馬伯里訴麥迪遜案原文

1、Page 225 U.S. 137, *; 2 L. Ed. 60, *;1803 U.S. LEXIS 352, *; 1 Cranch 1371 of 1 DOCUMENTWILLIAM MARBURY v. JAMES MADISON, SECRETARY OF STATE OF THE UNITED STATES.SUPREME COURT OF THE UNITED STATES5 U.S. 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352; 1 Cranch 137February 24, 1803, Decided PRIOR HISTORY: *1 A

2、T the last term, viz. December term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel, Charles Lee, esq. late attorney general of the United States, severally moved the court for a rule to James Madison, secretary of state of the United States, to show

3、 cause why a mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as justices of the peace in the district of Columbia. This motion was supported by affidavits of the following facts; that notice of this motion had been given to Mr. Madison

4、; that Mr. Adams, the late president of the United States, nominated the applicants to the senate for their advice and consent to be appointed justices of the peace of the district of Columbia; that the senate advised and consented to the appointments; that commissions in the due form were signed by

5、 the said president appointing them justices, &c. and that the seal of the United States was in due form affixed to the said commissions by the secretary of state; that the applicants have requested Mr. Madison to deliver them their said commissions, who has not complied with that request; and t

6、hat *2 their said commissions are withheld from them; that the applicants have made application to Mr. Madison as secretary of state of the United States at his office, for information whether the commissions were signed and sealed as aforesaid; that explicit and satisfactory information has not bee

7、n given to that enquiry, either by the secretary of state or by any officer of the department of state; that application has been made to the secretary of the Senate for a certificate of the nomination of the applicants, and of the advice and consent of the senate, who has declined giving such a cer

8、tificate; whereupon a rule was laid to show cause on the 4th day of this term. This rule having been duly served, DISPOSITION: The rule was discharged. CASE SUMMARY:PROCEDURAL POSTURE: At a prior term, the Court granted an applicant a rule directing the Secretary of State of the United States to sho

9、w cause why a mandamus should not issue commanding him to deliver to the applicant his commission as a justice of the peace. No cause was shown, so the applicant moved for a mandamus.OVERVIEW: The applicant and two others contended that the late President of the United States had nominated them to t

10、he Senate and that the Senate had advised and consented to their appointments as justices of the peace. The commissions were signed by the late President and the seal of the United States was affixed to the commissions by the Secretary of State. The commissions were withheld from the applicants and

11、they requested their delivery. The Court granted a rule to show cause, requiring the Secretary to show cause why a mandamus should not issue to direct him to deliver to the commissions. No cause was shown and the applicant filed a motion for a mandamus. The Court determined that the applicant had a

12、vested legal right in his appointment because his commission had been signed by the President, sealed by the Secretary of State, and the appointment was not revocable. The Court found that because the applicant had a legal title to the office, the laws afforded him a remedy. However, the Court held

13、that § 13 of the Act of 1789, giving the Court authority to issue writs of mandamus to an officer, was contrary to the Constitution as an act of original jurisdiction, and therefore void.OUTCOME: The rule was discharged.CORE TERMS: appointment, mandamus, secretary of state, appointed, seal, leg

14、al rights, original jurisdiction, removable, affixed, act of congress, vested, person appointed, written constitutions, secretary, authorize, signature, recorded, patent, heads of departments, repugnant, solemnity, inferior, supposed, enquire, declare, judicial power, transmission, transmitted, conc

15、lusive, examinableLexisNexis(R) HeadnotesConstitutional Law > The Presidency > Appointment of OfficialsMilitary & Veterans Law > Defense Powers > U.S. PresidentHN1 U.S. Const. art. II, § 2 declares, that the president shall nominate, and, by and with the advice and consent of th

16、e senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for. U.S. Const. art. II, § 3 declares, that he shall commission all the officers of the United States.Administrative Law > Sepa

17、ration of Powers > Executive ControlsConstitutional Law > The Presidency > Appointment of OfficialsHN2 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

18、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.Administrative Law > Separation of Powers >

19、; Executive ControlsConstitutional Law > Congressional Duties & Powers > General OverviewConstitutional Law > The Presidency > Appointment of OfficialsHN3 U.S. Const. art. II, § 2 authorizes Congress to vest, by law, the appointment of such inferior officers, as they think prope

20、r, in the President alone, in the courts of law, or in the heads of departments.Constitutional Law > The Presidency > Appointment of OfficialsHN4 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 bei

21、ng 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.Administrative Law > Separation of Powers > Executive ControlsConstitu

22、tional Law > The Presidency > Appointment of OfficialsHN5 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.Constitutional Law > The Presidency

23、 > Appointment of OfficialsHN6 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

24、 at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed.Constitutional Law > The Presidency > Appointment of OfficialsHN7 The discretion of the executive is to be exercised until the appointment has been mad

