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In order to determine whether he is entitled to this commission, it becomes necessary to enquire 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; 1st, the nomination. This is the sole act of the President, and is completely voluntary. 2nd, 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. 3rd, the commission. a commission to a person appointed, might perhaps be deemed a duty enjoined by the Constitution. “He shall,” says that instrument, “commission all officers of the United States.'
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.
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 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.
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.
The commission being signed, the subsequent duty of the Secretary of State is prescribed by law, and is 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, under the authority of the 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.
It is not necessary that 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.
To withhold his (Marbury's) 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 enquiry, which is,
2. If he has a right and that right has been violated, do the laws of his country afford him a remedy?
Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.
It remains to be inquired whether, thirdly, He is entitled to the remedy for which he applies. This depends on, first, the nature of the writ applied for, and, secondly, the power of this court.
Blackstone, in the third volume of his commentaries, page 110, defines a mandamus to be, "a command issuing in the king's name from a court of king's bench, and directed to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king's bench has previously determined, or at least supposes, to be consonant to right and justice.
This, then, is a plain
case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be enquired, whether it can issue from this court.
"The act to establish the judicial courts of the United States authorizes the Supreme Court 'to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.'
"The Secretary of State, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.
The question whether an act repugnant to the Constitution can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, 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 those limits do not confine the persons on whom they are imposed, and if 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 by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
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 the legislature, repugnant to the Constitution, is void.
This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.
If an act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the judical department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conAlict 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 particular 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 thes 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 paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, it yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers with narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. *
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 (for a mandamus) must be discharged.
THE PRESIDENT'S DIPLOMATIC AND TREATY-MAKING
JONES v. UNITED STATES.
137 U. S., 202. 1890.
This was an indictment, found in the District Court of the United States for the District of Maryland, alleging that Henry Jones, late of that District, on September 14, 1889, at Navassa Island, a place which then and there was under the sole and exclusive jurisdiction of the United States and out of the jurisdiction of any particular state or district of the United States, murdered one Thomas N. Foster. Navassa Island was situated in the Caribbean Sea and contained a deposit of guano. An Act of Congress relating to the discovery and occupation by citizens of the United States of guano islands not within the lawful jurisdiction of any other government, provided that the President should have the power to extend the jurisdiction of the United States over the islands so occupied. Evidence was introduced to show that the executive branch of the federal government had extended the jurisdiction of the United States to Navassa Island. The District of Maryland was the District of the United States into which Jones was first brought from Navassa Island. In the District Court, the Government sought to establish the right of the federal court to try Jones for the murder committed on the above mentioned island under the Revised Statutes of the United States, Section 1039, providing for the punishment of murder committed "within any fort, arsenal, dock-yard, magazine, or any other place or district or country under the exclusive jurisdiction of the United States.” Jones questioned the validity of the Act of Congress concerning guano islands, especially the power of the President, under the Act. Jones was convicted in the District Court and sentenced to death. An appeal was taken to the Supreme Court of the United States.
MR. JUSTICE GRAY delivered the opinion of the court. By the law of nations, recognized by all civilized States, dominion of new territory may be acquired by discovery and occupation, as well as by cession or conquest; and when citizens, or subjects of one