these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. departed from. If the legislature should change From these, and many other selections which Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct This doctrine would subvert the very founda- in their official character. How immoral to tion of all written constitutions. It would de- impose it on them, if they were to be used as clare that an act which, according to the princi- the instruments, and the knowing instruments, ples and theory of our government, is entirely for violating what they swear to support! void, is yet, in practice, completely obligatory. The oath of office, too, imposed by the legisIt would declare that if the legislature shall do lature, is completely demonstrative of the legiswhat is expressly forbidden, such act, notwith-lative opinion on this subject. It is in these standing the express prohibition, is in reality words: "I do solemnly swear that I will adeffectual. It would be given to the legislature minister justice without respect to persons, and a practical and real omnipotence, with the same do equal right to the poor and to the rich; and breath which professes to restrict their powers that I will faithfully and impartially discharge within narrow limits. It is prescribing limits, all the duties incumbent on me as and declaring that those limits may be passed cording to the best of my abilities and underat pleasure. standing agreeably to the constitution and laws of the United States." That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection. The judicial power of the United States is extended to all cases arising under the constitution. 179*] *Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? There are many other parts of the constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law? The constitution declares "that no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve? "No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be ac Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. The rule must be discharged. In Virginia it is not absolutely necessary, in all cases, to sue the maker of a promissory note, to entitle the holder to an action against the indorser. If a promissory note of a third person be indorsed by the purchaser of goods to the vendor, as a conditional payment for the goods; quare, whether the vendor is, in any case, obliged to sue the maker of the note before he can resort to the purchaser of the goods on the original contract of sale? A suit against the defendant as indorser of the note, and a suit against the defendant for the goods sold, are upon distinct and different causes of action; and the first cannot be pleaded in bar of the second. It is not necessary for the plaintiff to offer to return the note, to entitle him to bring suit for | said note, under such circumstances, and the the goods sold. ERROR from the circuit courthof of trict of Columbia, sitting in the county of Alexandria. This was an action on the case for goods sold and delivered by Young & Co. to Clark. The declaration had three counts; one for the price of the goods; one on a quantum valebant; and one for money had and received. The cause came on to be tried in the court below, on the general issue, at April term, 1802. The facts, on the trial, appeared to be, that on the 9th of September, 1794, Young & Co. sold to Clark 400 bushels of salt, at 4s. 3d. per bushel, amounting to 283 dollars and 33 cents. At the time of the sale and delivery of the salt, Clark assigned to Young & Co. a negotiable promissory note, made by one Mark Edgar to Pickersgill & Co. and by them indorsed to Clark, dated September 5th, 1794, for 289 dollars, payable 60 days after date, at the bank of Alexandria. That Young & Co. instituted a suit in Fairfax county court, in Virginia, against Clark, on his indorsement of this note; upon the trial of which cause, Clark, by his counsel, "prayed the opinion of the court, whether the plaintiffs could maintain their action against him, previous to their having commenced a suit and obtained judgment against the drawer, or maker of the note; and until his insolvency should appear;" "and the court gave it as their opinion that they could not; and directed the jury accordingly." Whereupon, a verdict was found for the defendant. It also appeared that at the time the note was indorsed by Clark to Young & Co. as well as at the time when it became payable, Mark Edgar, the drawer of the note, was in bad circumstances, and was supposed and reputed to be insolvent. And that about the middle or last of December, 1794, he left Alexandria, and had never returned to it. 182*] *The record which came up to this court contained three bills of exceptions: 1. The first contained a demurrer, on the part of the defendant below, to the evidence, which the circuit court refused to compel the plaintiffs to join. This exception was abandoned by the counsel for the plaintiff in error. 