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Counsel for Marbury: If the Court please. The facts in this case are these: The plaintiff, Marbury, had been appointed by President John Adams to the office of Justice of the Peace for the District of Columbia, and his nomination has been confirmed by the Senate. His Commission had been made out, signed and sealed, but had not been delivered to him. When President John Adams went out of office and Thomas Jefferson became President, Jefferson's Secretary of State, James Madison, refused to deliver this Commission paper to the Plaintiff, Mr. Marbury, claiming that the Commission was not complete as it had not been delivered. President Jefferson claims that the office is still vacant, and will make another appointment.
It is to be regretted that partisan politics should enter into this case. Marbury is a Federalist appointed by a Federalist President, John Adams. Jefferson is an Anti-Federalist, a Republican-Democrat who desires to fill all appointive offices with applicants from his own party. James Madison, the Secretary of State, appointed to that position by Jefferson, of course is of the same political party and now refuses to deliver to this Plaintiff his Commission, which of right and law belongs to him. Hence this Mandamus action against Secretary Madison to compel him to deliver to the Plaintiff Marbury his Commission to enable him to discharge the duties of the office of Justice of the Peace in the District of Columbia.
Now, if the Court please, we think that when that paper was signed and sealed by the Secretary of State no further act was necessary to give Marbury a right to the office, and we submit authorities on this point for the consideration of this Court.
That the Plaintiff had a right to ask this Court for a Writ of Mandamus there can be no doubt, for the thirteenth section of the Judiciary Act, duly passed by Congress and signed by the President, gives certain parties that right.
This Government is a Representative Democracy, a Republic, a Government of the people, and when they by a majority of their representatives desire to make a law after due consideration, there should be, there can be, no power on earth given authority to unmake it. The people through their representatives make the laws in this country and neither the courts nor any other power have the right to annul or unmake what the people in their sovereign capacity have legally enacted into law.
This Judiciary Act is a law made after the Constitution and in point of time that gives it superiority to any law prior to it. It is true the Constitution does not give the Supreme Court the right to issue a Writ of Mandamus in its Original Jurisdiction, but the Judiciary Act by the 13th Section does so, and it is under this act that this action depends for its jurisdiction.
This law is the will and wish of the people and gives this plaintiff a right to a Writ of Mandamus to compel the Secretary of State, Mr. James Madison, to deliver to him his Commission and we respectfully ask this Court to grant the Writ.
Chief Justice: The Defendant's Counsel will now be heard.
Counsel for Defendant, Madison: If the Court please. We agree with Counsel for the Plaintiff that it is to be regretted that partisan politics should be referred to in this case, but of course it cannot in any way influence this honorable Court. Let it be said, however, that this case is but one of many that may be brought into this and other courts and therefore may be considered a test case.
On the fourth of March, when President Adams' Administration closed, he sat up till twelve o'clock midnight signing Commissions for officials he had appointed a few days before his term expired. All these officials were members of the Federalist party and were
to hold offices that should otherwise be filled by President Jefferson, who was the leader of the RepublicanDemocrat Party. This was very perplexing and ob-' structive to his administration. This is one of the many cases where the Commission was signed too late to be delivered to the Plaintiff, and President Jefferson considers the office vacant and will appoint one of his political party to fill this office.
Now, it is admitted that the Plaintiff cannot be capacitated to execute the duties of the office of Justice of the Peace until his Commission is delivered to him, and we claim the Defendant has a right to refuse to deliver it notwithstanding the fact that it had been signed by the President, John Adams, and sealed by his Secretary of State.
But the strong arm of defense set up in this case is that the law granting the right to this action for a Writ of Mandamus is contrary to the Constitution of the United States in that it is not one of the powers granted to that Court in its Original Jurisdiction.
The Constitution grants to this court only a limited number of Original Jurisdictional cases and this is not one of them.
The Constitution of the United States is the Supreme Law of the Land, so declared in the instrument itself. The people themselves have adopted and ratified this Constitution and they cannot by a subsequent law by an act of Congress set it aside. The Constitution of the United States is unlike that of any other. It is a written Constitution and is declared by its own terms to be the Supreme Law of the Land. In Great Britain, where they have no written Constitution, the Parliament is "omnipotent" above its constitution. The people of the United States have made their Constitution superior to any act of Congress that would conflict with it. The only way to make a law superior is by revolution or by changing it by amendment in a manner prescribed by the Constitution itself.
Therein lies the fundamental difference between the American Constitution and those of all other countries.
This Court will not proceed without precedent for there are several decisions already rendered in like cases in the several State Courts, citations to which will be made in our argument in this case.
Therefore we submit to this honorable Court that the Plaintiff has no right under the Constitution to ask this Court for this Writ of Mandamus and we ask for a decision in favor of the Defendant dismissing the action and with costs for the same.
The opinion of Chief Justice John Marshall in the Case of Marbury vs. Madison.
The Chief Justice: 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.
The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like any other acts, is alterable whenever the legislature shall please to alter it.
If the former alternative is 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.
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. These principles are therefore deemed fundamental. And as the authority from which they proceed is supreme, they are designed to be permanent.
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 to be considered by this Court, as one of the fundamental principles of our society.
It is emphatically the province and duty of the Judicial Department to say what the law is. If two laws conflict with each other, the Court must decide on the operation of each. This is of the very essence of judicial duty.
The judicial power of the United States is extended to all cases arising under the Constitution.
In some cases then the Constitution must be looked into by the Judges.
For example. It is declared by the Constitution that no person 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 departed from. If the legislature should change that rule, and declare one witness, or a confession out of Court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From this it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts as well as of the legislature. Otherwise why does it direct the judges to take an oath to support it?
The oath is in these words: “I do solemnly swear that I will administer justice without respect to per