, and is completely voluntary.
2. The appointment. This
is also the act of the President, and is also a voluntary act, though it can
only be performed by and with the advice and consent of the Senate. [p156]
3. The commission. To
grant a commission to a person appointed might perhaps be deemed a duty
enjoined by the Constitution. "He shall," says that instrument,
"commission all the officers of the United States."
The acts of appointing
to office and commissioning the person appointed can scarcely be considered as
one and the same, since the power to perform them is given in two separate and
distinct sections of the Constitution. The distinction between the appointment
and the commission will be rendered more apparent by adverting to that
provision in the second section of the second article of the Constitution which
authorises Congress to vest by law the appointment of such inferior officers as
they think proper in the President alone, in the Courts of law, or in the heads
of departments; thus contemplating cases where the law may direct the President
to commission an officer appointed by the Courts, or by the heads of
departments. In such a case, to issue a commission would be apparently a duty
distinct from the appointment, the performance of which perhaps could not
legally be refused.
Although that clause of
the Constitution which requires the President to commission all the officers of
the United States may never have been applied to officers appointed otherwise
than by himself, yet it would be difficult to deny the legislative power to
apply it to such cases. Of consequence, the constitutional distinction between
the appointment to an office and the commission of an officer who has been
appointed remains the same, as if in practice the President had commissioned
officers appointed by an authority other than his own.
It follows, too, from
the existence of this distinction that, if an appointment was to be evidenced
by any public act other than the commission, the performance of such public act
would create the officer, and if he was not removable at the will of the
President, would either give him a right to his commission or enable him to
perform the duties without it.
These observations are
premised solely for the purpose of rendering more intelligible those which apply
more directly to the particular case under consideration. [p157]
This is an appointment
made by the President, by and with the advice and consent of the Senate, and is
evidenced by no act but the commission itself. In such a case, therefore, the
commission and the appointment seem inseparable, it being almost impossible to
show an appointment otherwise, than by proving the existence of a commission;
still, the commission is not necessarily the appointment; though conclusive
evidence of it.
But at what stage does
it amount to this conclusive evidence?
The answer to this
question seems an obvious one. The appointment, being the sole act of the
President, must be completely evidenced, when it is shown that he has done
everything to be performed by him.
Should the commission,
instead of being evidence of an appointment, even be considered as constituting
the appointment itself, still it would be made when the last act to be done by
the President was performed, or, at furthest, when the commission was complete.
The last act to be done
by the President is the signature of the commission. He has then acted on the
advice and consent of the Senate to his own nomination. The time for
deliberation has then passed. He has decided. His judgment, on the advice and
consent of the Senate concurring with his nomination, has been made, and the
officer is appointed. This appointment is evidenced by an open, unequivocal
act, and, being the last act required from the person making it, necessaont-family: Arial, sans-serif; font-size: 10pt;">The signature is a
warrant for affixing the great seal to the commission, and the great seal is
only to be affixed to an instrument which is complete. It attests, by an act
supposed to be of public notoriety, the verity of the e point of time must
be taken when the power of the Executive over an officer, not removable at his
will, must cease. That point of time must be when the constitutional power of
appointment has been exercised. And this power has been exercised when the last
act required from the person possessing the power has been performed. This last
act is the signature of the commission. This idea seems to have prevailed with
the Legislature when the act passed, converting the Department [p158] of
Foreign Affairs into the Department of State. By that act, it is enacted that
the Secretary of State shall keep the seal of the United States, and shall make
out and record, and shall affix the said seal to all civil commissions to
officers of the United States, to be appointed by the President: . . . provided
that the said seal shall not be affixed to any commission before the same shall
have been signed by the President of the United States, nor to any other
instrument or act without the special warrant of the President therefor.
The signature is a
warrant for affixing the great seal to the commission, and the great seal is
only to be affixed to an instrument which is complete. It attests, by an act
supposed to be of public notoriety, the verity of the Presidential signature.
It is never to be
affixed till the commission is signed, because the signature, which gives force
and effect to the commission, is conclusive evidence that the appointment is
made.
The commission being
signed, the subsequent duty of the Secretary of State is prescribed by law, and
not to be guided by the will of the President. He is to affix the seal of the
United States to the commission, and is to record it.
This is not a proceeding
which may be varied, if the judgment of the Executive shall suggest one more
eligible, but is a precise course accurately marked out by law, and is to be
strictly pursued. It is the duty of the Secretary of State to conform to the
law, and in this, he is an officer of the United States, bound to obey the
laws. He acts, in this respect, as has been very properly stated at the bar,
under the authority of law, and not by the instructions of the President. It is
a ministerial act, which the law enjoins on a particular officer, for a
particular purpose.
If it should be supposed
that the solemnity of affixing the seal is necessary, not only to the validity
of the commission, but even to the completion of an appointment, still, when
the seal is affixed, the appointment is made, and [p159]="MsoNormal">
This idea is founded on
the supposition that the commission is not merely evidence of an appointment,
but is itself the actual appointment -- a supposition by no means
unquestionable. But, for the purpose of examining this objection fairly, let it
be conceded that the principle claimed for its support is established.
The appointment being,
under the Constitution, to be made by the President personally, the delivery of
the deed of appointment, if necessary to its completion, must be made by the
President, also. It is not necessary that the livery should be made personally
to the grantee of the office; it never is so made. The law would seem to
contemplate that it should be made to the Secretaryears possible to give them, they do
not shake the opinion which has been formed.
In considering this
question, it has been conjectured that the commission may have been assimilated
to a deed to the validity of which delivery is essential.
This idea is founded on
the supposition that the commission is not merely evidence of an appointment,
but is itself the actual appointment -- a supposition by no means
unquestionable. But, for the purpose of examining this objection fairly, let it
be conceded that the principle claimed for its support is established.