2. The second bill of exceptions was in these words: "memorandum, in the trial of this cause, the defendant gave in evidence to the jury, that the plaintiffs had instituted a suit against him, in the county court of Fairfax, upon the indorsement of the promissory note of Mark Edgar, herein before mentioned; the proceedings in which said suit are in these words, to wit:" (here was inserted the record of Fairfax county court,) "Whereupon, the counsel for the defendant prayed the court to instruct the jury, that if, from the evidence given in this cause, they should be of opinion that the promissory note aforesaid, was indorsed by the defendant to the plaintiffs, in consequence of the goods, wares, and merchandise, sold as aforesaid, (although the said indorsement was not intended as an absolute payment for the said goods, wares and merchandise, or received as such by the plaintiffs, but merely as a conditional payment thereof,) yet the receipt of the institution of the aforesaid suit by the plaintiffs against the defendant upon his indorsement aforesaid, made the note so far a payment to said plaintiffs, for the said goods, wares and merchandise, as to preclude them from sustaining any action against the said defendant for the goods, wares and merchandise, until they had taken such measures against the said Mark Edgar, as were required by the laws of Virginia; and that the plaintiffs, having instituted the said suit upon the said note against the defendant, and that having been decided against the said plaintiffs, were barred from sustaining this action against the said defendant. But the court refused to give the instruction as prayed, and instructed the jury that if they should be of opinion, from the evidence, that the salt was sold and delivered by the plaintiffs to the defendant, and the note was indorsed by the defendant to the plaintiffs in consequence of the salt sold, although the said indorsement was not intended as an absolute payment [*183 and received as such by the plaintiffs, but merely as a conditional payment thereof, then the same is a discharge for the salt sold, unless it is proved that due diligence has been used by the plaintiffs to receive the money due on the note; but the bringing a suit against Mark Edgar is not absolutely a necessary part of said diligence; but the want of such suit may be accounted for by the insolvency of the said Edgar, if proved; or by the conduct of the defendant himself preventing such suit; to which refusal and direction of the court, the defendant, by his counsel, prays leave to except," &c. 3. The third bill of exceptions stated, that "the defendant by his counsel then prayed the opinion of the court and their direction to the jury, that the defendant was entitled to a credit for the amount of the said note, unless the plaintiffs could show that they had instituted a suit thereon against Edgar; or that Edgar had taken the oath of an insolvent debtor, or had absconded, at the time the note became payable; or unless the plaintiffs could show that they had offered to return and reassign the said note to the said defendant previous to the in stitution of this suit. But the court having before, in the trial of the said cause, on application by the defendant to instruct the jury in the manner set forth in his second bill of exceptions, given directions to the jury, comprehending all the material points contained in the above prayer, refused to give the instruction as prayed, to which refusal the defendant, by his counsel, prayed leave to except," &c. Verdict and judgment for the plaintiffs, for the full amount of the salt sold; on which judg ment the defendant brought a writ of error to this court. Swann and Mason, for the plaintiff in error. C. Lee and E. J. Lee, for the defendants. Swann. If a note is indorsed to the vendor at the time of the sale of goods, although it is not agreed to be an absolute *payment, [*184 yet it is a conditional payment, viz., if the note be paid, or if it be indorsed over by the vendor, or if he is guilty of laches. 5 Term Rep. 513. Kearslake v. Morgan. In that case the plea (which was adjudged good on demurrer) stated that the note of one W. Pierce was indorsed by Company, 2 Burr. 1000. Carth. 448. 5 Mod. 402. So it lies to put the corporate seal to an instrument. 4 Term Rep. 699. To commissioners of the excise to grant a permit. 2 Term Rep. 381. To admit to an office. 3 Term Rep. 575. To deliver papers which concern the public. 2 Sid. 31. A mandamus will sometimes 153*] lie in a *doubtful case, 1 Lev. 113, to be further considered on the return. 2 Lev. 14. 1 Sid. 169. It lies to be admitted a member of a church. 3 Burr. 1265, 1043. The process is as ancient as the time of Edw. II. 1 Lev. 23. The first writ of mandamus is not peremptory, it only commands the officer to do the thing, or show cause why he should not do it. If the cause returned be sufficient, there is an end of the proceeding; if not, a peremptory mandamus is then awarded. It is said to be a writ of discretion. But the discretion of a court always means a sound, legal discretion, not an arbitrary will. If the applicant makes out a proper case, the court are bound to grant it. They can refuse justice to no man. On a subsequent day, and before the court had given an opinion, Mr. Lee read the affidavit of Hazen Kimball, who had been a clerk in the office of the Secretary of State, and had been to a distant part of the United States, but whose return was not known to the applicant till after the argument of the case. 