CONSTITUTIONAL OPINIONS

OF

CHIEF JUSTICE MARSHALL.

John Marshall was nominated as Chief Justice of the United States by President Adams on the 20th, unanimously confirmed by the Senate on the 27th, and commissioned on the 31st of January, 1801. On the day Marshall took his seat as Chief Justice, February 4, 1801, he addressed a letter to President Adams in which he acknowledges the honor conferred on him and concludes by saying that he will enter immediately on the duties of the office and hopes never to give occasion to the President to regret having made the appointment.

The first important constitutional question after Marshall's accession to the bench came before the court in the case of

William Marbury v. James Madison.

February Term, 1803.

[1 Cranch's Reports, 137-180.]

The decision of the Chief Justice is universally regarded as the substantial foundation of the distinctive constitutional law of this country.

The propositions of law decided in this case are thus

stated by Mr. Justice Curtis in his edition of Decision of the Supreme Court of the United States:

An act of Congress repugnant to the Constitution is not law.

When the Constitution and an act of Congress are in conflict, the Constitution must govern the case to which both apply.

Congress cannot confer on this court any original jurisdiction.

To issue a writ of mandamus, requiring a Secretary of State to deliver a paper, would be an exercise of original jurisdiction not conferrible by Congress, and not conferred by the Constitution on this court. The thirteenth section of the Judiciary Act is inoperative, so far as it attempts to grant to this court power to issue writs of mandamus in classes of cases of original jurisdiction, not conferred by the Constitution on this court.

Briefly stated, the facts of the case are these: Toward the end of Adams' term as President he appointed a number of justices of the peace for the District of Columbia, which the Senate confirmed. Commissions to these officers, among them Marbury, had been made out, signed by the President, as the Constitution requires, sealed with the seal of the United States, and were ready for delivery, but remained undelivered in the office of the Secretary of State at the time Jefferson became President. The office was not one to which the President's power of removal extended. Jefferson's opinion was that the appointment was incomplete until consummated by delivery of the commission, and he forbade Madison, who was his Secretary of State, to deliver the commission to Marbury.1

1 Jefferson's Writings (Ford), X, 230; Marshall Memorial, I, 359.

3

Marbury v. Madison.

Marbury contended that having been appointed by the President, confirmed by the Senate, and his commission signed and sealed, the appointment was complete and vested in him a legal right to the office, and that it was a violation of this right to withhold the commission.1 Acting upon this theory, Marbury, at the December term, 1801, of the Supreme Court, by his counsel moved the court for a rule to Madison, Secretary of State, calling upon him to show cause why a mandamus 2 should not issue, commanding him to deliver to said Marbury his commission. The rule was granted and served; but no cause was shown by Madison. A mandamus was then moved for.

Because of its great importance we give the opinion of the Chief Justice at length, although one of the propositions discussed or decided, namely, that the commission was legally complete when the seal of the United States had been affixed to it by the Secretary of State, and that to withhold it was the violation of a positive legal right, is not strictly a constitutional question.3

1 Marshall Memorial, I, 358, 359.

2 A rule to show cause why a mandamus shall not issue is, in other words, a notice from the court calling upon the person to whom it is sent to make known to the court any reason, if he have any, why he should not be positively required to do some desired thing. The writ is called a mandamus, from its first word, meaning we command.

3 The court was constituted as follows:

JOHN MARSHALL, Chief Justice.

WILLIAM CUSHING,

Opinion.

MARSHALL, Chief Justice. 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 sub

1 The last term was that of December, 1801, but between that term and the August term the Judiciary Act was amended, the August term abolished, and the sitting of the Supreme Court was suspended for fourteen months.

For a full review of the political conflict which brought about the amendment of the Judiciary Act, the abolishing of the August term of the Supreme Court of the United States and the appointment of the "midnight judges" by President Adams, which appointment gave rise to the celebrated case now considered, see McMaster, Hist. of People of U. S., II, 532, 533; III, 164, 165; also Marshall Memorial, I, 430, 431.

The volumes of proceedings and addresses throughout the United States on February 4, 1901, the centenary of Marshall's appointment, known as " Marshall Day," edited by John F. Dillon and styled "John Marshall, Life, Character and Judicial Services," published by Callaghan & Company, Chicago, 1903, are referred to in the present publication as the "MARSHALL MEMORIAL."

ject, the following questions have been considered and decided:

1st. Has the applicant a right to the com

mission he demands?

Questions stated.

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.