25、e. 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.Constitutional Law &g

26、t; Substantive Due Process > Scope of ProtectionGovernments > Legislation > Statutory Remedies & RightsHN8 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 o

27、f government is to afford that protection.Governments > Legislation > Statutory Remedies & RightsHN9 Where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.Constitutional Law > The Judiciary > Case or Controversy > Polit

28、ical QuestionsHN10 The question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act.Constitutional Law > The Presidency > Foreign AffairsConstitutional Law > The Judiciary > Case or Controver

29、sy > Political QuestionsConstitutional Law > Separation of PowersHN11 By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political c

30、haracter, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executi

31、ve discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.Constitutional Law > The Judiciary >

32、Case or Controversy > Political QuestionsGovernments > Legislation > Statutory Remedies & RightsHN12 Where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive po

33、ssesses a Constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who conside

34、rs himself injured, has a right to resort to the laws of his country for a remedy.Constitutional Law > Separation of PowersGovernments > Legislation > Statutory Remedies & RightsHN13 The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the ju

35、dicial authority.Civil Procedure > Remedies > Writs > Common Law Writs > MandamusHN14 Whenever there is a right to execute an office, perform a service, or exercise a franchise (more specifically if it be in a matter of public concern, or attended with profit) and a person is kept out of

36、 the possession, or dispossessed of such right, and has no other specific legal remedy, the court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government. This writ ought to be used upon all occasion

37、s where the law has established no specific remedy, and where in justice and good government there ought to be one.Civil Procedure > Remedies > Writs > Common Law Writs > MandamusHN15 To render the mandamus a proper remedy, the officer to whom it is directed, must be one to whom, on lega

38、l principles, such writ may be directed; and the person applying for it must be without any other specific and legal remedy.Civil Procedure > Trials > Jury Trials > Province of Court & JuryConstitutional Law > The Judiciary > Case or Controversy > Political QuestionsConstitutio

39、nal Law > Separation of PowersHN16 The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the Constitution and law

40、s, submitted to the executive, can never be made in this court.Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General OverviewCivil Procedure > Appeals > Appellate Jurisdiction > State Court ReviewConstitutional Law > The Judiciary > Jurisdiction > General

41、OverviewHN17 The Constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in

42、 some form, may be exercised over the present case; because the right claimed is given by a law of the United States. In the distribution of this power it is declared that the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and t

43、hose in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.Civil Procedure > Jurisdiction > Jurisdictional Sources > Constitutional SourcesCivil Procedure > Jurisdiction > Subject Matter Jurisdiction > General OverviewConstitutio

44、nal Law > The Judiciary > Jurisdiction > General OverviewHN18 If Congress remains at liberty to give the Supreme Court appellate jurisdiction, where the Constitution has declared their jurisdiction shall be original; and original jurisdiction where the Constitution has declared it shall be

45、appellate; the distribution of jurisdiction, made in the Constitution, is form without substance.Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General OverviewCivil Procedure > Appeals > Appellate Jurisdiction > State Court ReviewConstitutional Law > Supremacy C

46、lause > General OverviewHN19 When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of th

47、e supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not o

48、riginal. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning.Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overvie

49、wCivil Procedure > Remedies > Writs > Common Law Writs > MandamusCivil Procedure > U.S. Supreme Court Review > General OverviewHN20 It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not crea

50、te that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to appellate, but to original jurisdiction.Constituti

51、onal Law > Supremacy Clause > General OverviewHN21 The Constitution of the United States establishes certain limits not to be transcended by the different departments of the government. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgot

52、ten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if

53、 those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution

54、by an ordinary act.Constitutional Law > Supremacy Clause > General OverviewHN22 Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of th

55、e legislature, repugnant to the Constitution, is void.Constitutional Law > The Judiciary > Case or Controversy > Constitutionality of Legislation > General OverviewConstitutional Law > Separation of PowersHN23 It is emphatically the province and duty of the judicial department to say

56、what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a p

57、articular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.Con

58、stitutional Law > The Judiciary > Case or Controversy > Constitutional Questions > General OverviewConstitutional Law > The Judiciary > Jurisdiction > General OverviewConstitutional Law > Supremacy Clause > General OverviewHN24 The judicial power of the United States is ex

59、tended to all cases arising under the Constitution.Constitutional Law > Supremacy Clause > General OverviewHN25 A law repugnant to the Constitution is void; the courts, as well as other departments, are bound by that instrument.LAWYERS' EDITION HEADNOTES: The Supreme Court of the United States has not power to issue a mandamus to a Secretary of State of the United States, it being an exercise of original jurisdiction not warranted by the constitution.Congress has not power to give original jurisdiction to the Supreme Court in other cases than those described in