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 countries, the 11th 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 [*155 in compliance with this law, a commission for William Marbury, as a justice of the 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 2d section of the 2d article of the constitution declares, that "the president shall nominate, and, by and with the advice and consent of the senate, shall appoint, ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for." It stated that on the third of March, 1801, he was a clerk in the department of state. That there were in the office, on that day, commissions made out and signed by the president, appointing William Marbury a justice of peace for the county of Washington; and Robert T. The 3d section declares, that "he shall comHooe a justice of the peace for the county of mission all the officers of the United States." Alexandria, in the District of Columbia. An act of congress directs the secretary of Afterwards, on the 24th February, the follow-state to keep the seal of the United States, "to ing opinion of the Court was delivered by the make out and record, and affix the said seal to Chief Justice. Opinion of the Court. At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the secretary of state to 154*] 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. all civil commissions to officers of the United States, to be appointed by the president, by and with the consent of the senate, or by the president alone; provided, that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States." These are the clauses of the constitution and laws of the United States, which affect this part of the case. They seem to contemplate three distinct operations: 1st. The nomination. This is the sole act of the president, and is completely voluntary. 2d. The appointment. This is also the act of the president, and is also a voluntary act, though it can only be performed by and with the advice and consent of the senate. These principles have been, on the side of the *3d. The commission. To grant a [*156 applicant very ably argued at the bar. In ren- commission to a person appointed, might, perdering the opinion of the court, there will be haps, be deemed a duty enjoined by the consome departure in form, though not in sub-stitution. "He shall," says that instrument, stance, from the points stated in that argument. "commission all the officers of the United In the order in which the court has viewed States." this subject, the following questions have been considered and decided. 1st. 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 I a remedy? 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 averting to that provision in the second section of the second article of the constitution, which authorizes congress "to vest, by law, the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments;" thus contemplating cases where the law may direct the president to commission an officer appointed by the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appoint ment, 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 ase under consideration. 157*] *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 he 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 [*158 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 the commission is valid. No other [*159 solemnity is required by law; no other act is to be performed on the part of the government. All that the executive can do to invest the person with his office is done; and unless the appointment be then made, the executive cannot make one without the co-operation of others. After searching anxiously for the principles on which a contrary opinion may be supported, none have been found which appear of sufficient force to maintain the opposite doctrine. Such as the imagination of the court could suggest, have been very deliberately examined, and after allowing them all the weight which it appears possible to give them, they do not shake the opinion which has been formed. In considering this question, it has been con 159 SUPREME COURT OF THE UNITED STATES. jectured that the commission may have been | ity, it would not be necessary to prove that the 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 It is not necessary that the president also. delivery 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 delivery 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 solemni160*] ties are the evidence 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. original had been transmitted and afterwarde 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 appointAs he may resign, so may he refuse to ment. 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 *has declined to accept, and not in the [*162 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. It may have some tendency to elucidate this point, to inquire whether the possession of the Where an officer is removable at the will of original commission be indispensably necessary to authorize a person, appointed to any office, to perform the duties of that office. If it was nec- the executive, the circumstance which comessary, then a loss of the commission would pletes his appointment is of no concern; belose the office. Not only negligence, but acci- cause the act is at any time revocable; and the dent or fraud, fire or theft, might deprive an commission may be arrested, if still in the office. In such a case, I pre- But when the officer is not removable at the individual of his office. sume it could not be doubted but that a copy will of the executive, the appointment is not from the record of the office of the Secretary of revocable, and cannot be annulled. It has conThe discretion of the executive is to be exerState would be, to every intent and purpose, ferred legal rights which cannot be resumed. Cranch 1. equal to the original. The act of congress has To give that copy valid-cised until the appointment has been made. expressly made it so. 63 |