CONSTITUTIONAL OPINIONS OF CHIEF JUSTICE MARSHALL. John Marshall received the appointment of chief justice of the United States on the 31st of January, 1801; he was appointed to that office by President Adams, with the unanimous approval of the Senate. He took his seat on the bench at the ensuing term of the supreme court; but no important case, involving a constitutional question, came before him until the February term of 1803. The first of that nature was the case of WILLIAM MARBURY v. JAMES MADISON. [1 Cranch's Reports, 137-180.] The facts of this case were as follows:-At the December term of the supreme court, 1801, William Marbury, by his counsel, moved the court for a rule to James Madison, secretary of state of the United States, calling upon him to show cause why a mandamus* should not issue, commanding him to * 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. 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 comnission 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. 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 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 Febru ary, 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: 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. 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 "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, |