Marbury v. Madison
Appointment- also act of the President, also
5 US 137 | Quebec
FACTS
Case is a petition for mandamus to compel James
Madison, Secretary of State, to deliver to William
Marbury his commission (letter of appointment) as
Justice of the Peace of the District of Columbia. Former
President John Adams appointed Marbury on the last
day of his term in office (a “midnight appointee”).
The commissions, including Marbury’s, were signed by
President Adams and sealed by John Marshall, then
Secretary of State now the Chief Justice of the Supreme
Court, but they were not delivered before the
expiration of Adams’ term as President.
Incumbent President Thomas Jefferson did not accept
the commissions because he believes they’re invalid
due to not being delivered before Adams’ term ended.
Thus, Marbury petitions for mandamus to compel
Madison to deliver his commission, to thereby
consummate his appointment as Justice of the Peace.
ISSUES
1) Has the applicant a right to the commission he
demands? YES
2) If he has a right, and that right has been violated, do
the laws of his country afford him a remedy? YES
3) If they do afford him a remedy, is it mandamus
issuing from the Court? NO RATIONALE
1) 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.
There is a difference between appointing and
commissioning an officer but both are necessary steps
in the total appointing process.
Sec. 2, Art. 2 of the Constitution: 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”
Steps in appointing: a. Nomination- sole act of the
President, completely voluntary
b.
voluntary, but it needs concurrence of Senate.
c. Commission- a duty enjoined by the Constitution,
different from appointment because they’re in different
sections of the Constitution and the President may b.
In Marbury’s case, he was appointed by the President
himself along with the consent of Senate, so it would
seem that the commissioning is only conclusive
evidence of his appointment, rather than a final hurdle
to his actual appointment.
The signing of the commission by the former President
is the last step in appointment. Because the commission
was signed, albeit not delivered, Marbury is for all
intents and purposes the Justice of the Peace of DoC.
Thus, HE HAS A RIGHT TO THE COMISSION.
The delivery of the commission to the recipient is not a
necessary requirement for the appointment to be valid.
It is a practice directed by convenience but not by law.
By law, it’s the president, not the one who delivers the
commission, who finalizes the appointment. Once the
President has signed the commission, the recipient is
appointed.
Any appointment is irrevocable because the appointee
is already vested with the right to the office that is
protected by law.
2) 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 of government is to afford that protection.
Blackstone states two cases in which a remedy is
afforded by mere operation of law. In all other cases,"
he says, "it is a general and indisputable rule, that
where there is a legal right, there is also a legal remedy
by suit, or action at law, when ever that right is
invaded."
Whether or not the legality of an act of a department
head can be examined by the court depends on the
nature of the act.
Where a person is directed by law to do a certain act
affecting the absolute rights of individuals, in the
performance of which he is not placed under the
particular direction of the president, and the
performance of which the president cannot lawfully
forbid, and therefore is never presumed to have
forbidden; as for example, to record a commission, or a
patent for land, which has received all the legal
solemnities; or to give a copy of such record; in such
cases, it is not perceived on what ground the courts of
the country are further excused from the duty of giving
judgment that right be done to an injured individual,
than if the same services were to be performed by a
person not the head of a department.
In acts of executive discretion, the court cannot exercise
jurisdiction, because such acts are within the political
character of the President. The President appoints
officers to the departments who can similarly act
according to their own discretion.
However, when the official has a duty imposed by the
legislature, then fulfilling the duty becomes a matter of
law.
Here, courts can exercise jurisdiction. When a duty is
assigned by law, and individual rights depend on the
performance of that duty, the person who was injured
by failure to fulfill the duty may ask a remedy from the
Court.
Thus, petition is denied.
Whether an act can become the law of the land even if
it is repugnant to the Constitution.
Constitution is either an unchangeable, superior,
paramount law, or like any other legislative acts, is
alterable when the legislature pleases.
If the legislature creates a law repugnant on the
Constitution, why should it be binding on the Courts
and oblige them to give it effect?
It is emphatically the duty of the judicial department to
say what the law is. If the court finds that both the law
and the Constitution are applicable in a case, and Court
must favor one over the other, the Constitution will be
favored at all times.
Powers of Congress allow it to pass laws that violate the
constitution. Thus, it is the duty of the Court to strike
down legislative acts that do not conform to the
principles of the Constitution.

Marbury already has a legal title to the office and a right

to the commission, the denial of which is a direct
violation of that right. Thus, Marbury can seek remedy.

3) Propriety of issuing a writ of mandamus is not by

virtue of the targeted office, but by the nature of the
thing to be done.

When executive discretion is exercised, Court is hands-

off. But when act is a duty imposed by law, and whose
accomplishment cannot be lawfully withheld by the
President, the Court can take action.

Although the laws are silent on the duty to transmit a

commission, Marbury is entitled to the commission
because it is a vested legal right by virtue of his
appointment.

Thus, mandamus is the proper remedy. d. However,

Court cannot issue mandamus unless it is shown to be
an exercise of appellate jurisdiction (in holding or
reversing the decision of a lower court).

To petition Court to issue for mandamus against an

officer for the delivery of the commission is in effect the
same as to sustain an original action for that paper,
therefore seems not to belong the appellate but to
original jurisdiction.