Gambar halaman
PDF
ePub

deliver to said Marbury his commission as justice of peace for the district of Columbia. In support of this motion for a rule, it was proved by affidavits, that John Adams, late president of the United States, had nominated Marbury to the senate as justice of peace for the district; that the senate had approved the nomination ; that a commission had, thereupon, been drawn up, signed by the president, and sealed with the seal of the United States; but that Mr. Madison refused to deliver the commission so signed and sealed.*

The rule was granted and served ; but no cause was shown by Mr. Madison. A mandamus was then moved for. Upon this motion the chief justice delivered the opinion of the court on the 24th of February, 1803.

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 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 :

* The commission had not been delivered when Thomas Jefferson succeeded Mr. Adams in the presidential chair. Mr. Jefferson did not think the appointment complete until delivery of the commission, and directed his secretary of state not to deliver it. See Jefferson's Correspondence, vol. IV., p. 372, 2d ed.

Ist. Has the applicant a right to the commission he demands ?

2d. If he has a right, and that right has been violated, do the laws of his country afford him a remedy ?

3d. If they do afford him a remedy, is it a mandamus issuing from this court ?

The first object of inquiry is, 1st. 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."

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 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."

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 : — . Ist. 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.

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 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 authorizes congress si 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.

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, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction.

Some point of time must be taken when the power of the executive over an officer not removable at his will must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission. This idea seems to have prevailed with the legislature when the act passed converting the department 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

« SebelumnyaLanjutkan »