The appointment being,
under the Constitution, to be made by the President personally, the delivery of
the deed of appointment, if necessary to its completion, must be made by the
President, also. It is not necessary that the livery should be made personally
to the grantee of the office; it never is so made. The law would seem to
contemplate that it should be made to the Secretary of State, since it directs
the secretary to affix the seal to the commission after it shall have been
signed by the President. If then the act of livery be necessary to give
validity to the commission, it has been delivered when executed and given to
the Secretary for the purpose of being sealed, recorded, and transmitted to the
party.
But in all cases of
letters patent, certain solemnities are required by law, which solemnities are
the evidences [p160] of the validity of the instrument. A formal delivery to
the person is not among them. In cases of commissions, the sign manual of the President
and the seal of the United States are those solemnities. This objection,
therefore, does not touch the case.
It has also occurred as
possible, and barely possible, that the transmission of the commission and the
acceptance thereof, might be deemed necessary to complete the right of the
plaintiff.
The transmission of the
commission is a practice directed by convenience, but not by law. It cannot
therefore be necessary to constitute the appointment, which must precede it and
which is the mere act of the President. If the Executive required that every
person appointed to an office should himself take means to procure his
commission, the appointment would not be the less valid on that account. The
appointment is the sole act of the President; the transmission of the
commission is the sole act of the officer to whom that duty is assigned, and
may be accelerated or retarded by circumstances which can have no influence on
the appointment. A commission is transmitted to a person already appointed, not
to a person to be appointed or not, as the letter enclosing the commission
should happen to get into the post office and reach him in safety, or to
miscarry.
It
may have some tendency to elucidate this point to inquire whether the
possession of the original commission be indispensably necessary to authorize a
person appointed to any office to perform the duties of that office. If it was
necessary, then a loss of the commission would lose the office. Not only
negligence, but accident or fraud, fire or theft might deprive an individual of
his office. In such a case, I presume it could not be doubted but that, a copy
from the record of the Office of the Secretary of State would be, to every
intent and purpose, equal to the original. The act of Congress has expressly
made it so. To give that copy validity, it would not be necessary to prove that
the original had been transmitted and afterwards, lost. The copy would be
complete evidence that the original had existed, and that the appointment had
been made, but not that the original had been transmitted. If, indeed, it
should appear that [p161] the original had been mislaid in the Office of State,
that circumstance would not affect the operation of the copy. When all the
requisites have been performed, which authorize a recording officer to record
any instrument whatever, and the order for that purpose has been given, the
instrument is in law considered as recorded, although the manual labour of
inserting it in a book kept for that purpose, may not have been performed.
In
the case of commissions, the law orders the Secretary of State to record them.
When, therefore, they are signed and sealed, the order for their being recorded
is given, and, whether inserted in the book or not, they are in law recorded.
A
copy of this record is declared equal to the original, and the fees to be paid
by a person requiring a copy are ascertained by law. Can a keeper of a public
record erase therefrom, a commission which has been recorded? Or can he refuse
a copy thereof, to a person demanding it on the terms prescribed by law?
Such
a copy would, equally with the original, authorize the justice of peace to
proceed in the performance of his duty, because it would, equally with the
original, attest his appointment.
If
the transmission of a commission be not considered as necessary to give
validity to an appointment, still less is its acceptance. The appointment is
the sole act of the President; the acceptance is the sole act of the officer,
and is, in plain common sense, posterior to the appointment. As he may resign,
so may he refuse to accept; but neither the one, nor the other, is capable of
rendering the appointment a nonentity.
That
this is the understanding of the government is apparent from the whole tenor of
its conduct.
A
commission bears date, and the salary of the officer commences from his
appointment, not from the transmission or acceptance of his commission. When a
person appointed to any office refuses to accept that office, the successor is
nominated in the place of the person who [p162] has declined to accept, and not
in the place of the person who had been previously in office and had created
the original vacancy.
It
is, therefore, decidedly the opinion of the Court that, when a commission has
been signed by the President, the appointment is made, and that the commission
is complete, when the seal of the United States has been affixed to it by the
Secretary of State.
Where
an officer is removable at the will of the Executive, the circumstance which
completes his appointment is of no concern, because the act is at any time
revocable, and the commission may be arrested, if still in the office. But when
the officer is not removable at the will of the Executive, the appointment is
not revocable, and cannot be annulled. It has conferred legal rights which
cannot be resumed.
The
discretion of the Executive is to be exercised until the appointment has been
made. But having once made the appointment, his power over the office is
terminated in all cases, where by law the officer is not removable by him. The
right to the office is then in the person appointed, and he has the absolute,
unconditional power of accepting, or rejecting, it.
Mr.
Marbury, then, since his commission was signed by the President and sealed by
the Secretary of State, was appointed, and as the law creating the office gave
the officer a right to hold [it] for five years, independent of the Executive,
the appointment was not revocable, but vested in the officer legal rights which
are protected by the laws of his country.
To
withhold the commission, therefore, is an act deemed, by the Court, not
warranted by law, but violative of a vested legal right.
This
brings us to the second inquiry, which is:
2.
If he has a right, and that right has been violated, do the laws of his country
afford him a remedy? [p163]
The
very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he receives an injury.
One of the first duties of government is to afford that protection. In Great
Britain, the King himself is sued in the respectful form of a petition, and he
never fails to comply with the judgment of his court.
In
the third volume of his Commentaries, page 23, Blackstone states two cases in
which a remedy is afforded by mere operation of law.
"In
all other cases", he says, "it is a general and indisputable rule
that where there is a legal right, there is also a legal remedy, by suit or
action at law, whenever that right is invaded."
more: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZO.html
